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FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020
STATE OF NEW YORK
SUPREME COURT : COUNTY OF COLUMBIA
In the Matter of a Petition to Stay Arbitration
Between
CITY OF HUDSON,
Petitioner, AMENDED
VERIFIED PETITION
-against- Index No. E012020015667
HUDSON POLICE, Local 3979, Council 82,
Respondent.
For ReliefPursuant to Article 75 of the Civil
Practice Law and Rules.
("Petitioner"
Petitioner, the City of Hudson or "City"), by its attorneys GOLDBERG
SEGALLA (Jonathan M. Bernstein, Esq., and Matthew C. Van Vessem, Esq., of counsel), as and
("Respondent"
for its Petition against Respondent, Hudson Police, Local 3979, Council 82 or
"Union"), alleges as follows:
PARTIES
1. Petitioner City is a municipal corporation organized and existing pursuant to the
laws of the State of New York, and an employer within the meaning of Article 14 of the Civil
Service Law.
2. Respondent Union is an employee organization within the meaning of Article 14
"exclusive"
of the Civil Service Law, and is the bargaining agent for certain employees of the
City.
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COLLECTIVE BARGAINING AGREEMENT
3. The City and the Union are parties to a collective bargaining agreeiliciit ("CBA"),
which has an effective date of January 1, 2016 to December 31, 2019. That CBA was extended
by a Memorandum of Agreement, dated December 18, 2019, for a term to run from January 1,
2020 to December 31, 2023.
4. In the grievance at-issue in this proceeding, the Union claims the City violated
Section 9.3.1 of the CBA between the parties when one of the City's employees was informed he
was ineligible for participation in a 12 month final average salary retirement benefit provided by
the New York State and Local Police and Fire Retirement System ("PFRS").
FACTUAL BACKGROUND
5. On or about February 24, 2020, Anthony Moon, a lieutenant in the City's police
department, and the grievant in this matter, filed a grievance with the City, in which he claimed,
in pertinent part, that he sought a calculation of his retirement benefit from the PFRS. He
learned that his pension benefit from PFRS was based on a three-year average of his earnings,
rather than on the basis of his twelve month final average salary. Lt. Moon is Tier II employee
who was hired on or about June 23, 1994.
6. Moon claimed that he was entitled to a greater benefit from PFRS based on
alleged applicable language in the CBA.
7. During the grievance procedure, which is set forth in the CBA, the City provided
written responses to the grievance. It denied the grievance on the merits, including that the
demand was not substantively arbitrable and that the contractüal claim was void for public
policy.
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8. By letter dated April 14, 2020, the Union filed a demand for arbitration
concerning the at-issue grievance, which was received by the City on or about April 16, 2020.
9. At the time of filing the demand for arbitration, the State of New York was in a
declared State of Emergency, which, among other things, resulted in various executive and
administrative orders tolling applicable statutes of limitations and otherwise precluding the filing
of papers with the Courts, either electronically or in person, concerning new matters and/or
proceedings not deemed essential by the Courts.
10. This proceeding is timely commenced in accordañee with and pursuant to existing
executive and related administrative orders regarding the commencement of new, non-essential
court proceedings and the CPLR.
11. For reasons set forth herein, the Union's Grievance is not arbitrable and must be
stayed permanently.
12. The City has not waived its right to challenge the arbitrability of the issues raised
in the underlying grievances at any time prior to the filing of this Petition.
13. This Court is empowered, pursuant to CPLR § 7503, to stay arbitration where,
among other reasons, law or public policy bars arbitration of the dispute and/or where there is no
binding agreeinent between the parties to arbitrate the dispute.
14. First, we submit that public policy and the law operate to stay arbitration of this
grievance. It is undisputed that Moon seeks the City to provide certain retirement benefits to
him, which benefits are set by law and determined by the PFRS.
15. Inasmuch as the Union cannot force the City to bargain for such a benefit and
such a benefit is not a term and condition of employment, the instant grievance is void for public
policy and seeks benefits which are prohibited subjects of bargaining.
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16. In addition, the Union seeks to arbitrate a grievance for a claim for a benefit that
is outside the scope of collective bargaining in the State of New York.
17. The parties have not agreed to arbitrate disputes alleged by any individual
regarding benefits which are provided by the PFRS.
AS AND FOR A FIRST CLAIM FOR RELIEF
18. The City repeats and re-alleges each and every allegation set forth above as if
fully and specifically recited hereafter.
19. This Court is empowered, pursuant to CPLR § 7503, to stay arbitration where a
statute, decisional law, or public policy precludes the matter from being referred to arbitration.
