| Matter of Mariano v Town of Orchard Park |
| 2012 NY Slip Op 01026 [92 AD3d 1232] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of John Mariano, as President of Orchard Park PoliceBenevolent Association, Inc., et al., Respondents, v Town of Orchard Park,Appellant. |
—[*1] Law Office of William E. Grande, Kenmore (William E. Grande of counsel), forpetitioners-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April1, 2011 in a proceeding pursuant to CPLR article 75. The order, insofar as appealed from, deniedthe cross motion of respondent for a stay of arbitration.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: This dispute concerns health insurance coverage in a collective bargainingagreement (CBA) between the parties. Although the current CBA covers the period betweenJanuary 1, 2007 and December 31, 2010, petitioners commenced this proceeding on behalf of theaffected retired members, all of whom retired prior to January 1, 2007 and who are thereforegoverned under the parties' previous CBA, covering the period between January 1, 2004 andDecember 31, 2006. The issue before us is whether respondent's change to health care coveragefor retired police officers is subject to arbitration of the grievance. Petitioners filed a grievance onbehalf of the affected retired members pursuant to the CBA protesting the change in coverage,and they sought to enjoin respondent from changing the coverage pending the result of thegrievance process. Respondent contended that the retired members were no longer members ofpetitioner Orchard Park Police Benevolent Association, Inc. (PBA) and thus had no right to file agrievance or to seek arbitration with respondent. Supreme Court denied respondent's crossmotion to stay arbitration and granted petitioners' cross motion to compel it. We affirm.
In determining whether a claim is arbitrable in the public sector, courts must conduct atwo-step inquiry (see Matter of Board of Educ. of Watertown City School Dist. [WatertownEduc. Assn.], 93 NY2d 132, 137-138 [1999]). First, a court must determine " 'whether thereis any statutory, constitutional or public policy prohibition against arbitration of the grievance' "(Matter of United Fedn. of Teachers,Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City [*2]of N.Y., 1 NY3d 72, 79 [2003]). Second, if there is nosuch prohibition against arbitrating the grievance at issue, then a court must determine " 'whethersuch authority was in fact exercised and whether the parties did agree by the terms of theirparticular arbitration clause to refer their differences in this specific area to arbitration' "(Board of Educ. of Watertown City School Dist., 93 NY2d at 138).
Here, there is no question that the first part of the inquiry was satisfied (see Matter of City of Ithaca [Ithaca PaidFire Fighters Assn., IAFF, Local 737], 29 AD3d 1129, 1130-1131 [2006]). With respectto the second part of the inquiry, the fact that the retirees are not members of the PBA orrepresented by it in collective bargaining negotiations is not determinative in a thresholdarbitrability analysis (see Ledain v Town of Ontario, 192 Misc 2d 247, 254-256 [2002],affd for the reasons stated 305 AD2d 1094 [2003]; Della Rocco v City ofSchenectady, 252 AD2d 82, 84-85 [1998], lv dismissed 93 NY2d 1000 [1999]).Rather, issues concerning the PBA's relationship to retired employees, issues concerning whetherretirees are covered by the grievance procedure, and issues concerning whether the clauses of thecontract support the grievance are matters involving the scope of the substantive contractualprovisions and, as such, are for the arbitrator (see Matter of Vestal Cent. School Dist. [Vestal Teachers Assn.], 2AD3d 1190, 1192 [2003], lv denied 2 NY3d 708 [2004]). We note in addition thatNew York's public policy encourages arbitration of labor disputes involving public employees(see Matter of Board of Educ. of W. Irondequoit Cent. School Dist. v West IrondequoitTeachers Assn., 55 AD2d 1037, 1038 [1977]). We thus conclude that the court did not err ingranting petitioners' cross motion to compel arbitration. We have considered the remainingcontentions of respondent and conclude that they are without merit. Present—Scudder,P.J., Centra, Peradotto, Lindley and Martoche, JJ.