| Matter of County of Herkimer v Civil Serv. Empls. Assn., Inc.,Local 1000, AFSCME, AFL-CIO |
| 2015 NY Slip Op 00125 [124 AD3d 1370] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of the Arbitration between County ofHerkimer, Respondent, and Civil Service Employees Association, Inc., Local 1000,AFSCME, AFL-CIO et al., Appellants. |
Steven A. Crain and Daren J. Rylewicz, Civil Service Employees Association, Inc.,Albany (Constance R. Brown of counsel), for respondents-appellants.
Robert J. Malone, County Attorney, Herkimer (Thaddeus J. Luke of counsel), forpetitioner-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, HerkimerCounty (Norman I. Siegel, J.), entered February 20, 2014 in a proceeding pursuant toCPLR article 75. The order and judgment, among other things, granted the petition tostay arbitration.
It is hereby ordered that the order and judgment so appealed from is unanimouslyreversed on the law without costs, the petition is denied, and the cross motion isgranted.
Memorandum: Respondent John Hight, a probation officer employed by petitioner,applied for a promotion to the position of probation supervisor. The collective bargainingagreement (CBA) at issue in this litigation included the position of probation officer, butexcluded the position of probation supervisor. Petitioner promoted another, less senior,employee, although Hight scored higher on the promotional examination than thatemployee. After following the procedures set forth in the CBA governing disputes,respondents filed a grievance regarding the promotion. When petitioner denied thegrievance on the ground that the position to which Hight sought to be promoted was notencompassed by the CBA, respondents sought arbitration. Petitioner commenced thisproceeding pursuant to CPLR article 75 seeking an order staying arbitration, andrespondents appeal from an order and judgment that granted the petition and denied theircross motion to compel arbitration.
The issue is governed by the Court of Appeals' two-prong test to determine "whethera grievance is arbitrable" (Matter of City of Johnstown [Johnstown Police BenevolentAssn.], 99 NY2d 273, 278 [2002] [Johnstown]), originally enunciated inMatter of Acting Supt. of Schools of Liverpool Cent. School Dist. (UnitedLiverpool Faculty Assn.) (42 NY2d 509, 513 [1977] [Liverpool]) andMatter of Board of Educ. of Watertown City School Dist. (Watertown Educ.Assn.) (93 NY2d 132, 143 [1999] [Watertown]). In the first prong of the test,known as "the 'may-they-arbitrate' prong," we "ask whether there is any statutory,constitutional or public policy prohibition against arbitration of the grievance"(Johnstown, 99 NY2d at 278, citing Liverpool, 42 NY2d at 513). Ifarbitration is not prohibited, we then in the second prong "examine the CBA to determineif the parties have agreed to arbitrate the dispute at issue," which is known as "the'did-they-agree-to-arbitrate' prong" (id.).
Here, petitioner does not contend that there is any prohibition against arbitration ofthe grievance at issue, and thus we are concerned only with the second prong of theJohnstown test. We agree with respondents that Supreme Court erred inconcluding that the parties did not agree to arbitrate this issue. "It is well settled that, indeciding an application to stay or compel arbitration under CPLR 7503, the court isconcerned only with the threshold determination of arbitrability, and not with the meritsof the underlying claim" (Matterof Alden Cent. Sch. Dist. [Alden Cent. Schs. Administrators' Assn.], 115 AD3d1340, 1340 [2014]). We therefore reject petitioner's contention that the matter is notarbitrable because the position to which Hight seeks a promotion is excluded fromrepresentation by the union in the CBA. "Where, as here, there is a broad arbitrationclause and a 'reasonable relationship' between the subject matter of the dispute and thegeneral subject matter of the parties' collective bargaining agreement, the court 'shouldrule the matter arbitrable, and the arbitrator will then make a more exacting interpretationof the precise scope of the substantive provisions of the [collective bargainingagreement], and whether the subject matter of the dispute fits within them' "(Matter of Van Scoy [Holder], 265 AD2d 806, 807-808 [1999], quotingWatertown, 93 NY2d at 143; see Matter of Ontario County [Ontario County Sheriff's Unit7850-01, CSEA, Local 1000, AFSCME, AFL-CIO], 106 AD3d 1463,1464-1465 [2013]; Matter ofNiagara Frontier Transp. Auth. v Niagara Frontier Transp. Auth. Superior OfficersAssn., 71 AD3d 1389, 1390 [2010], lv denied 14 NY3d 712 [2010]).Inasmuch as such a reasonable relationship exists between the subject matter of thegrievance, i.e., promotion procedures, and the general subject matter of the CBA, "it isfor the arbitrator to determine whether the subject matter of the dispute falls within thescope of the arbitration provisions of the [CBA]" (Matter of City of Watertown v Watertown Firefighters, Local191, 6 AD3d 1095, 1096 [2004]). Present—Smith, J.P., Peradotto, Carni,Valentino and DeJoseph, JJ.