| Matter of Massena Cent. School Dist. (Massena Confederated SchoolEmployees' Assn., NYSUT, AFL-CIO) |
| 2011 NY Slip Op 01550 [82 AD3d 1312] |
| March 3, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Arbitration between Massena Central SchoolDistrict, Respondent, and Massena Confederated School Employees' Association, NYSUT,AFL-CIO, on Behalf of Eric Fetterly, Appellant. |
—[*1] Frank W. Miller, East Syracuse, for respondent.
Garry, J. Appeal from an order of the Supreme Court (Demarest, J.), entered February 16,2010 in St. Lawrence County, which granted petitioner's application pursuant to CPLR 7511 tovacate a decision finding an arbitrable issue.
Eric Fetterly, an employee of petitioner and a member of respondent, was absent from hisemployment for 11 months after suffering a work-related injury. When he returned, petitioneradvised him that it had mistakenly paid his health insurance premiums during part of his absenceand demanded reimbursement. Respondent filed a grievance alleging a violation of the collectivebargaining agreement (hereinafter CBA) arising out of this issue, as well as three grievancesaddressing other disputes pertaining to Fetterly's absence. Upon completion of the grievanceprocedure, respondent demanded arbitration of all four disputes. By agreement, the healthinsurance issue was held in abeyance while the other matters were addressed (see generally Matter of Massena Cent.School Dist. [Massena Confederated School Employees' Assn., NYSUT, AFL-CIO], 64AD3d 859 [2009]). Thereafter, the parties submitted the question whether the healthinsurance dispute was arbitrable under the CBA to the arbitrator, who determined that it was.Petitioner commenced this proceeding seeking to vacate that decision, [*2]and Supreme Court granted the petition. Respondent appeals.
As we previously determined, the CBA at issue "explicitly limits the scope of the arbitrator'sauthority" (id. at 861). The agreement provides that "[n]ot all grievances are subject toarbitration" and defines the scope of arbitration and jurisdiction of the arbitrator in restrictiveterms, first, expressly limiting the arbitrator to interpreting and applying the terms of the CBA,and then, specifically stating: "The arbitrator shall not supplement, enlarge, diminish, or alter thescope of meaning of [the CBA] and its appendices as it exists from time-to-time, or anyprovisions therein, nor entertain jurisdiction of any subject matter not covered thereby (except tothe extent necessary to determine his [or her] jurisdiction). Without limiting the foregoing thesubjects of health insurance and retirement are by this section excluded from arbitration"(emphasis added). Despite this emphasized language, the arbitrator found that "it cannot be saidwith positive assurance that the arbitration clause is not susceptible of an interpretation thatcovers the asserted dispute" and determined that the issue of payment of health insurancepremiums, as opposed to the substance of health insurance coverage, was not excluded fromarbitration. Supreme Court vacated this determination on the ground that it exceeded a specific,enumerated limitation on the arbitrator's power (see CPLR 7511 [b] [1] [iii]; Matterof Massena Cent. School Dist. [Massena Confederated School Employees' Assn., NYSUT,AFL-CIO], 64 AD3d at 860). We agree and affirm.
The threshold question of arbitrability is ordinarily a judicial determination, unless theagreement " 'clearly and unmistakably' " provides otherwise (Matter of Smith BarneyShearson v Sacharow, 91 NY2d 39, 46 [1997], quoting AT&T Technologies, Inc. vCommunications Workers, 475 US 643, 649 [1986]).[FN1]Here, the CBA directs that if the arbitrator determines that a subject is beyond his or herjurisdiction "or would contravene [the arbitration provisions]," he or she is to reduce this findingto writing and "may" refer the matter to the parties. Based in part on this provision, this Courtpreviously found that the arbitrator's jurisdiction included the arbitrability of an issue raised inthe other grievances (see Matter of Massena Cent. School Dist. [Massena ConfederatedSchool Employees' Assn., NYSUT, AFL-CIO], 64 AD3d at 863). Respondent argues that thesame provision gives the arbitrator jurisdiction to determine that the current dispute is arbitrableand, therefore, that his determination of that issue is entitled to judicial deference (see Matter of New York City Tr. Auth. vTransport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005];Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]).
