In the Matter of The Arbitration Between Union–endicott Cent. Sch. Dist.

• Decision Date: 16 June 2011
• Citation: 926 N.Y.S.2d 184,2011 N.Y. Slip Op. 05167,85 A.D.3d 1432,268 Ed. Law Rep. 932
• Parties: In the Matter of the Arbitration between UNION–ENDICOTT CENTRAL SCHOOL DISTRICT, Appellant,andUNION–ENDICOTT MAINTENANCE WORKERS' ASSOCIATION, on behalf of George Kolmel, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1432

926 N.Y.S.2d 184

268 Ed. Law Rep. 932

2011 N.Y. Slip Op. 05167

In the Matter of the Arbitration between UNION–ENDICOTT CENTRAL SCHOOL DISTRICT, Appellant,andUNION–ENDICOTT MAINTENANCE WORKERS' ASSOCIATION, on behalf of George Kolmel, et al., Respondents.

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

June 16, 2011.

Law Firm of Frank Miller, East Syracuse (Frank W. Miller of counsel), for appellant.Richard E. Casagrande, New York State United Teachers, Latham (Marilyn Raskin–Ortiz of counsel), for respondents.Before: PETERS, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ.PETERS, J.P.

Appeal from an order of the Supreme Court (Tait, J.), entered August 24, 2010 in Broome County, which, among other things, denied petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.

Petitioner and respondent Union–Endicott Maintenance Workers' Association (hereinafter the Union) are parties to a collective bargaining agreement (hereinafter CBA). Respondent George Kolmel was a member of the Union by virtue of his employment as a maintenance worker for petitioner. In May 2009, after nearly 35 years of service, Kolmel submitted a letter of resignation to petitioner with an effective date of September 30, 2009. Before his resignation became effective, petitioner learned of allegations that Kolmel had committed a sex offense against his step-granddaughter, who was a student at the school. Thereafter, petitioner placed Kolmel on suspension, disregarded his resignation letter pursuant to 4 NYCRR 5.3(b) and filed disciplinary charges against him pursuant to Civil Service Law § 75.

Following the hearing on the disciplinary charges, but before a decision was rendered, the Union filed a grievance on behalf of Kolmel alleging that petitioner violated the CBA by conditioning Kolmel's entitlement to retirement benefits upon the outcome of the disciplinary proceeding. Specifically, respondents alleged that, notwithstanding petitioner's decision to disregard Kolmel's letter of resignation and pursue disciplinary charges, Kolmel met the requirements to receive retirement health benefits under the CBA.¹ After a Hearing Officer sustained the charges against Kolmel and recommended his termination, petitioner's Board of Education passed a resolution terminating Kolmel and denied his grievance on the ground that, since he was terminated from employment, he was not a “retiree” for purposes of retirement health benefits under the CBA. Respondents thereafter filed a demand for arbitration, after which petitioner commenced this proceeding to stay arbitration ( see CPLR 7503). In response, respondents filed a cross application to compel arbitration. Supreme Court denied petitioner's application to stay arbitration and granted respondents' cross application to compel arbitration, finding that there was no public policy prohibiting arbitration of the issue of Kolmel's entitlement to postemployment health benefits and that the dispute was one which the parties had agreed to arbitrate under the CBA. Petitioner now appeals, and we affirm.

“The court's role in reviewing applications to stay arbitration is ... a limited one” ( Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 N.Y.2d 905, 906, 516 N.Y.S.2d 195, 508 N.E.2d 930 [1987]; accord Matter of Peters v. Union–Endicott Cent. School Dist., 77 A.D.3d 1236, 1238, 910 N.Y.S.2d 191 [2010] ). Under the two-pronged test for determining whether a grievance is arbitrable, we must first determine “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” ( Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 N.Y.2d 273, 278, 755 N.Y.S.2d 49, 784 N.E.2d 1158 [2002]; see Matter of County of Broome [New York State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL–CIO], 80 A.D.3d 1047, 1048–1049, 915 N.Y.S.2d 708 [2011] ). “If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement” ( 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]; see Matter of Schuyler County [Schuyler County Hwy. Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000], 80 A.D.3d 1140, 1141, 915 N.Y.S.2d 754 [2011] ).

The issue raised by the instant grievance is whether Kolmel is considered a retiree for purposes of entitlement to retirement health benefits under the CBA. Petitioner contends that public policy prohibits arbitration of the matter since determination of Kolmel's employment status is governed by 4 NYCRR 5.3(b), which provides that “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.” According to petitioner, to allow an arbitrator to determine whether Kolmel retired or was dismissed for purposes of receiving retiree benefits under the CBA would violate the policy considerations embodied in 4 NYCRR 5.3(b) in that it would defeat its authority to disregard petitioner's resignation and ignore Kolmel's status as a dismissed employee under the regulation. We disagree.

“[I]t is well settled that ‘there is no prohibition against arbitrating a dispute originating from the terms of a collective bargaining agreement concerning health insurance benefits for retirees' ” ( Matter of Peters v. Union–Endicott Cent. School Dist., 77 A.D.3d at 1239, 910 N.Y.S.2d 191, quoting Matter of City of Ithaca [Ithaca Paid Fire Fighters Assn., IAFF, Local 737], 29 A.D.3d 1129, 1130, 815 N.Y.S.2d 761 [2006]; see Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 N.Y.2d 132, 138–139, 688 N.Y.S.2d 463, 710 N.E.2d 1064 [1999] ). Here, petitioner has not identified any statute, precedent or public policy that prohibits arbitration of a dispute over the provision of contractual postemployment retirement benefits to an employee who has committed a crime or otherwise engaged in misconduct. Furthermore, although 4 NYCRR 5.3(b) provides for an employee's termination under these circumstances to be recorded as a dismissal rather than a resignation, no law or policy requires an employee's status under 4 NYCRR 5.3(b) to be determinative of that employee's status under the CBA. The issue of the effect, if any, of Kolmel's status as a dismissed employee pursuant to 4 NYCRR 5.3(b)—as well as his alleged misconduct—as it pertains to his entitlement to benefits goes to the merits of the grievance, not to its arbitrability ( see Matter of Peters v. Union–Endicott Cent. School Dist., 77 A.D.3d at 1240, 910 N.Y.S.2d 191; Matter of Board of Trustees of Cayuga County Community Coll. [Cayuga County Community Coll. Faculty Assn.], 299 A.D.2d 907, 908, 750 N.Y.S.2d 721 [2002]; see generally Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 N.Y.2d at 279, 755 N.Y.S.2d 49, 784 N.E.2d 1158; Board of Educ. [Watertown Educ. Assn.], 93 N.Y.2d at 142–143, 688 N.Y.S.2d 463, 710 N.E.2d 1064; Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 N.Y.2d at 906, 516 N.Y.S.2d 195, 508 N.E.2d 930).

Petitioner also asserts that arbitration of Kolmel's status as a retiree for purposes of entitlement to postemployment health benefits would countervail the public policy of protecting children from sex offenders in the educational setting ( see Matter of Binghamton City School Dist. [Peacock], 33 A.D.3d 1074,...