| Matter of New York State Off. of Alcoholism & Substance Abuse Servs.(Ortiz) |
| 2009 NY Slip Op 03809 [62 AD3d 1118] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Arbitration between New York State Office ofAlcoholism and Substance Abuse Services et al., Appellants, and Victor Ortiz et al.,Respondents. |
—[*1] William P. Seamon, New York State Public Employees Federation, Albany (Edward J.Aluck of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Egan, Jr., J.), entered November 30,2007 in Albany County, which, among other things, denied petitioners' application pursuant toCPLR 7503 to stay arbitration between the parties.
Respondent Victor Ortiz was employed for 18 years by petitioner New York State Office ofAlcoholism and Substance Abuse Services (hereinafter OASAS). As an employee of OASAS,Ortiz was a member of the New York State Public Employees Federation, AFL-CIO (hereinafterPEF) which, in turn, was party to a collective bargaining agreement (hereinafter CBA) with thestate. Pursuant to Mental Hygiene Law § 19.07 and regulations promulgated by OASAS(see 14 NYCRR part 853), counselors with OASAS are required to maintain propercredentialing in order to provide services to persons suffering from alcohol and substance abuse,chemical dependence or compulsive gambling.
Ortiz was terminated from his position as an Addictions Counselor II five days after theexpiration of his certification as a Credentialed Alcoholism and Substance Abuse Counselor(hereinafter CASAC). In terminating Ortiz, OASAS admittedly did not comply with the [*2]disciplinary procedure set forth in the CBA. The question before uson this appeal is whether the CBA entitles Ortiz to arbitrate the applicability of the disciplinaryprocedures under the CBA to his termination for failure to maintain his CASACcertification—a statutory, minimum qualification for his position. Believing that OASAS'sadherence to the CBA was required, Ortiz, represented by PEF, submitted a contract grievance tohis employer pursuant to article 34 of the CBA,[FN1]asserting that his termination was in violation of articles 33[FN2]and 39[FN3]of the CBA. When OASAS, and subsequently petitioner Governor's Office of EmployeeRelations, took the position that the CBA's grievance process was not applicable to Ortiz'stermination because his failure to maintain CASAC status automatically disqualified him fromretaining his employment, respondents served a notice of intention to arbitrate pursuant to CPLR7503 (c). Petitioners then commenced this proceeding in Supreme Court seeking to permanentlystay arbitration and respondents cross-moved to compel arbitration. Supreme Court dismissedthe petition to stay arbitration and granted respondents' cross motion to compel, prompting thisappeal by petitioners. We affirm.
Inasmuch as petitioners do not oppose arbitration on public policy grounds or assert anystatutory or constitutional prohibition against such arbitration, our analysis is limited to whetherthe CBA contemplated arbitration as a means of resolving the instant dispute (see Matter of County of Chautauqua vCivil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300,Chautauqua County Local 807, 8 NY3d 513, 519 [2007]; Matter of City ofJohnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). We find that itdid.
In determining whether the parties agreed to arbitrate this particular dispute and bearing inmind the broad public policy in favor of arbitrating public sector employment disputes (see[*3]Matter of New York City Tr. Auth. v Transport WorkersUnion of Am., Local 100, AFL-CIO, 99 NY2d 1, 7 [2002]), we must only ascertain"whether there is a reasonable relationship between the subject matter of the dispute and thegeneral subject matter of the CBA" (Matter of Board of Educ. of Watertown City SchoolDist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]). Furthermore, there is animportant distinction between a determination regarding the merits of respondents' grievance andthe threshold question of whether the authority to decide the merits resides with the court or withan arbitrator (see CPLR 7501). The sole issue for our determination herein is the latter,i.e., whether Supreme Court properly concluded that the issues raised in respondents' grievanceare reviewable under the contract arbitration clause set forth in article 34 of the CBA.
In our view, inasmuch as the dispute here concerns the interpretation, application or aclaimed violation of article 33 of the CBA—specifically, whether it applies to thetermination of an employee for failure to maintain required certification—it unequivocallyfalls within the broad provisions of article 34. It is, therefore, the province of an arbitrator todetermine whether article 33 was intended to "modify, supplement, or replace the moretraditional forms of protection afforded public employees . . . in section[ ] 75. . . of the Civil Service Law" (Dye v New York City Tr. Auth., 88 AD2d899, 899 [1982], affd 57 NY2d 917 [1982]) so as to encompass within the definition of"discipline" action taken against an employee due to the loss of requiredcertification—thus, triggering the procedures of article 33 (see Matter of Board ofEduc. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d at142-143).[FN4]
Rose and Kane, JJ., concur.
Kavanagh, J. (dissenting). We dissent. While petitioners in this proceeding do not argue thatarbitration of the issues is prohibited by public policy concerns, we conclude, for the samereasons as we did in Matter of New York State Off. of Children & Family Servs.(Lanterman) (62 AD3d 1109 [2009] [decided herewith]), that the parties did not agree, andfor that matter could not have agreed, "to arbitrate the particular dispute" of respondent VictorOrtiz's lack of the statutorily required certification (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000,AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8NY3d 513, 519 [2007]). Therefore, we would reverse Supreme Court's order and grant apermanent stay of arbitration.
Cardona, P.J., concurs. Ordered that the order is affirmed, without costs.
Footnote 1: Article 34 defines a contractgrievance as "a dispute concerning the interpretation, application or claimed violation of aspecific term or provision of [the] [a]greement." That article also establishes a process for theresolution of contract grievances, which culminates in arbitration.
Footnote 2: Article 33 is entitled"Discipline." It is expressly acknowledged to be in lieu of Civil Service Law § 75 andprovides a "procedure for the imposition of discipline for just cause." It also sets forth agrievance process that, if necessary, concludes with arbitration.
Footnote 3: Article 39 is entitled "ClinicalPrivileging and Credentialing." It provides that "[n]o plan for 'clinical privileging' or'credentialing' established by any department, agency or institution shall contain any provisionthat conflicts with any [a]rticle or [s]ection of this [a]greement." Respondents contend that article39 is applicable because CASAC credentialing, including renewal thereof, is administered byOASAS (see 14 NYCRR part 853). They also contend that OASAS intentionally delayedthe renewal of Ortiz's CASAC certification to avoid the disciplinary procedures set forth inarticle 33 of the CBA.
Footnote 4: Petitioners' reliance on Matter of Felix v New York City Dept. ofCitywide Admin. Servs. (3 NY3d 498 [2004]) is misplaced. In that case, there was nocollective bargaining agreement. More importantly, it involved a statutory residencyrequirement—with which the subject employee admittedly failed to adhere—whichexplicitly provided for an automatic forfeiture of employment in the event the residencyrequirement was not met.