Opinion
470805
Decided May 6, 2005.
Upon the foregoing papers in this Article 75 proceeding, petitioner New York City Transit Authority's (NYCTA) application for a judgment, pursuant to CPLR 7503 (b), imposing a permanent stay of arbitration of the December 2004 grievance by respondents Amalgamated Transit Union, Local 1056, and Kenneth Broderick, as President of Amalgamated Transit Union, Local 1056 (collectively, Local 1056 or the Union), is granted in part and denied in part.
Background
The NYCTA is a public benefit corporation, created by and existing under the New York Public Authorities Law, Article 5, Title 9, § 1200, et seq., to, inter alia, "operat[e] transit facilities in accordance with the provisions of this title for the convenience and safety of the public" (Pub. Auth. Law § 1202).
Local 1056 is a public employees' union and, as pertinent, the duly recognized collective bargaining representative for a certain collective bargaining unit made up of NYCTA workers employed as Bus Operators in Queens County.
At all times relevant, the NYCTA and Local 1056 were parties to a collective bargaining agreement (CBA) containing a three-step contract interpretation grievance procedure culminating in arbitration before an impartial arbitrator. A contract interpretation grievance is defined in Article II, Section 2.1 (A) (1) of the CBA as:
"a complaint on the part of any covered employee or group of such employees that there has been on the part of Management, noncompliance with or a misinterpretation of any of the provisions of this Agreement or of any written rule, or Policy/Instruction of the Authority governing or affecting its employees . . ."
The CBA further provides, at Article II, Section 2.1 (B) (3) (e) thereof, that the arbitrator, "in rendering any opinion or determination, shall be strictly limited to the interpretation and application of the provisions of this Agreement" and is "without any power or authority to add to, delete from, or modify any of the provisions of this Agreement." Finally, as pertinent herein, the CBA provides that the arbitrator "shall not have the authority to render any opinion or make any recommendations:
"(1) inconsistent with or contrary to the provisions of the applicable Civil Service Laws and Regulations; [or]
"(2) limiting or interfering in any way with the statutory powers, duties, and responsibilities of the Authority in operating, controlling, and directing the maintenance and operation of the transit facilities, or with the Authority's managerial responsibility to run the transit lines safely, efficiently and economically"
(CBA Article II, Section 2.1 [B][3][e][1] and [2]).
On September 16, 2003, the NYCTA informed Local 1056 of petitioner's intent to transfer two express bus routes from the Jamaica Bus depot to the Queens Village Bus Depot, for the stated purpose of reducing operating costs and improving maintenance of NYCTA express buses.
The Union complained that the NYCTA's proposed change of express bus routes violated the CBA, a memorandum of understanding between the parties and a work rule, in that, inter alia, petitioner's route transfer decision was made unilaterally and without taking into consideration or accommodating union members whose rights under the CBA might be adversely affected thereby. Specifically, the Union claimed that the rights of its member bus operators to pick express routes based upon their seniority at the different depots would be adversely affected by the bus route transfer, and that petitioner violated the CBA by failing to bargain with the Union regarding the impact of the route transfer upon those rights.
On December 2, 2004, the Union filed a contract grievance on behalf of all its similarly situated members and demanded, as remedy for the alleged contractual violation, that the NYCTA (1) "cease and desist from implementing" the bus route transfers, and (2) "refrain from transferring any bus routes until all outstanding collective bargaining matters are resolved." Said grievance was denied by the NYCTA at Steps I and II, on the ground that the Union's claim did not constitute a bona fide grievance covered under the parties' CBA.
Local 1056 has appealed the grievance denials to the third step, arbitration, and seeks to have an impartial arbitrator determine the issue of whether the NYCTA violated the Taylor Law (Civil Service Law, Article 14) in connection with the proposed bus route transfer.
The instant Article 75 proceeding ensued, whereby petitioner seeks a permanent stay of the proposed grievance arbitration on the grounds that: (1) the NYCTA's right to implement a route transfer is a unilateral and non-bargainable decision; (2) a valid agreement to arbitrate was not made concerning this matter, and the matter is, therefore, not arbitrable; and (3) to the extent respondents allege petitioner's failure to negotiate, or its commission of any other improper labor practice prohibited by the Taylor Law, said issue is one that is within the exclusive jurisdiction of the Public Employment Relations Board (PERB).