20. The Taylor Law explicitly prohibits the negotiation of "any benefits provided by
or to be provided by a public retirement system, or payments to a fund or insurer to provide an
beneficiaries."
income for retirees, or payment to retirees or their N.Y. Civ. Serv. Law § 201(4).
21. N.Y. Civil Service Law § 201 (4), a provision of the Taylor Law, expressly
differentiates between retirement matters and all other issues subject to collective bargaining by
excluding retirement benefits from the definition of terms and conditions of employment subject
employment'
to collective bargaining. It states: "'terms and conditions of means salaries, wages,
hours and other terms and conditions of employment provided, however, that such term shall not
include any benefits provided by or to be provided by a public retirement system, or payments to
a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries.
No such retireiiient benefits shall be negotiated pursuant to this article, and any benefits so
void"
negotiated shall be (Civil Service Law § 201 [4] [emphasis added]).
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22. The Union demands in the at-issue grievance that the City mhmee the retirement
benefits to which the grievance is entitled under law and make payments to the PFRS and/or
employee, which is categorically prohibited by the Taylor Law. N.Y. Civ. Serv. Law § 201(4).
23. The Union seeks to arbitrate a grievance concerning a prohibited subject of
bargaining, and it also demands that the City make payment to the PFRS or the employee for
alleged "damages".
24. The Union's demand to arbitrate must be stayed since it seems to command
through grievance arbitration that a public employer must alter benefits payable by a public
retirement system and further issue payments to an individual in retirement.
25. The grievance herein seeks relief, which is prohibited under the law and the
provision alleged at issue is otherwise void for public policy.
26. Under this statutory mandate, pension benefits are different from other terms and
conditions of employment, which may be negotiated in a collective bargaining agreement.
Unlike other benefits, public employers are prohibited from negotiating and granting retirement
benefits in a collective bargaining agreeiñent that are not expressly provided under state law.
27. The Legislature explicitly stated that the benefit at the heart of this dispute--the
extension of the 12-month final average salary benefit for Tier II employees--was not a proper
subject of interest arbitration (L 1999, ch 638; Retirement and Social Security Law § 443 [f-1]).
28. The at-issue grievance invokes a prohibited subject of bargaining under the
Taylor Law and simply may not be arbitrated under the CBA.
29. A stay of arbitration is thus warranted in this matter, and the Union cannot be
permitted to bring this alleged grievance to arbitration.
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30. Given the foregoing, it is respectfully submitted that this Court must stay
arbitration peiinañeiitly of the Union's February 24, 2020 grievance regarding Moon.
AS AND FOR A SECOND CLAIM FOR RELIEF
31. The City repeats and re-alleges each and every allegation set forth above as if
fully and specifically recited hereafter.
32. A Demand for Arbitration must be stayed if there is not a valid agreemeiit to
arbitrate between the parties. See CPLR §7503(b).
33. If the Court determines that the parties have a valid agreement to arbitrate that is
of limited or restricted scope, and the particular dispute sought to be arbitrated is outside that
scope, the Court must stay the arbitration. County of Rockland, supra, 51 N.Y.2d at 7; Acting
Super. of Schools of Liverpool Central School District v. United Liverpool Faculty Ass'n, 42
N.Y.2d 509, 512 (1977).
34. Article 26, section 26.1, of the CBA defines a grievance as "any disputed matter
Agreeinciit."
pertaining to the meaning, interpretation and/or application of the terms of this
Nowhere in the CBA's definition of a grievance does it make matters barred by law from
negotiation pursuant to the Taylor Law the subject of a grievance.
35. The parties never agreed to arbitrate any issue or claims raised regarding the
terms at issue here, which are not permitted by law. Simply stated, the parties never agreed to
arbitrate over a term in a contract that is barred as a matter of law.
36. Permitting grievance arbitration of a reilieiiiciit benefit a city could not have
lawfully agreed to provide in the collective bargaining agreeinciit circumvents the fundamental
parties'
purpose of grievance arbitration--to enforce the terms and conditions of the collective
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bargaining agreement--and allows the unions to use this procedure to obtain a benefit they could
not have negotiated.
37. As such, given the express limitations in the CBA, the Union cannot file a
grievance concerning this alleged violation of the CBA.
38. This Court is empowered, pursuant to CPLR § 7503, to stay arbitration where
there is no bhdhg agreeinent between the parties to arbitrate the subject matter in dispute.
39. Given the foregoing, this Petition should be granted permanently staying
arbitration of the underlying grievance.
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WHEREFORE, for the foregoing reasons, the Petitioner requests that this Court
pou11anently stay arbitration of the Union's Demand for Arbitration dated April 14, 2020
concerning a grievance filed on or about February 24, 2020, pursuant to CPLR § 7503 and order
such further, other, and different relief the Court deems just and proper.