However, the arbitration provision at issue here is limited; indeed, almost every sentencemanifests the parties' intent to narrow the scope of arbitration (see Rochester City SchoolDist. v Rochester Teachers Assn., 41 NY2d 578, 582 [1977]). Even the clause addressing thearbitrator's jurisdiction to determine arbitrability is phrased in negative terms. Such restrictivelanguage cannot be read to manifest a clear and unmistakable intent to permit the arbitrator toenlarge the scope of arbitration in the guise of interpretation. Instead, the CBA explicitly forbidsthe arbitrator from "supplement[ing], enlarg[ing], diminish[ing], or alter[ing] [*3]the scope of [its] meaning." Accordingly, in order to determinewhether the arbitrator exceeded his power in interpreting the exclusionary language, this Courtmust exercise its threshold responsibility to determine independently whether the dispute isarbitrable (see Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d91, 95 [1975]).
Respondent contends that the health insurance issue is arbitrable "[b]ecause a 'reasonablerelationship [exists] between the subject matter of the dispute and the general subject matter ofthe CBA' " (Matter of Peters vUnion-Endicott Cent. School Dist., 77 AD3d 1236, 1240-1241 [2010], quotingMatter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93NY2d 132, 143 [1999]). In light of the limited arbitration provision at issue here, this contentionmisconceives the appropriate analysis.[FN2]"[A]rbitration under such a clause will only be ordered when the dispute is expressly andunequivocally encompassed by the language of the clause" (Alexander, Supp PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7501:4, 2011 Pocket Part, at27 [internal quotation marks omitted]; see Bowmer v Bowmer, 50 NY2d 288, 293[1980]). A party cannot be compelled to arbitrate in the absence of an "express, direct andunequivocal agreement" to do so (Matter of South Colonie Cent. School Dist. [South ColonieTeachers Assn.], 46 NY2d 521, 525 [1979] [internal quotation marks omitted]; see Matter of Oxford Empl. SupportPersonnel Assn. [Oxford Academy & Cent. School Dist.], 40 AD3d 1297, 1298 [2007],lv denied 9 NY3d 807 [2007]). Where an arbitration agreement clearly demonstrates thatthe parties intended to narrow the scope of arbitration, that intent must be given effect by limitingarbitration to those subjects "expressly and unequivocally encompasse[d]" in the arbitrationagreement (Bowmer v Bowmer, 50 NY2d at 293; accord Matter of Trump [RefcoProps.], 194 AD2d 70, 74 [1993], lv denied 83 NY2d 754 [1994]).
No such express and unequivocal intent to arbitrate the issue of health insurance premiumsmay be discerned here. The CBA provides that not all grievances are arbitrable, prohibits thearbitrator from addressing issues outside his or her authority or enlarging the scope of the CBA,and specifically excludes "the subject[ ] of health insurance" from arbitration. Applying a "plainlanguage interpretation" to these provisions (State of New York v Philip Morris Inc., 8 NY3d 574, 581 [2007]),it is evident that the parties did not intend to arbitrate this dispute. In the context of theagreement's restrictive language, the fact that the parties did not specify different treatment forhealth insurance premiums and health insurance coverage must be read to indicate that theyintended no such distinction (see Gangel v DeGroot, 41 NY2d 840, 841 [1977]). Thearbitrator's determination to the contrary exceeded his power and was properly set aside (see Matter of New York State Dept. ofLabor [Unemployment Ins. Appeal Bd.] v New York State Div. of Human Rights, 71 AD3d1234, 1236-1237 [2010], lv denied 15 NY3d 714 [2010]; Rochester City SchoolDist. v Rochester Teachers Assn., 41 NY2d at 582).
Peters, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Petitioner did not waive theissue of arbitrability by participating without first applying for a stay, as other arbitrable issueswere involved in the underlying dispute (see Matter of Silverman [Benmor Coats], 61NY2d 299, 302 [1984]) and this appeal is not from a final award.
Footnote 2: Notably, even when anarbitration clause is broadly worded, a matter may be excluded from its scope by language thatclearly demonstrates such an intent (see e.g. Matter of County of Albany [AFSCME, Council82], 114 AD2d 732, 733 [1985]).