City of Rochester v. AFSCME, Local 1635

• Decision Date: 12 November 1976
• Citation: 54 A.D.2d 257,388 N.Y.S.2d 489
• Parties: , 93 L.R.R.M. (BNA) 2991 CITY OF ROCHESTER, Appellant, v. AFSCME, LOCAL 1635, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 489

388 N.Y.S.2d 489

54 A.D.2d 257, 93 L.R.R.M. (BNA) 2991

CITY OF ROCHESTER, Appellant, v. AFSCME, LOCAL 1635, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Nov. 12, 1976.

Louis N. Kash, Corp. Counsel, Rochester (Emil Karcich, Rochester, of counsel), for appellant.

Hoffenberg & Christiano, Rochester (George Hoffenberg, Rochester, of counsel), for respondent.

Before MARSH, P.J., and MOULE, CARDAMONE, SIMONS and GOLDMAN, JJ.

MOULE, Justice.

The question presented on this appeal is whether respondent's demand for compensation due to petitioner's order prohibiting the use of city-owned vehicles during nonworking hours is an arbitrable issue. Petitioner seeks a stay of arbitration on the grounds of res judicata and that any cash award to municipal employees would constitute a violation of article 8, section 1, of the New York Constitution ¹.

To understand fully the issues involved in this case, it is necessary to present a brief history of the facts leading up to petitioner's demand for a stay of arbitration. In a letter dated March 11, 1975 petitioner informed all supervisory personnel that as of April 14, 1975 they were to leave their city cars at work when their daily work shifts were completed. The institution of this regulation was in direct contradiction to the prior practice of allowing such municipal employees to retain the use of the city cars after working hours.

Upon receipt of this letter respondent, American Federation of State, County and Municipal Employees (AFSCME, Local 1935), filed a grievance dated March 24, 1975, pursuant to the existing collective bargaining agreement, in which it alleged that petitioner was attempting to deprive supervisory personnel of a benefit that they had had for many years and that such deprivation violated article 21, section 2, of the contract. Respondent sought that supervisory personnel be allowed to retain their cars during the hours in question or receive a benefit of equal value.

After the filing of this grievance, a hearing was held before an arbitrator who made a decision dated August 25, 1975 in which he stated: that petitioner is directed to restore the motor vehicles to persons assigned; that it is directed to post on all respondent's bulletin boards such proposed rule changes, if any, relating to the use and operation of motor vehicles at is deems appropriate for a period of ten consecutive work days as provided in the contract; that petitioner is further directed to consult with respondent with respect to such rule changes as provided by the terms of the contract; and that the arbitrator would retain jurisdiction over any dispute that may evolve with respect to the grievance procedure provided in the contract. This arbitration award was confirmed by the Supreme Court on February 8, 1976 and no appeal was taken.

Subsequent to this arbitration decision respondent filed a new grievance dated October 14, 1975 and a demand for arbitration dated November 4, 1975. In this grievance respondent alleged that petitioner, in accordance with the arbitration award of August 25, 1975, had violated article 21, section 2, of the collective bargaining contract which deals with the procedure for initiating work rule changes. It further alleged that this violation resulted in a loss of fringe benefits to all supervisory personnel and foremen for the period from April 14, 1975 through September 8, 1975 which respondent valued at $900.00 ².

On November 21, 1975 petitioner applied for a stay of arbitration. It contended that respondent's latest demand for arbitration was barred by the doctrine of res judicata because the demand for arbitration dated November 4, 1975 concerned matters previously acted upon and decided by the arbitrator in his decision of August 25, 1975. Petitioner further argued that the demand for arbitration sought a remedy violative of article 8, section 1, of the New York State Constitution which prohibits gifts or loans of public funds.

While the court had this application for a stay before it, respondent on November 24, 1975 submitted a second demand for arbitration, alleging the same violation of the collective bargaining agreement as in its grievance of October 14, 1975 but increasing the amount of the loss from $900.00 to $2,000.00. Thereupon petitioner applied for a stay of this arbitration proceeding asserting the same grounds upon which it sought to stay respondent's November 4, 1975 demand for arbitration.

On December 22, 1975 the attorney for respondent filed an affidavit in opposition to the petitions to stay arbitration. He asserted that respondent filed its latest grievance seeking completion of the arbitration decision of August 25, 1975. He further stated that petitioner had not set forth any of the grounds under CPLR 7503 ³ for granting a stay of arbitration.

The applications to stay arbitration of November 21, 1975 and December 10, 1975 were heard on January 7, 1976. In orders dated January 20, 1976 both motions were denied and it is from these two orders that petitioner appealed.

The courts in general have held steadfast to the notion that their role is extremely limited in considering an application to stay arbitration (see Matter of Board of Education of Enlarged City School Dist. of City of Auburn (Auburn Teachers Assn.), 49 A.D.2d 35, 38, 371 N.Y.S.2d 201, 204; New York Inst. of Technology v. Council of Metropolitan & Old Westbury Chapters, 47 A.D.2d 659, 364 N.Y.S.2d 190; Board of Educ. of Chautauqua Cent. School Dist. v. Chautauqua Cent. School Teachers Assn., 41 A.D.2d 47, 51, 341 N.Y.S.2d 690, 695--696). As the Second Department stated in New York Inst. of Technology v. Council of Metropolitan and Old Westbury Chapters (supra):

'The well-established law of this State is clearly to the effect that the role of the courts on an application to stay arbitration, especially one arising out of a collective bargaining agreement, is severely limited (CPLR 7503, subd. (b)) and raises only the questions of whether the parties entered into a valid contract for arbitration of their...