Counsel for the parties herein appeared and presented their arguments on January 14, 2014 at the conclusion of which the Court reserved decision.

This matter is brought pursuant to CPLR Article 75 "Arbitration" and CPLR Article 4 "Special Proceedings". By notice of petition and petition filed with the Monroe County Clerk on July 25, 2013, petitioners, as employer, commenced this special proceeding seeking an order pursuant to CPLR §7503[b] against respondent, as employee union, permanently staying the arbitration between them. On July 5, 2013, the respondent filed and served a Demand for Arbitration on the county, by providing such Demand to the county's department of human resources office on that date, pursuant to CPLR §7503[c].

CPLR §7503[c] provides that a party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought, and the name and address of the party serving the notice, stating that unless the party served applies to stay the arbitration within 20 days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Here the respondent made such a demand with its July 5, 2013 filing and submission to the county. [*2]

The underlying dispute between the parties involves the payment to certain of the respondent's members of "roll call briefing pay". The employees involved are security officers, providing security for the New York State Courts in Monroe County who work as court security sergeants, supervising the deputy court security officers under them. The sergeants meet together for 15 minutes before these same sergeants, as supervisors, then meet with the deputy court security officers for 15 minutes at the start of the work day.The respondent takes the position that the sergeants are compensated for only one 15 minute period, instead of two 15 minute periods that they are actually working. The respondent asserts that the sergeants receive a lump sum of $88 per pay period for attending only one 15 minute daily briefing, yet they are required to attend two 15 minute daily briefings per day, one with the other sergeants and one with the deputies, before the start of their regular shift. The deputies, on the other hand, are paid $60 for their roll call briefing per pay period. The petitioners assert that the $88 is for the whole half hour that the sergeants attend briefings before their shift starts, and that this has been the practice for many years. Thus the petitioners argue that the issue is not covered by the Collective Bargaining Agreement (CBA), and so there is no valid agreement to arbitrate this particular dispute.

The petitioners argue that the issue respondent seeks to arbitrate is not an issue that the parties agreed to arbitrate, because the issue involves a past practice, not a violation of the collective bargaining agreement and "because the parties have not established a special written agreement to process this untimely complaint to arbitration as required by the parties' CBA." Petition para 29. Thus respondent is prohibited from availing itself of the arbitration process.

Additionally, petitioners point to a pending case in federal court involving the same or similar issues, albeit different plaintiffs, in which certain named employees, not the union, sued the county in federal court. In that case, the plaintiffs are the individual members of the union, seeking relief under the Fair Labor Standards Act (FLSA) and NY Labor Law for a putative class that includes Monroe County Deputy Sheriffs and Deputy Sheriff Sergeants that work in the Court Security Bureau. Monroe County filed a motion for summary judgment in the federal action on May 5, 2013 for dismissal, including dismissal of the cause of action for failing to pay sheriff sergeants wages for their hours worked attending and administering the deputy sheriff's roll-call briefing period. The federal court has not yet ruled on the county's motion to dismiss. Therefore the county urges this court to stay the arbitration, at least until the federal suit is completed, due to the similarity of issues in that case, the issue herein, and similarity of parties, pointing out that defense counsel here represents the individual sheriff deputies and sergeants in the federal case as well.

The respondent answered the petition and cross petitioned for an order compelling arbitration and for costs. See CPLR §7503[a] and 22 NYCRR 130-1.1 (frivolous conduct). The respondent asserts that there is a defense to the petition founded upon documentary evidence; that the petition fails to state a cause of action; that the parties have a written agreement to submit the dispute to arbitration; that the petition improperly seeks to have the court consider the underlying dispute; and that the petition is frivolous as it is completely without merit in law.

Respondent further argues that the CBA does cover the dispute herein. See Article 8.5.1 which states: "In recognition of the fact that all members of the bargaining unit are required to assemble for a briefing fifteen (15) minutes prior to the beginning of their tour of duty, payment [*3]for roll call shall be made. Members holding the title of Sergeant shall be paid $88 per pay period. Members holding the title Deputy shall be paid $60 per pay period."The respondent asserts that the $88 payment to sergeants is for their own 15 minute roll-call briefing, not for administering the deputies' separate 15-minute roll-call briefing. Sergeants are not otherwise compensated for work performed in administering the deputies' 15-minute roll-call briefing.

