IN RE: TOWN OF GREENBURGH (2025)

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL–CIO, Westchester County Local 860, Town of Greenburgh Unit appeals from an order of the Supreme Court, Westchester County (Thomas Quiñones, J.), dated September 19, 2023.  The order granted the petition to permanently stay arbitration and denied the cross-petition to compel arbitration.

ORDERED that the order is affirmed, with costs.

An employee of the Town of Greenburgh was promoted to the position of general foreman on a probationary basis and then reassigned to his former position during the probationary period.  The employee subsequently filed a grievance with the Town. Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL–CIO, Westchester County Local 860, Town of Greenburgh Unit (hereinafter CSEA) filed a demand for arbitration on behalf of the employee.  In April 2023, the Town commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration.  CSEA opposed the petition and cross-petitioned to compel arbitration.  The Supreme Court granted the Town's petition and denied CSEA's cross-petition.  CSEA appeals.

“ ‘Public policy in New York favors arbitral resolution of public sector labor disputes’ ” (Matter of City of New Rochelle v. Uniformed Fire Fighters Assn., Inc., Local 273, I.A.F.F., 206 A.D.3d 727, 728, 168 N.Y.S.3d 327, quoting Matter of County of Nassau v. Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 A.D.3d 1049, 1050, 137 N.Y.S.3d 77;  see Matter of Village of Walden v. Village of Walden Police Benevolent Assn., Inc., 210 A.D.3d 990, 991, 179 N.Y.S.3d 277).  “ ‘However, a dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test’ ” (Matter of City of Yonkers v. Yonkers Fire Fighters, Local 628, IAFF, AFL–CIO, 167 A.D.3d 599, 600, 88 N.Y.S.3d 502, quoting Matter of City of Yonkers v. Yonkers Fire Fighters, Local 628, IAFF, AFL–CIO, 153 A.D.3d 617, 617–618, 60 N.Y.S.3d 244;  see Matter of Town of N. Hempstead v. Civil Serv. Empls. Assn., Inc., Local 1000, 164 A.D.3d 1348, 1349, 84 N.Y.S.3d 189).  “ ‘In determining whether a grievance is arbitrable, a court must first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance, and if there is no prohibition against arbitration, the court must then examine the [collective bargaining agreement] to determine if the parties have agreed to arbitrate the dispute at issue’ ” (Matter of Village of Walden v. Village of Walden Police Benevolent Assn., Inc., 210 A.D.3d at 991, 179 N.Y.S.3d 277 [internal quotation marks omitted], quoting Matter of City of New Rochelle v. Uniformed Fire Fighters Assn., Inc. Local 273, I.A.F.F, 206 A.D.3d at 728, 168 N.Y.S.3d 327;  see Matter of County of Nassau v. Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 A.D.3d at 1050, 137 N.Y.S.3d 77).

The Supreme Court properly found that public policy prohibits arbitration of the subject grievance.  “ ‘An employee's probationary appointment may be terminated ․ for any reason or no reason at all, so long as the termination was not in bad faith or for an improper or impermissible reason’ ” (Matter of Young v. City of New York, 221 A.D.3d 721, 722, 199 N.Y.S.3d 614, quoting Matter of Trager v. Suffolk County, 185 A.D.3d 697, 698, 126 N.Y.S.3d 513).  “ ‘[A] probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible reason or an illegal purpose, or in violation of statutory or decisional law’ ” (Matter of Hayes v. State of New York, 134 A.D.3d 843, 844, 20 N.Y.S.3d 638, quoting Matter of Robinson v. Health & Hosps. Corp., 29 A.D.3d 807, 808, 815 N.Y.S.2d 222;  see Matter of York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838).

Here, the employee was not discharged from his employment, and he did not allege that his reassignment to his former position was for a constitutionally impermissible purpose or in violation of statutory or decisional law.  Nor is a reassignment from a probationary position to one's former position a punishment pursuant to Civil Service Law § 75 (see Matter of Patel v. New York City Hous. Auth., 26 A.D.3d 172, 174, 809 N.Y.S.2d 22).  Moreover, Civil Service Law § 63(2) provides that the state civil service commission and municipal civil service commissions shall “provide by rule for the conditions and extent of probationary service.”  Pursuant to this statute, the Westchester County Department of Human Resources set forth the conditions of probationary appointment in Civil Service Rule 11.  Thus, requiring the Town to follow for-cause procedures before exercising its discretion in reassigning a probationary employee during the probationary period would be against the purpose of probationary terms, as well as against the policy of allowing the Town to exercise its discretion in maintaining its work force (see 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;  Matter of City of Long Beach v. Long Beach Professional Fire Fighters Assn., Local 827, 161 A.D.3d 855, 858, 77 N.Y.S.3d 502).

Furthermore, contrary to CSEA's contention, the parties had not agreed to arbitrate the subject grievance.  Arbitration is a creature of contract (see Matter of Brady v. Williams Capital Group, L.P., 14 N.Y.3d 459, 465, 902 N.Y.S.2d 1, 928 N.E.2d 383;  Credit Suisse First Boston Corp. v. Pitofsky, 4 N.Y.3d 149, 155, 791 N.Y.S.2d 489, 824 N.E.2d 929).  If the court determines that the parties did not make an agreement to arbitrate, “that concludes the matter and a stay of arbitration will be granted or the application to compel arbitration will be denied” (Matter of County of Rockland [Primiano Constr. Co., Inc.], 51 N.Y.2d 1, 7, 431 N.Y.S.2d 478, 409 N.E.2d 951;  see Matter of City of New Rochelle v. Uniformed Fire Fighters Assn., Inc., Local 273, I.A.F.F., 206 A.D.3d at 729, 168 N.Y.S.3d 327).  Where the relevant arbitration provision of a collective bargaining agreement (hereinafter the CBA) is broad, a court should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA (see Matter of County of Nassau v. Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 A.D.3d at 1050, 137 N.Y.S.3d 77;  Matter of City of Yonkers v. Yonkers Fire Fighters, Local 628, IAFF, AFL–CIO, 176 A.D.3d 1197, 1199, 112 N.Y.S.3d 159).  If there is none, the issue, as a matter of law, is not arbitrable (see Matter of City of Yonkers v. Yonkers Fire Fighters, Local 628, IAFF, AFL–CIO, 187 A.D.3d 900, 901, 133 N.Y.S.3d 268).

Here, article XXIII, section 2(b) of the CBA specifically excludes from the definition of “Grievance” matters that are within the Town's “exclusive authority to act,” which includes “the right of the Town to direct its work force, to make all decisions as to the operation of the Town system and its work force, ․ and all other rights normally inherent in the right of management.”  Thus, there is no reasonable relationship between the subject matter of the dispute, which involves decisions regarding the Town's work force that are within its exclusive authority to act, and the general subject matter of the CBA (see Matter of Village of Walden v. Village of Walden Police Benevolent Assn., Inc., 210 A.D.3d at 992, 179 N.Y.S.3d 277;  Matter of Town of N. Hempstead v. Civil Serv. Empls. Assn., Inc., Local 1000, 164 A.D.3d at 1350, 84 N.Y.S.3d 189).

Accordingly, the Supreme Court properly granted the Town's petition to stay arbitration and denied CSEA's cross-petition to compel arbitration.

In light of the foregoing, CSEA's remaining contention need not be addressed.

BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.