City of Plattsburgh v. Local 788 and New York Council 66, American Federation of State, County and Mun. Employees, AFL-CIO

• Decision Date: 21 February 1985
• Docket Number: A,AFL-CI
• Citation: 108 A.D.2d 1045,485 N.Y.S.2d 618
• Parties: In the Matter of the Arbitration between the CITY OF PLATTSBURGH, Respondent, and LOCAL 788 AND NEW YORK COUNCIL 66, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,ppellant.
• Court: New York Supreme Court — Appellate Division

Page 618

485 N.Y.S.2d 618

108 A.D.2d 1045

In the Matter of the Arbitration between the CITY OF

PLATTSBURGH, Respondent,

and

LOCAL 788 AND NEW YORK COUNCIL 66, AMERICAN FEDERATION OF

STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 21, 1985.

Thomas A. Robinson, Corp. Counsel, Plattsburgh, for respondent.

Joel M. Poch, Associate Counsel, Buffalo, for appellant.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MIKOLL, Justice.

Appeal from a judgment of the Supreme Court at Special Term, entered July 3, 1984 in Clinton County, which granted petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.

Dennis D. Mousseau was hired by petitioner as a water and sewer maintenance man in 1977. On February 9, 1978, he received a temporary appointment as a water meter service man; his appointment was made permanent on April 11, 1979. Also on February 9, 1978, another employee of petitioner, Roland Racine, received a permanent appointment as a water meter service man. Both employees were in the competitive class of the civil service system and covered by a collective bargaining agreement between petitioner and respondent. Petitioner abolished one of its water meter service men positions on December 29, 1983 and demoted Mousseau to the position of water and sewer maintenance man. In response to this demotion, respondent sent petitioner a demand to arbitrate.

Petitioner then made this application to stay arbitration on the ground that the matter was not arbitrable since, in making a determination on the order of demotions, a conflict exists between the seniority provisions in the collective bargaining agreement, which employs the date hired, and the seniority provision in Civil Service Law § 80, which uses the date of permanent appointment. Petitioner further maintained that the arbitration clause in the agreement by its terms removes the arbitrator's power to modify the contract and to determine the legality or illegality of the seniority provision in the agreement. Special Term granted petitioner's application, ruling that under the terms of the agreement the arbitrator was not empowered to decide the instant matter. This appeal by respondent ensued.

The judgment entered at Special Term should be affirmed. The stay of arbitration was properly granted since Civil Service Law § 80 served to prohibit the parties from arbitrating this dispute. This section clearly provides that "demotion * * * among...