Johnson City Prof'l Firefighters Ass'n, Local 921 v. Vill. of Johnson City

• Decision Date: 08 July 2010
• Citation: 75 A.D.3d 805,906 N.Y.S.2d 343
• Parties: In the Matter of JOHNSON CITY PROFESSIONAL FIRE FIGHTERS LOCAL 921 et al., Respondents, v. VILLAGE OF JOHNSON CITY, Appellant. (Proceeding No. 1.) In the Matter of the Arbitration between Village of Johnson City, Appellant, and Johnson City Firefighters Association, Local 921 IAFF, Respondent. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 343

75 A.D.3d 805

In the Matter of JOHNSON CITY PROFESSIONAL FIRE FIGHTERS LOCAL 921 et al., Respondents,

v. VILLAGE OF JOHNSON CITY, Appellant. (Proceeding No. 1.)In the Matter of the Arbitration between Village of Johnson City, Appellant,andJohnson City Firefighters Association, Local 921 IAFF, Respondent. (Proceeding No. 2.)

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

July 8, 2010.

Coughlin & Gerhart, L.L.P., Binghamton (Paul J. Sweeney of counsel), for appellant.

Hinman, Howard & Kattell, L.L.P., Binghamton (Paul T. Sheppard of counsel), for respondents.

Before: CARDONA, P.J., ROSE, STEIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeals (1) from an order of the Supreme Court (Lebous, J.), entered June 19, 2009 in Broome County, which, among other things, granted petitioner's application in proceeding No. 1 pursuant to CPLR 7503 to compel arbitration between the parties, and (2) from an order of said court, entered August 18, 2009 in Broome County, which, among other things, denied petitioner's application in proceeding No. 2 pursuant to CPLR 7503 to stay arbitration between the parties.

The Village of Johnson City and the Johnson City Professional Fire Fighters Local 921 (hereinafter the Union) are parties to a collective bargaining agreement (hereinafter CBA). In 2009, the Village issued notices of discipline to certain fire personnel and selected a hearing officer to preside over theirdue process hearings. The Union filed a grievance against the Village's unilateral selection of the hearing officer, and the Union and affected employees subsequently commenced proceeding No. 1 seeking to annul the Village's hearing officer selection and to compel arbitration. The Village commenced proceeding No. 2 seeking a permanent stay of arbitration, and the Union cross-claimedfor an order compelling arbitration. In proceeding No. 1, Supreme Court issued an order enjoining further disciplinary proceedings and compelling arbitration; in proceeding No. 2, the court found that the issue was referable to arbitration, denied the Village's application, and granted the Union's cross application to compel arbitration. The Village appeals from the orders in both proceedings.¹

Whether a grievance may be arbitrated is decided by determining whether any statutory, constitutional or public policy prohibition bars arbitration of the dispute at issue and, if not, whether the parties agreed to arbitrate it ( see 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]; 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] ). The Village is statutorily vested with the power to designate a hearing officer in disciplinary proceedings ( see Civil Service Law § 75[2] ). This statutory power may be modified or superseded through collective bargaining or negotiation ( see Matter of Incorporated Vil. of Hempstead v. Public Empl. Relations Bd., 137 A.D.2d 378, 383, 529 N.Y.S.2d 219 [1988], lv. denied 72 N.Y.2d 808, 534 N.Y.S.2d 666, 531 N.E.2d 298 [1988]; Matter of Marin v. Benson, 131 A.D.2d 100, 102-103, 520 N.Y.S.2d 642 [1987] ), and a public entity may agree to submit disciplinary procedures to arbitration ( see Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v. Helsby, 62 A.D.2d 12, 17, 404 N.Y.S.2d 396 [1978], affd. 46 N.Y.2d 1034, 416 N.Y.S.2d 586, 389 N.E.2d 1106 [1979]. The Village does not therefore contend that any statutory, constitutional, or public policy obstacle exists to arbitration of the dispute regarding its selection of a disciplinary hearing officer. Instead, it argues that modification of such a statutory power must be voluntarily undertaken as the result of "a conscious choice" ( Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 N.Y.3d 660, 664, 797 N.Y.S.2d 410, 830 N.E.2d 308 [2005] ), and that there was no such agreement.

The CBA provides for arbitration of any dispute "involving the interpretation or application of any provisions of [the CBA]," a provision this Court has described as broad ( see Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 72 A.D.3d 1235, 1238, 898 N.Y.S.2d 706 [2010] ). In deciding whether the provision constitutes an agreement to arbitrate aparticular dispute, this Court "is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA" ( Matter of City of Elmira [Elmira Professional Firefighters' Assn., AFL-CIO, I.A.F.F.-Local 709], 34 A.D.3d 1075, 1076, 824 N.Y.S.2d 778 [2006] [internal quotation marks and citations omitted]; see Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 N.Y.2d 132, 140, 688 N.Y.S.2d 463, 710 N.E.2d 1064 [1999] ). We conclude that no such reasonable relationship exists between this CBA and the parties' dispute regarding the selection of a hearing officer.

The CBA does not mention the selection of disciplinary hearing officers; its sole reference to disciplinary proceedings is a requirement that any reprimand be conducted privately, in a manner to avoid embarrassment. The Union does not rely upon this provision, but instead upon a section providing that "[n]othing [in theCBA] shall be deemed to prohibit the adoption of rules by the [Fire] Department for the operation of the Department, providing such rules do not conflict with any of the provisions of [the CBA]." The Union argues that this provision refers to the Village's "Rules and Regulations for the Government of the Fire Department" (hereinafter rules). These rules provide for disciplinary procedures including a hearing "by an impartial hearing officer as agreed upon in the...