IN THE MATTER OF THE ARBITRATION BETWEEN CITY OF WATERTOWN, PETITIONER-APPELLANT-RESPONDENT, AND WATERTOWN PROFESSIONAL FIREFIGHTERS' ASSOCIATION LOCAL 191, RESPONDENT-RESPONDENT-APPELLANT.
SCHOENECK & KING, PLLC, GARDEN CITY (TERRY O'NEIL OF
COUNSEL), FOR PETITIONER-APPELLANT-RESPONDENT.
BLITMAN & KING, LLP, SYRACUSE (NATHANIEL G. LAMBRIGHT OF
COUNSEL), FOR RESPONDENT-RESPONDENT-APPELLANT.
PRESENT: CARNI, J.P., CURRAN, TROUTMAN, WINSLOW, AND SCUDDER,
and cross appeal from an order of the Supreme Court,
Jefferson County (James P. McClusky, J.), entered September
12, 2016. The order granted in part and denied in part the
petition to stay arbitration.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by denying the petition in its entirety,
and as modified the order is affirmed without costs.
Petitioner, City of Watertown (City), commenced this
proceeding pursuant to CPLR article 75, seeking a permanent
stay of arbitration of a grievance filed by respondent. In
its grievance and demand for arbitration, respondent alleged
that the City violated, among other things, the parties'
collective bargaining agreement (CBA) by failing to maintain
the requisite staffing levels of captains within the
City's Fire Department and by requiring other members of
the Fire Department to perform out-of-title work. Supreme
Court denied the petition with respect to that part of the
grievance alleging a failure to maintain minimum staffing
levels, but granted the petition with respect to that part of
the grievance alleging out-of-title work. The City appeals,
and respondent cross-appeals.
is well settled that, in deciding an application to stay or
compel arbitration under CPLR 7503, we do not determine the
merits of the grievance and instead determine only whether
the subject matter of the grievance is arbitrable"
(Matter of City of Syracuse [Syracuse Police Benevolent
Assn., Inc.], 119 A.D.3d 1396, 1397; see CPLR
7501; Matter of Board of Educ. of Watertown City Sch.
Dist. [Watertown Educ. Assn.], 93 N.Y.2d 132, 142-143).
"Proceeding with a two-part test, we first ask whether
the parties may arbitrate the dispute by inquiring if there
is any statutory, constitutional or public policy prohibition
against arbitration of the grievance'... If no
prohibition exists, we then ask whether the parties in fact
agreed to arbitrate the particular dispute by examining their
[CBA]. If there is a prohibition, our inquiry ends and an
arbitrator cannot act" (Matter of County of
Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME,
AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County
Local 807, 8 N.Y.3d 513, 519; see Syracuse Police
Benevolent Assn., Inc., 119 A.D.3d at 1397; Matter
of Mariano v Town of Orchard Park, 92 A.D.3d 1232,
reject the City's contention on appeal that arbitration
of respondent's grievance with respect to the City's
failure to maintain minimum staffing levels is prohibited by
law. Under the first prong of the arbitrability test,
"the subject matter of the dispute controls the
analysis" (Matter of City of New York v Uniformed
Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 N.Y.2d
273, 280). Contrary to the City's contention, a pending
administrative proceeding concerning respondent's alleged
improper practices does not preclude arbitration inasmuch as
there is no indication that the "particular subject
matter of the dispute" is not "authorized, "
i.e., not " lawfully fit for arbitration' "
reject the City's further contention that the parties did
not agree to arbitrate the grievance. " Our review of
that question is limited to the language of the grievance and
the demand for arbitration, as well as to the reasonable
inferences that may be drawn therefrom' "
(Matter of Wilson Cent. Sch. Dist. [Wilson Teachers'
Assn.], 140 A.D.3d 1789, 1790; see Matter of Niagara
Frontier Transp. Auth. v Niagara Frontier Transp. Auth.
Superior Officers Assn., 71 A.D.3d 1389, 1390, lv
denied 14 N.Y.3d 712). "Where, as here, the [CBA]
contains a broad arbitration clause, our determination of
arbitrability is limited to whether there is a reasonable
relationship between the subject matter of the dispute and
the general subject matter of the CBA' " (Matter
of Haessig [Oswego City Sch. Dist.], 90 A.D.3d 1657,
1657, quoting Board of Educ. of Watertown City Sch.
