Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, May 3, 2012

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so


Arbitration between the Town Of Saugerties and the Town of Saugerties Policeman's Benevolent Assn., 2012 NY Slip Op 00458, Appellate Division, Third Department
The Town of Saugerties challenged the Supreme Court's denial of its CPLR 7503 petition to stay the arbitration of a grievance filed by the Town of Saugerties Policeman's Benevolent Association [PBA] concerning an order that required a police officer to work in excess of an eight-hour tour.
The Collective Bargaining Agreement (CBA) stated, among other things, that the Town "agrees to comply with the requirements of §971 of the Unconsolidated Laws of New York."*
Courts, said the Appellate Division, determine arbitrability according to a two-prong test:
1. May the parties arbitrate the dispute and, if so,
2. Whether the parties in fact agreed to do so.
The Town contended that demand to arbitrate fails both tests as the resolution of the dispute:
1. Requires the application or interpretation of the terms of a statute and public policy will not permit an arbitrator to apply or interpret a statute, and
2. The parties did not agree to arbitrate the application or interpretation of the statute at issue here.
The Appellate Davison decided that neither of the Town’s arguments had merit, explaining that the CBA incorporates §971 by reference, making the language of the statute a substantive provision of the CBA.
Further, said the court, the Town had identified any public policy that would preclude the arbitrator from interpreting such language set out in the CBA.
In addition, the court noted that the CBA defines disputes as "[a]ny grievance arising concerning the interpretation or application of the terms of this contract or the rights claimed thereunder and/or working conditions."
As the dispute underlying the PBA’s grievance concerns overtime, which is clearly a working condition, clearly one that the parties intended to arbitrate the Appellate Division concluded that Supreme Court correctly granted the PBA’s cross motion to compel arbitration and dismissed the Town’s petition.
* §971 of the Unconsolidated Law, in relevant part, provides that police officers shall not be assigned to tours of duty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions. See, also,  Police Asso. of the City of Mt. Vernon v City of Mt. Vernon, 279 A.D.2d 561, posted on the Internet at:

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

Arbitration Law, Public Sector Labor Law | Permalink


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