| Matter of Niagara Frontier Transp. Auth. v Niagara Frontier Transp.Auth. Superior Officers Assn. |
| 2010 NY Slip Op 02196 [71 AD3d 1389] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Niagara Frontier Transportation Authority,Respondent, v Niagara Frontier Transportation Authority Superior Officers Association,Appellant. |
—[*1] David M. Gregory, Buffalo (Wayne R. Gradl of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered June12, 2009 in a proceeding pursuant to CPLR article 75. The order granted the petition to stayarbitration and denied respondent's cross petition to compel arbitration.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the petition is denied, and the cross petition is granted.
Memorandum: Respondent appeals from an order granting petitioner's CPLR article 75petition for a permanent stay of arbitration and denying respondent's cross petition to compelarbitration. We reverse.
Respondent, which represents employees holding the position of captain with petitioner,demanded arbitration concerning the promotion of a firefighter to acting captain to cover analleged vacancy in the position of captain. The sole question presented on this appeal is whetherthe parties have "agreed to arbitrate the dispute at issue" pursuant to their collective bargainingagreement (CBA) (Matter of City of Johnstown [Johnstown Police Benevolent Assn.],99 NY2d 273, 278 [2002]; see Matter ofTown of Cheektowaga [Cheektowaga Police Club, Inc.], 59 AD3d 993, 994 [2009]; Matter of City of Watertown v WatertownFirefighters, Local 191, 6 AD3d 1095 [2004]). Our review of that question is limited tothe language of the grievance and the demand for arbitration, as well as to the reasonableinferences that may be drawn therefrom (see generally Matter of Board of Educ. of Schenectady City School Dist.[Schenectady Fedn. of Teachers], 61 AD3d 1175 [2009]; Matter of City of Ithaca [Civil Serv.Empls. Assn., Inc.], 25 AD3d 859, 860-861 [2006], lv denied 6 NY3d 712[2006]; Matter of Smith v Andrews, 122 AD2d 310, 313-314 [1986], lv denied69 NY2d 604 [1987]).
"Where, as here, there is a broad arbitration clause and a 'reasonable relationship' betweenthe subject matter of the dispute and the general subject matter of the parties' [CBA], the court'should rule the matter arbitrable, and the arbitrator will then make a more exacting [*2]interpretation of the precise scope of the substantive provisions ofthe [CBA], and whether the subject matter of the dispute fits within them' " (Matter of VanScoy [Holder], 265 AD2d 806, 807-808 [1999], quoting Matter of Board of Educ. ofWatertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]; seeTown of Cheektowaga, 59 AD3d at 994).
Petitioner's reliance on Matter ofCity of Binghamton (Binghamton Firefighters, Local 729, AFL-CIO) (20 AD3d 859[2005]) is misplaced. That case involved a reduction in staffing from 26 to 24 firefighters perweekday shift, which was alleged to violate the parties' CBA (id. at 859). The CBA inthat case, however, did not "even implicitly require[ ] petitioner to maintain any specific staffinglevel or describe[ ] how staffing levels [were] to be determined" (id. at 860). The ThirdDepartment accordingly held that the dispute was not reasonably related to the general subjectmatter of the parties' CBA and that the petitioner's application to stay arbitration was properlygranted (id.). Here, respondent did not allege a reduction in workforce or that petitionerwas required to maintain a specific staffing level. Rather, respondent contended that petitionerviolated a CBA provision governing overtime distribution by promoting a firefighter to cover avacant captain position. The specific provision of the CBA at issue permits petitioner to "assign"bargaining unit firefighters to a captain's position only if all captains are "unavailable." Weconclude that the dispute is arbitrable inasmuch as the alleged "promotion" may be deemed toconstitute an "assign[ment]," thus obligating petitioner to determine the availability of theexisting captains and to offer them overtime before making that assignment. Those issues shouldbe resolved by an arbitrator (see Town of Cheektowaga, 59 AD3d at 994; Matter ofBoard of Trustees of Cayuga County Community Coll. [Cayuga County Community Coll.Faculty Assn.], 299 AD2d 907 [2002]; Van Scoy, 265 AD2d at 807-808).Present—Smith, J.P., Peradotto, Carni, Pine and Gorski, JJ.