Respondent asserts that the grievance provision of the CBA, Art. 35.2.1, provides: "grievance shall be defined as any claimed violation of a specific provision of this agreement, or any matter which relates to employee health and safety." The CBA does not contain any other limitations on what may constitute a grievance. The respondent union argues that its grievance filed May 17, 2013 regarding failing to pay sergeants for administering the deputies' 15 minute roll-call briefing, claiming violation of CBA Articles 8.5.1 ( Roll Call Briefing Pay), 8.1 (salaries), 9.2.1 and 9.2.4 (work shifts) is a valid grievance, subject to arbitration. The respondent claims that the county erroneously interprets Article 8.5.1 as providing the $88 bi-weekly payment to compensate sergeants for both their 15 minute roll call briefing plus administering the deputies 15-minute roll-call briefing, resulting in a decrease of the sergeants' hourly rate and increasing their daily work shift violating CBA Art 8.1 and 9.2.

As for the federal law suit, respondent argues that the plaintiffs there are individual employees, the union is not a party and that lawsuit does not assert causes of action for violation of the CBA. The issues there are whether the county violated the FLSA by failing to pay all overtime compensation due the plaintiffs as a result of its admitted failure to include the plaintiffs' roll-call briefing pay in calculating the regular rate of pay under the FLSA prior to July 2011 and whether the county is entitled to a special statutory exemption from the FLSA's normal overtime threshold requirements. The overtime issue involves the fact that overtime is determined by computing 1.5 of regular pay. The plaintiffs in the federal suit assert that since they are not compensated for the 15 minutes for the roll calls, but should be, that their wages are lower than they should be and so the overtime rate is lower than it should be. Respondent asserts the federal suit is based on statutory issues, not contractual issues, and involves different matters than the grievance.

The respondent asserts that the petition herein is frivolous as it is completely without merit in law and appears to have been undertaken to delay or prolong resolution of the matter or harass respondent. Therefore the respondent seeks costs, including attorney fees. 22 NYCRR §130-1.1.

The issue presently before this court is whether or not to stay the arbitration under CPLR §7503[b] which provides that 1) a petitioner may seek a stay on the ground that there was no valid agreement made to arbitrate the dispute or, 2) if there is an agreement to arbitrate, the respondent did not sufficiently comply with the terms of the agreement to be entitled to arbitrate the dispute or, 3) that the arbitration is barred by an applicable statute of limitation, as would apply if the claim by respondent had been asserted in an action in New York State court. See CPLR §7502[b] regarding the statute of limitations.

The court must first determine whether the parties' CBA provides for arbitration of the present dispute. CPLR §7503[b]. Both parties in their memorandums of law point the court to the "Liverpool" two prong test. Mtr. Of Acting Supt. Of Schools of Liverpool Cent. Sch. Dist., [*4]42 NY2d 509 (1977) as further defined in Mtr of Bd. Of Educ. Of Watertown City Sch. Dist., 93 NY2d 132 (1999). The first prong of the test is conceded by the petitioners, that is, there is no statutory, constitutional or public policy prohibiting arbitration of this grievance. The second prong, the "did-they-agree-to-arbitrate" prong, is disputed by the parties.The CBA defines a grievance as "any claimed violation of a specific provision of this agreement, or any matter which relates to employee health and safety." CBA 35.2. The respondent claims a violation of CBA 8.5 "Roll-Call Briefing Pay". The sergeants urge that they are being made to work a 15 minute period to brief the deputies they supervise and are not being paid for this period. In that the sergeants have specified the provision of the CBA from which their grievance emanates, and have clearly stated the claimed violation of this specific provision, the court concludes that there is "no substantial question whether a valid agreement was made" (CPLR §7503[a]) to arbitrate this exact dispute, and that the agreement does provide that this dispute is arbitrable.

The court rejects the petitioners' argument that the dispute is outside the CBA because it involves a "past practice". Although it may be the past practice of the county to only pay the sergeants for one 15-minute roll-call briefing, or to pay them $88 for two 15 minute roll-call briefings, such a past practice would have nothing to do with the arbitrability of the dispute.

A court confronted with a contest of this kind should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. If there is none, the issue, as a matter of law, is not arbitrable. If there is, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them." Watertown, supra, 93 NY2d at 143.