Respondents oppose the stay on the ground that the impact of the bus route transfer decision upon member seniority rights is a mandatory subject of bargaining and, therefore, arbitrable under the CBA. Respondents further contend that the fact that resolution of this issue may depend upon an interpretation of the Taylor Law does not automatically place the issue within PERB's exclusive jurisdiction.
Analysis
"Generally, under New York statutory and case law, a court may address three threshold questions on a motion to compel or to stay arbitration: (1) whether the parties made a valid agreement to arbitrate; (2) if so, whether the agreement has been complied with; and (3) whether the claim sought to be arbitrated would be time-barred if it were asserted in State court" ( County of Nassau v. Civil Service Employees Assoc., 14 AD3d 509, citing Matter of County of Rockland [ Primiano Construction Co., Inc.], 51 NY2d 1; see also Matter of New York Central Mutual Fire Insurance [ Valois], 6 AD3d 1183, 1184; Buffalo Police Benevolent Assoc. v. City of Buffalo, 114 Misc 2d 1091, 1094).
Here, the public authority's petition to stay arbitration and the public employee organization's opposition thereto involve a dispute only as to the first threshold question, and requires the court to determine, as a preliminary matter, whether the dispute in issue is arbitrable ( see Buffalo Police Benevolent Assoc., 114 Misc 2d at 1095; see also Matter of Franklin Central School [ Franklin Teachers Assoc.], 51 NY2d 348, 356).
In making this determination, the court must answer the following questions: "(1) are arbitration claims with respect to the particular subject matter of the dispute authorized under the Taylor Law [and allowable as a matter of public policy]; and (2) do the terms of the particular arbitration clause include this subject area" ( Matter of Committee of Interns and Residents [ Dinkins], 86 NY2d 478, 483, citing Matter of Acting Supt. Of Schools [ United Liverpool Faculty Assn.], 42 NY2d 509, 513; see also City of New York v. Uniformed Fire Fighters Assoc., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 280; Maross Construction, Inc. v. Central New York Regional Transp. Auth., 66 NY2d 341, 345; Matter of City of Plattsburgh [ Plattsburgh Police Officers Union AFSCME Local 82], 250 AD2d 327, 329; Matter of Seneca Falls Central School District, 117 Misc 2d 879, 882; Buffalo Police Benevolent Assoc., 114 Misc 2d at 1095, citing Matter of Franklin Central School, 51 NY2d at 355; Matter of Incorporated Village of Malverne, 113 Misc 2d 1072, 1073).
"Under the first prong, the subject matter of the dispute controls the analysis. . . . The court must determine 'that there is nothing in statute, decisional law or public policy which would preclude the [public authority] and its employee or group of employees from referring the dispute to arbitration'. . . . If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of dispute, 'then the answer to the first inquiry is no, and the claim is not arbitrable regardless of the answer to the second question'" ( City of New York, 95 NY2d at 280-281 [ internal citations omitted]).
Applying this standard to the instant dispute, the court concludes that the issue of petitioner's alleged failure to negotiate the effects of the proposed express bus route transfers is arbitrable, but that the separate issue of petitioner's actual managerial right and decision to implement the route transfer is not, as arbitration of this latter issue is clearly precluded by public policy, as embodied in the Taylor Law and the Public Authorities Law, and by the parties' own agreement.
A power specifically granted by the legislature and designated to the NYCTA pursuant to Public Authorities Law, Article 5, Title 9, is the authority to "manage, control and direct the maintenance and operation of transit facilities . . . with power, in its discretion, to extend, modify, discontinue, curtail, or change routes or methods of transportation where the convenience and safety of the public would be served thereby or where existing routes or methods are inefficient or uneconomical" (Pub. Auth. Law § 1204).
