CIVIL SERVICE EMPLOYEES ASSOCIATION INC LOCAL 828 AFSCME AFL CIO RESPONDENT RESPONDENT v. << (2017)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating that part of the order directing petitioner to hold a step two hearing within 30 days and as modified the order is affirmed without costs.

Memorandum:  Petitioner commenced this proceeding pursuant to CPLR article 75 seeking a permanent stay of arbitration of a grievance arising from petitioner's termination of one of respondent's members.  Petitioner appeals from an order that, inter alia, denied its application for a permanent stay and directed petitioner to hold a hearing pursuant to step two of the three-step grievance procedure set forth in the collective bargaining agreement (CBA) within 30 days.

Contrary to petitioner's contention, we conclude that Supreme Court properly denied petitioner's request for a permanent stay of arbitration.  We agree with petitioner, however, that the court erred in directing it to hold a step two hearing, and we therefore modify the order accordingly.  Contrary to the court's determination, a step two hearing is not a condition precedent to arbitration under the terms of the CBA. Where, as here, the CBA contains a broad arbitration clause and does not expressly identify any conditions precedent to arbitration, the alleged failure of a party to comply strictly with the contractual grievance procedures or time limits is not a proper ground for a stay of arbitration because such issues are to be resolved by the arbitrator (see Matter of Kachris [Sterling], 239 A.D.2d 887, 888;  see also Matter of Enlarged City Sch. Dist. of Troy [Troy Teachers Assn.], 69 N.Y.2d 905, 907;  Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 N.Y.2d 358, 363–364).  Inasmuch as a step two hearing is a permissive and not a mandatory part of the CBA's grievance and arbitration procedure, strict compliance with each step in the procedure is not a condition precedent to arbitration (see Matter of Kenmore–Town of Tonawanda Union Free Sch. Dist. [Ken–Ton Sch. Empls.  Assn.], 110 AD3d 1494, 1496).

Mark W. Bennett

Clerk of the Court