In re Cnty. of Greene

129 A.D.3d 1181

10 N.Y.S.3d 692

2015 N.Y. Slip Op. 04709

In the Matter of the Arbitration between COUNTY OF GREENE, Respondent and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL–CIO, Greene County Unit 7000, Greene County Local 820, Appellant.

519983

Supreme Court, Appellate Division, Third Department, New York.

June 4, 2015.

Steven A. Crain & Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Jennifer C. Zegarelli of counsel), for appellant.

Roemer Wallens Gold & Mineaux, LLP, Albany (Elena P. Pablo of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

EGAN JR., J.

Appeal from an order of the Supreme Court (Elliott III, J.), entered January 21, 2014 in Greene County, which, among other things, granted petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.

On March 25, 2010, the Green County Civil Service Commission (hereinafter the Commission) adopted a resolution revising, insofar as is relevant here, the rule governing the probationary term of new employees. Specifically, the Commission modified its prior rule, which imposed a probationary term ranging from 8 to 26 weeks, to provide for a probationary term ranging from 8 to 52 weeks. The Commission's resolution was approved by the state Civil Service Commission in February 2011.

In February 2012, petitioner (hereinafter the County) and respondent (hereinafter the Union) executed a collective bargaining agreement (hereinafter CBA). The CBA set forth the terms and conditions of employment as to those County employees who were represented by the Union and covered the period from January 1, 2010 to December 31, 2012. Insofar as is relevant here, article 15.1.1 of the CBA provided that “[a]n employee in the competitive, noncompetitive or labor classes shall be on probation for a period of twenty-six (26) weeks from the date of appointment.”

In May 2013, the Union filed a grievance contending that the County had violated article 15.1.1 of the CBA by imposing upon its members a probationary period in excess of the 26 weeks embodied therein. The Greene County Administrator denied the grievance, concluding that the Civil Service Rules for Greene County controlled, in response to which the Union filed a demand for arbitration. The County thereafter commenced this proceeding pursuant to CPLR 7503 to stay arbitration, and the Union cross-moved to compel arbitration. Supreme Court granted the County's application and denied the Union's cross application, prompting this appeal.

“The threshold determination of whether a dispute is arbitrable is well settled. 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 collective bargaining agreement. 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, 838 N.Y.S.2d 1, 869 N.E.2d 1 [2007] [internal quotation marks and citations omitted]; see Matter of Blackburne [Governor's Off. of Empl. Relations], 87 N.Y.2d 660, 665, 642 N.Y.S.2d 160, 664 N.E.2d 1222 [1996] ; Matter of County of Rockland v. Correction Officers Benevolent Assn. of Rockland County, Inc., 126 A.D.3d 694, 695, 5 N.Y.S.3d 197 [2015] ; Matter of Board of Educ. of Mineola Union Free Sch. Dist. v. Mineola Teachers Assn., 104 A.D.3d 939, 939–940, 963 N.Y.S.2d 129 [2013] ; Matter of Lansingburgh Teachers Assn. [Hardwick], 85 A.D.2d 849, 849, 446 N.Y.S.2d 471 [1981], lv. denied 56 N.Y.2d 501, 450 N.Y.S.2d 1023, 435 N.E.2d 679 [1982] ).

To be sure, “[w]hen a county civil service commission,...