Said statutory provision is an implicit expression of public policy that forecloses any labor negotiation of the dispute over petitioner's right to implement a bus route change ( see Manhattan and Bronx Surface Transit Operating Authority v. Transport Workers Union of America, AFL-CIO, Local 100, 182 AD2d 626, 627-628). Petitioner, thus, correctly argues that arbitration of this specific non-bargainable right and public policy issue would violate one or more well-defined constitutional, statutory and/or common laws of the State ( id.; see also City of New York, 95 NY2d at 281 ["public policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may restrict the freedom to arbitrate"], quoting Matter of Susquehanna Val. Cent. School Dist. [ Susquehanna Val. Teachers' Assn.], 37 NY2d 614, 616-617).
It is also clear that the dispute concerning petitioner's actual decision to implement a bus route change falls outside the ambit of the subject CBA arbitration clause (Article II, Section 2.1 [B][3][e][1] and [2]), which clause specifically removes from the impartial arbitrator the power or jurisdiction to render a ruling, opinion or recommendation that is "inconsistent with or contrary to" the Civil Service Laws and regulations or where such ruling would otherwise "limit or interfer[e] in any way with the [NYCTA's] statutory powers, duties, and responsibilities" ( Manhattan and Bronx Surface Transit Operating Authority, 182 AD2d at 627).
To allow binding arbitration on the specific issue of the NYCTA's right or ability to implement a change of its express bus routes, or similar arbitration seeking to otherwise limit petitioner's general statutory power to implement route changes on the basis of public safety and convenience and/or for the sake of economy or efficiency, would constitute an improper intrusion upon the non-delegable powers and duties granted petitioner under Public Authorities Law, Article 5, Title 9, and violate the unambiguous terms of the CBA ( id. at 627-628; see also Board of Education of the City School District of the City of New York v. New York State Public Employment Relations Board, 75 NY2d 660, 667-668 [subject that would result in school board's surrender of non-delegable statutory responsibilities cannot be collectively bargained]).
However, while public policy, the controlling statutes and the subject CBA do preclude arbitration on the issue of petitioner's right to implement non-delegable and non-negotiable decisions (here, a bus route transfer), they do not forbid arbitration with respect to what is commonly known as impact or "effects bargaining."
Effects bargaining, a procedure recognized by PERB to be enforceable pursuant to the Taylor Law, and by the National Labor Relations Board pursuant to the National Labor Relations Act (the federal, private sector equivalent of the Taylor Law), is the process wherein an employer, though not required to bargain over an actual non-negotiable decision itself, generally must nevertheless negotiate the effects of said non-negotiable decision with its employees' duly-elected collective bargaining representative ( see generally First National Maintenance Corp. v. NLRB, 452 US 666, 681; Matter of Transport Workers Union, Local 100 of America [ New York City Transit Authority], 34 PERB ¶ 4588 [2001]; Matter of New York State Supreme Court Officers Assoc., ILA [ New York State Office of Court Administration], 32 PERB ¶ 3063 [1999]; Matter of Civil Service Employees Assoc., Inc., Local 1000, AFSCME, AFL-CIO [ County of Nassau], 32 PERB ¶ 4554 [1999]; Matter of Correction Officer Benevolent Assoc. of Rockland County [ County of Rockland], 31 PERB ¶ 4530 [1998]).
"It is well established that a union has the right to negotiate over the impact of a decision which an employer may otherwise be privileged to make unilaterally, and an employer's refusal to grant a demand to negotiate impact is a violation of the [Taylor] Act" ( Matter of Civil Service Employees Assoc., Inc., Local 1000 [ City of Troy], 28 PERB ¶ 4657 [1995]).
Here, petitioner may have a duty pursuant to the CBA and the Taylor Law to engage in effects bargaining over the extent to which its employees' seniority rights might be lost or dissipated following the express bus route change even though, or, perhaps, because, these seniority matters are closely related to or naturally flow from the non-negotiable management decision to implement the route change ( see NLRB v. Litton Financial Printing Division, 893 F2d 1128, cert. granted on other grounds, 498 US 966; Matter of Civil Service Employees Assoc., 32 PERB at ¶ 4554).