Dist., 93 N.Y.2d at 143; see Syracuse Police
Benevolent Assn., Inc, 119 A.D.3d at 1397; Matter of
Kenmore-Town of Tonawanda Union Free Sch. Dist. [Ken-Ton Sch.
Empls. Assn.], 110 A.D.3d 1494, 1495). "If such a
reasonable relationship' exists, it is the role of the
arbitrator, and not the court, to make a more exacting
interpretation of the precise scope of the substantive
provisions of the CBA, and whether the subject matter of the
dispute fits within them' " (Syracuse Police
Benevolent Assn., Inc, 119 A.D.3d at 1397, quoting
Board of Educ. of Watertown City Sch. Dist., 93
N.Y.2d at 143; see Matter of Ontario County [Ontario
County Sheriff's Unit 7850-01, CSEA, Local 1000, AFSCME,
AFL-CIO], 106 A.D.3d 1463, 1464-1465).
grievance and demand for arbitration, respondent alleged, in
relevant part, that the City demoted eight captains and thus
violated the CBA by failing to maintain the requisite
staffing levels, and by concomitantly forcing other members
of the Fire Department to perform out-of-title work, i.e.,
captain's work, without the appropriate compensation.
Respondent's grievance specifically references articles 4
and 5 of the parties' CBA, which include provisions
governing both minimum staffing levels and compensation for
out-of-title work. We therefore conclude with respect to the
appeal and cross appeal that the dispute is reasonably
related to the general subject matter of the CBA (see
Matter of City of Lockport [Lockport Professional
Firefighters Assn., Inc.], 141 A.D.3d 1085, 1088;
Niagara Frontier Transp. Auth., 71 A.D.3d at 1391).
to the City's contention, we conclude that the issue
whether the CBA's minimum staffing provision requires a
specific number of captains in each company involves an
interpretation of that provision and the merits of
respondent's grievance. It is therefore a question to be
resolved by the arbitrator, who is tasked with making "a
more exacting interpretation of the precise scope of the
substantive provisions of the CBA, and whether the subject
matter of the dispute fits within them" (Board of
Educ. of Watertown City Sch. Dist., 93 N.Y.2d at 143;
see Lockport Professional Firefighters Assn., Inc.,
141 A.D.3d at 1088).
reject the City's further contention that strict
compliance with the step-by-step grievance procedure set
forth in the CBA is a condition precedent to arbitration
(see Kenmore-Town of Tonawanda Union Free Sch.
Dist., 110 A.D.3d at 1496). "Questions concerning
compliance with a contractual step-by-step grievance process
have been recognized as matters of procedural arbitrability
to be resolved by the arbitrators, particularly in the
absence of a very narrow arbitration clause or a provision
expressly making compliance with the time limitations a
condition precedent to arbitration" (Matter of
Enlarged City Sch. Dist. of Troy [Troy Teachers Assn.],
69 N.Y.2d 905, 907). Therefore, the question whether
respondent complied with the requirements of the CBA's
grievance procedure-in particular, whether respondent
complied with the requirement that it submit a written
statement "setting forth the specific nature of the
grievance and the facts relating thereto"-is an issue of
"procedural arbitrability" for the arbitrator to
resolve (Kenmore-Town of Tonawanda Union Free Sch.
Dist., 110 A.D.3d at 1496; see Enlarged City Sch.
Dist. of Troy, 69 N.Y.2d at 907). We have considered the
City's remaining contentions and conclude that they are
agree with respondent on its cross appeal, however, that the
court erred in granting the petition with respect to that
part of the grievance alleging out-of-title work, and we
therefore modify the order accordingly. We reject the
City's contention that arbitration should be stayed with
respect to the issue of out-of-title work because
compensation for such work falls within the meaning of
"salary, " which is expressly excluded from the
CBA's definition of "grievance." Because there
is a reasonable relationship between the dispute over
out-of-title work and the subject matter of the CBA, we
conclude that "it is for the arbitrator to determine
whether the [compensation for ...