Here, Section 8.5 of the CBA provides for all members of the bargaining unit to assemble for a 15 minute briefing before their "tour of duty" (emphasis added). Although tour of duty" is not defined in the CBA, it would seem (arguendo) for the sergeants, that their tour of duty commences at the time they start supervising the deputies' briefing. The court is not ruling or making a determination on the interpretation of the contract, but merely pointing out that here the subject matter of the dispute, and the general subject matter of the CBA, have a reasonable relationship with each other.

Next the court must determine if the respondent sufficiently complied with the terms of the agreement to be entitled to arbitrate the dispute. CPLR §7503[b].

The respondent unionfiled its Step 1 grievance on May 17, 2013. The county denied the grievance on May 17, 2013. The union filed its Step 2 grievance on May 21, 2013. The county denied this appeal on May 28, 2013, the union filed its Step 3 grievance on May 30, 2013 and the county denied it on June 14, 2013. The union then filed a demand to arbitrate on July 5, 2013.

The court finds that the respondent did timely comply with the requirements and steps for making a grievance, and concludes that there is no substantial question but that the respondent sufficiently complied with the CBA to be entitled to arbitrate the dispute.

The last of the three possible grounds for the court to stay arbitration is that the arbitration is barred by an applicable statute of limitation. CPLR §7503[b]. The Petitioners appear to make the argument that the respondent failed to make a timely grievance, and so is barred from arbitrating. However, the court notes that CPLR §7502[b] confines statute of limitation claims to [*5]time limits imposed for cases in state courts. Petitioners do not specify any such claim, such as a time limit imposed by CPLR Article 2. Instead, they argue that CBA Article 35.4.5 requires that the time limits in Article 35 may not be waived, except by mutual agreement in writing. Upon review of the CBA Article 35 and, of the steps and time requirements set forth in CBA 35.2, the court concludes that the provisions do not amount to conditions precedent to arbitration, but are instead "conditions in arbitration e.g., limitations of time within which the demand for arbitration must be made, or requirements as to parties on whom or as to the manner in which service of the demand for arbitration shall be made. As would be expected, questions as to whether there has been compliance with such procedural regulations and, if not, what the consequences shall be, are for resolution by the arbitrator as incidental to the conduct of the arbitration proceeding (cites omitted)." Mtr. of County of Rockland, 51 NY2d 1, 8 (1980).

Further, the petitioners do not state in their petition which time limit set forth in CBA 35.4.5 was violated, instead they only state the conclusion that a time limit was violated, and that the parties did not agree in writing to waive such time limit. Although the court concludes that this is not a question for the court, as CBA 35.4.5 makes no condition precedent to arbitration, the court has made a review of the time line herein, and finds no violation by respondent of the time requirements of CBA 35.4.5. To the extent the petitioners may be arguing that the initial grievance was not timely because the payment for the roll call briefings had been in effect for at least the life of the current contract, the court notes that when a claim involves a payment of wages issue, generally the grievance is considered to start anew with each under-payment, and so the initial grievance was timely. In re Safeway, Inc and United Food and Commercial Workers, Local 99, 126 LA 1686 (2009).

Additionally, the petitioners assert that the arbitration should be stayed pending the determination in the federal action, since that action involves the same issue as this case, and the same or similar parties.

This argument requesting to stay arbitration on a non-permanent basis is not covered by CPLR §7503[b]. It appears to be covered under the court's general powers to stay proceedings before it under CPLR §2201.The court will deny the petitioners' request for a stay pending the federal suit. The federal suit asserts a cause of action on behalf of named plaintiffs who are both sergeants and deputies, so the parties are not the same as in the action before this court, which involves only sergeants. The plaintiffs there seek to have the stipend paid them for roll calls to be included and counted as regular pay for computation of overtime. They assert that to not count such stipend is a violation of the FLSA. The federal suit is based on a statute, while in the case at bar the dispute is one in contract. In addition, the federal issue involves calculation of overtime pay and the issue at bar involves payment for roll call briefings. Therefore, the court concludes that there is neither identity of parties, nor of issues to warrant a stay of arbitration.

Based on the foregoing, the petitioners' application for a stay of arbitration is in all respects denied. The respondent's cross petition for an order compelling arbitration is granted. The respondent's cross petition for sanctions is denied as the court concludes that the petitioners' application herein was not frivolous. However, the respondent's request for ordinary costs and disbursementsis granted.

Respondent to submit order.

W. Patrick Falvey

Acting Justice Supreme Court

Monroe County