Accordingly, though not specified as such, Local 1056's argument that it "wants the NYCTA to consider the seniority rights of bus operators in implementing any transfer of bus routes" and that, with respect to the route transfer decision at issue, the NYCTA's failure to do so violated the CBA, a memorandum of understanding between the parties and a work rule, is really an argument that petitioner is required, but has failed or refused, to engage in effects bargaining.
No statute (including the Public Authorities Law and Taylor Law), decisional law or public policy prohibits the referral to arbitration of a dispute concerning a public authority's alleged violation of a CBA and/or the Taylor Law through its failure or refusal to engage in effects bargaining.
Moreover, although the issue of effects bargaining is covered under the Taylor Law's improper practice provisions, PERB, contrary to petitioner's argument, does not exercise original and exclusive jurisdiction over grievances alleging a failure to engage in impact or effects bargaining ( see Matter of Transport Workers Union, 34 PERB at ¶ 4588 [union's charge that NYCTA violated Taylor Act by refusing to engage in effects bargaining regarding transfer of unit work conditionally dismissed by PERB and deferred to pending grievance arbitration proceedings]; Matter of Amalgamated Transit Union, Division 1056, AFL-CIO [ New York City Transit Authority], 25 PERB ¶ 3080, 3163 [1992]).
The Taylor Law requires management and the union to bargain as to all terms and conditions of employment; PERB, however, has no jurisdiction to itself interpret the parties' agreement, and does not prohibit parties from resolving, through binding arbitration, disputes regarding the interpretation of the parties contract ( id. [PERB is "without jurisdiction whenever the contract is the source of right to the charging party with respect to the subject matter of its improper practice charge"]). Indeed, PERB, when the parties' CBA contains "a reasonably arguable source of right" to the charging party, will often defer the matter pending arbitration under the CBA, even where said arbitration is not yet invoked ( see Matter of Public Employees Federation, AFL-CIO [ State of New York], 31 PERB ¶ 4629 [1998] ["The Board's policy is to defer to the parties' grievance and arbitration procedures both the jurisdictional and merits determinations in refusal to bargain charges resting on a unilateral change where the disposition of the charge 'necessitates an interpretation of an agreement which is arguably a source of right to the charging party'"]; see also Matter of Nassau County Sheriff Officers Assoc. [ County of Nassau], 36 PERB ¶ 4584 [2003]; Matter of Onondaga County Deputy Sheriffs' Police Assoc, Inc. [ County of Onondaga], 31 PERB ¶ 4613 [1998]).
Petitioner, the movant herein, fails to allege that the subject CBA does not contain a maintenance of benefits clause, management rights clause, obligation to bargain clause or other reasonably arguable source of right. Petitioner, therefore, has failed to demonstrate that the dispute as to whether the NYCTA was required to engage in effects bargaining prior to or in conjunction with its route change decision, and also whether the Union is entitled to any remedy for the NYCTA's alleged failure or refusal to so bargain, are not disputes that involves a substantive interpretation of the controlling CBA and, thus, questions of contract interpretation for the arbitrator ( City of New York v. Intl. Brotherhood of Teamsters, Local 237, 301 AD2d 471).
Equally unavailing is petitioner's assertion that to deny a permanent stay of arbitration on the seniority issue would result in the arbitrator ruling on questions not within his or her limited jurisdiction to review. The relief requested by respondents in their grievance and application for arbitration is wholly or largely improper, as it seeks to bar the NYCTA from unilaterally exercising its right to implement the subject route changes; thus, intruding upon the NYCTA's statutorily authorized powers and duties; and, therefore, contrary both to public policy and the subject CBA ( Manhattan and Bronx Surface Transit Operating Authority, 182 AD2d at 627).
However, the Court of Appeals has "made a distinction . . . between disputes in which granting any relief would violate public policy and situations in which public policy would only be violated by granting the remedy requested by one or more parties. . . . In the former situation, courts may intervene and stay arbitration. . . . Where an arbitrator may be able to fashion a remedy not in violation of public policy, it would be improper for a court to intervene preemptively" ( Committee of Interns and Residents, 86 NY2d at 484 [internal citations omitted]).
