Opinion
6791/2010.
Decided September 22, 2010.
SACA Laura Wong-Pan, County Attorney for Orange County, Goshen, New York.
William T. Burke, Esq., O'Neil Burke, Poughkeepsie, New York.
Petitioner and respondent are parties to a collective bargaining agreement (the "CBA"). On February 16, 2010 a grievance was submitted on behalf of the respondent alleging that the petitioner violated the CBA (the "Grievance").
The CBA was to expire by its terms on December 31, 2006, but its terms were extended, with some modifications, by Stipulation through December 31, 2011.
The Grievance complains that the petitioner replaced the armed security officer with an unarmed security officer at the premises known as 23 Hatfield Lane, Goshen, New York (the "Premises") and demanded that the petitioner "install permanent, armed security officer" at the Premises at which the petitioner maintains a Department of Social Services ("DSS") office. The DSS office is used by many DSS units and is used as a site for supervised visits between foster children and their biological parents. The Grievance states that "numerous concerns of workplace violence security issues have arisen" necessitating the need for the armed security officer.
The Commissioner of the Department of Personnel denied the Grievance on May 17, 2010. The respondent thereafter demanded arbitration, in response to which petitioner timely commenced the instant proceeding.
The petitioner asserts that the new security officer is not an employee of the County and is not therefore covered by the CBA. The petitioner denies that there have been incidents of workplace violence or security breaches or threats at the Premises. The petitioner argues that the issue of whether or not to arm the security officer at the Premises is not a matter incorporated in the terms of the CBA and is "exclusively a matter of management discretion". Petitioner argues that the arbitration sought by the respondent is prohibited by the terms of the contract between the petitioner and the independent security firm. Accordingly, as the matter is not a contractual CBA issue, it is not subject to "grievance and arbitration procedures".
The respondent argues that once this Court determines that a valid contract exists, then the "scope of the matters which might be arbitrated there under" must be decided by an arbitrator.
Discussion
"Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain whether the parties may arbitrate their dispute and, if so, whether they agreed to do so." In re New York State Correctional Officers and Police Benev. Ass'n, Inc. (New York State Dept. of Civil Service), 70 AD3d 240, 243, 892 NYS2d 614, 616 (3rd Dept., 2009), citing , Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v. Board of Educ. of City School Dist. of City of NY , 1 NY3d 72 , 78-79, 769 NYS2d 451, 801 NE2d 827 (2003).
Arbitration of the Grievance is not prohibited by any statutory, constitutional or public policy rule of law, therefore petition will not be granted based on the first prong of the analysis. Id. The dispositive question here is whether these parties agreed to arbitrate the matters contained in the Grievance. City of Newburgh v. Civil Service Employees Ass'n, Inc., 232 AD2d 555, 648 NYS2d 675 (2nd Dept., 1996).
In determining whether or not a particular claim sought to be arbitrated lies within the scope of the parties' arbitration agreement "the courts are not to engage in a penetrating analysis of the scope of the substantive provisions of a CBA". New York City Transit Authority v. Amalgamated Transit Union of America, AFL-CIO, Local 1056, 284 AD2d 466, 468, 726 NYS2d 694, 695(2nd Dept., 2001), citing, Matter of Board of Educ. of Watertown City School Dist., 93 NY2d 132, 143, 688 NYS2d 463, 710 NE2d 1064 (1999); Matter of Silverman [Benmor Coats], 61 NY2d 299, 473 NYS2d 774, 461 NE2d 1261 (1984). "Rather, the courts are merely to determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'". Id., quoting, Matter of Board of Educ. of Watertown City School Dist., supra.
Indeed, "[w]hen an arbitration provision is broad, to exclude a substantive issue from arbitration generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach." Id. It is well settled that this Court should not stay an arbitration when the parties' agreement to arbitrate is clear but there is some ambiguity as to whether the dispute is adequately covered by the terms of the contract, since the question of the scope of applicable contract provisions is a matter of contract interpretation for an arbitrator to resolve. Town of Ramapo v. Ramapo Police Benev. Ass'n , 17 AD3d 476 , 793 NYS2d 449 (2nd Dept., 2005).
The CBA defines the term "grievance" as an "alleged violation of the [CBA] or any dispute with respect to its meaning or application . . ." (CBA at Article 30, Section 1, ¶ 5). Here the provision upon which the respondent relies is Article One of the CBA, the Preamble clause. Among the provisions contained therein is the intent of the parties to "maintain a harmonious and cooperative relationship between the County of Orange and its employees in order to protect the public by assuring at all times the orderly and uninterrupted operation and function of government" and to "Promote fair and reasonable working conditions" (CBA at Article One, ¶¶ 1 and 2).
While not binding on this Court, respondent does site an Arbitration Opinion and Award dated March 3, 1998 involving these same parties wherein the arbitrator rejected the County of Orange's argument that the same Preamble of the CBA was not arbitrable. There the arbitrator permitted the grievance to go forward based on the violation of the Preamble Clause of the CBA.
Based on the Preamble and the definition of "Grievance" under the CBA there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.
Interestingly, the Commissioner's May 17, 2010 denial of the Grievance, specifically states that
Pursuant to Article Thirty, Section 3, the Union may appeal an unsatisfactory decision at Step 2, by a demand for arbitration presented to the Public Employment Relations Board with a copy sent to the Commissioner of Personnel within twenty (20) working days of receipt of the Step 2 decision requesting a list from which the parties shall select the arbitrator who shall arbitrate said dispute in accordance with the rules and procedures of said Public Employment Relations Board. (May 17, 2010 Decision annexed to Petition as Exhibit C.)
Clearly, even the Commissioner was of the belief that the instant Grievance was covered by the CBA.
Petitioner's contention that its contract with the independent security firm prohibits arbitration is rejected.
Initially, the Court notes that by directing the parties to proceed to arbitration does not assure an arbitration result in favor of the respondent. This Court has determined that the parties should proceed to arbitration, not what the ultimate outcome of that arbitration should be.
That the CBA does not preclude the petitioner from entering into other independent contracts is certain, however in doing so, it cannot ignore its own contractual obligations under the CBA. It is worth noting that the CBA was in existence long before the independent contract for security became effective. It is axiomatic that a party who enters into separate contracts with different parties must manage its contracts so that its obligations under its first contract are not impaired by its obligations under subsequent agreements.
The petitioner as a contracting party is the master of which contracts it chooses to enter into and the manager of what terms it finds agreeable. Accordingly it cannot absolve itself of its contractual obligations under the CBA by entering into a subsequent agreement with another party containing incompatible terms. That petitioner's contractual obligations under the two agreements may not be compatible with each other is of no moment to any other entity. That compliance with the pre-existing CBA may cause a breach in the later negotiated contract is not a valid basis to vitiate the petitioner's obligations under the CBA.
By way of analogy if a manufacturer contracted with a retailer to deliver 500 shirts and then subsequently contracted with another manufacturer to deliver 1000 shirts on the same day, it cannot claim as a defense to its obligations under the first contract that to comply with those obligations would render it in default with its contractual obligations under the second agreement.
Accordingly, it is hereby
ORDERED, that the petition is dismissed and arbitration is to proceed.
The foregoing constitutes the Judgment, Opinion, Decision, and Order of the Court.