The instant matter is not one in which no remedy could be granted without violating public policy ( cf. City of New York, 95 NY2d at 283-284). As argued by respondents, the arbitrator, should a violation of the CBA be found, may separate the issues and fashion a remedy that implements the seniority or other rights guaranteed respondents' members under the CBA without interfering with the NYCTA's right to implement its desired route changes or otherwise violating public policy.
The record does not disclose whether an actual violation with respect to effects bargaining has occurred. Since, however, it is apparent that the parties have contractually agreed to arbitrate the instant dispute, it is for the arbitrator and not the court to address the merits of the dispute ( Matter of New York Central Mutual Fire Insurance Co., 6 AD3d at 1185, citing State Farm Mutual Auto Insurance Co. v. Alfarone, 62 AD2d 1034 [1978]).
Further, Public Authorities Law, Article 5, Title 9, and the CBA itself constitute specifically enumerated restrictions upon the arbitrator's authority which will be upheld by the courts should the arbitrator exceed same ( see generally Matter of Silverman [ Benmor Coats], 61 NY2d 299, 308). Accordingly, it would be improper for the court to intervene preemptively ( Committee of Interns and Residents, 86 NY2d at 484).
The first inquiry as to the issue of effects bargaining having been satisfied, the court must now look at the arbitration agreement to determine whether the terms of the CBA's arbitration clause includes the issue of effects bargaining; that is, whether the parties actually agreed to refer this particular matter to arbitration ( id.; Matter of Seneca Falls Central School District, 117 Misc 2d at 882).
"Because public policy favors voluntary settlement and arbitration of labor disputes, both in the public and private sectors, the rule has emerged that where a collective bargaining agreement contains a broad arbitration clause, a dispute asserted under the agreement is presumed to be arbitrable in the absence of 'unmistakably clear language' to the contrary" ( Board of Education of the City of Buffalo v. Buffalo Council of Supervisors and Administrators, 52 AD2d 220, 223-224, quoting Matter of Long Island Lumber Co. [ Martin], 15 NY2d 380, 385).
Here, the arbitration clause broadly defines arbitrable contract interpretation grievances as "a complaint on the part of any covered employee or group of such employees that there has been on the part of Management, noncompliance with or a misinterpretation of any of the provisions of this Agreement or of any written rule, or Policy/Instruction of the Authority governing or affecting its employees."
Said clause is sufficiently broad to encompass the at-issue dispute over petitioner's alleged effects bargaining duties with respect to its route transfer decision or is, at the very least, "susceptible of an interpretation that covers the asserted dispute" so as to allow submission to the arbitrator for a determination as to whether the dispute comes within the scope of the agreement to arbitrate ( Matter of City of Plattsburgh, 250 AD2d at 329; Board of Education of the City of Buffalo v. Buffalo Council of Supervisors and Administrators, 52 AD2d 220, 224).
In sum, respondents' claim, that the proposed route change has been implemented without the NYCTA first taking into account or considering the impact on members' seniority rights ( i.e., engaging in effects bargaining), is an arbitrable dispute, since (1) it presents the limited question of whether the substantive provisions of the CBA requires the NYCTA to engage in effects bargaining prior to or in conjunction with its non-negotiable bus route changes, and (2) the arbitration clause of the CBA is broad enough to encompass the subject matter of the dispute as herein limited.
The Arbitrator shall determine the issue, as limited herein, of whether petitioner violated the CBA or other agreement between the parties as alleged in the grievance and, if so, the appropriate remedy.
Conclusion
Consistent with the foregoing, the petition is, therefore, granted in part and denied in part as follows:
(1) Petitioner's decision to implement an express bus route transfer or change is not arbitrable, and a permanent stay of arbitration is, accordingly, granted as to that issue; and
(2) Petitioner's alleged failure to engage in effects bargaining concerning its bus route transfer decision is subject to arbitration, and a stay of arbitration is, accordingly, denied as to that issue.
The foregoing constitutes the decision, order and judgment of this court.