DATED: Albany, New York
May 28, 2020
GOLDBERG SEGALLA
By:
Matthew C. Van Vessem, Esq.
Jonathan M. Bernstein, Esq.
GOLDBERG SEGALLA
Attorneys for Petitioner
City of Hudson
P.O. Box 880
Buffalo, New York 14201
Telephone: 716-566-5476
mvanvessem@eoldbereseealla.com
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
MATTHEW C. VAN VESSEM, being duly sworn, deposes and says:
I am counsel to the City of Hudson; I have read the foregoing Amended Petition to Stay
Arbitration and know the contents thereof; that based on review of records and papers of the
City; and based upon information and belief, I believe that the factual statements are true.
I further say that the reason this verification is made by me and not by Petitioner, is that
said party is a municipality.
MATTHEW C. VAN VESSEM
Sworn to before me this
28th day of May 2020
Notary Public
Katherine Lonsbery
Notary Public, State of New York
Qualified in Erie County
My commission expires 12/27/21
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FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 STATE OF NEW YORK SUPREME COURT : COUNTY OF COLUMBIA In the Matter of a Petition to Stay Arbitration Between CITY OF HUDSON, Petitioner, AMENDED VERIFIED PETITION -against- Index No. E012020015667 HUDSON POLICE, Local 3979, Council 82, Respondent. For ReliefPursuant to Article 75 of the Civil Practice Law and Rules. ("Petitioner" Petitioner, the City of Hudson or "City"), by its attorneys GOLDBERG SEGALLA (Jonathan M. Bernstein, Esq., and Matthew C. Van Vessem, Esq., of counsel), as and ("Respondent" for its Petition against Respondent, Hudson Police, Local 3979, Council 82 or "Union"), alleges as follows: PARTIES 1. Petitioner City is a municipal corporation organized and existing pursuant to the laws of the State of New York, and an employer within the meaning of Article 14 of the Civil Service Law. 2. Respondent Union is an employee organization within the meaning of Article 14 "exclusive" of the Civil Service Law, and is the bargaining agent for certain employees of the City. 26506613.v1 FILED 6/5/2020 1 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 COLLECTIVE BARGAINING AGREEMENT 3. The City and the Union are parties to a collective bargaining agreeiliciit ("CBA"), which has an effective date of January 1, 2016 to December 31, 2019. That CBA was extended by a Memorandum of Agreement, dated December 18, 2019, for a term to run from January 1, 2020 to December 31, 2023. 4. In the grievance at-issue in this proceeding, the Union claims the City violated Section 9.3.1 of the CBA between the parties when one of the City's employees was informed he was ineligible for participation in a 12 month final average salary retirement benefit provided by the New York State and Local Police and Fire Retirement System ("PFRS"). FACTUAL BACKGROUND 5. On or about February 24, 2020, Anthony Moon, a lieutenant in the City's police department, and the grievant in this matter, filed a grievance with the City, in which he claimed, in pertinent part, that he sought a calculation of his retirement benefit from the PFRS. He learned that his pension benefit from PFRS was based on a three-year average of his earnings, rather than on the basis of his twelve month final average salary. Lt. Moon is Tier II employee who was hired on or about June 23, 1994. 6. Moon claimed that he was entitled to a greater benefit from PFRS based on alleged applicable language in the CBA. 7. During the grievance procedure, which is set forth in the CBA, the City provided written responses to the grievance. It denied the grievance on the merits, including that the demand was not substantively arbitrable and that the contractüal claim was void for public policy. 26506613.vt 2 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 8. By letter dated April 14, 2020, the Union filed a demand for arbitration concerning the at-issue grievance, which was received by the City on or about April 16, 2020. 9. At the time of filing the demand for arbitration, the State of New York was in a declared State of Emergency, which, among other things, resulted in various executive and administrative orders tolling applicable statutes of limitations and otherwise precluding the filing of papers with the Courts, either electronically or in person, concerning new matters and/or proceedings not deemed essential by the Courts. 10. This proceeding is timely commenced in accordañee with and pursuant to existing executive and related administrative orders regarding the commencement of new, non-essential court proceedings and the CPLR. 11. For reasons set forth herein, the Union's Grievance is not arbitrable and must be stayed permanently. 12. The City has not waived its right to challenge the arbitrability of the issues raised in the underlying grievances at any time prior to the filing of this Petition. 13. This Court is empowered, pursuant to CPLR § 7503, to stay arbitration where, among other reasons, law or public policy bars arbitration of the dispute and/or where there is no binding agreeinent between the parties to arbitrate the dispute. 14. First, we submit that public policy and the law operate to stay arbitration of this grievance. It is undisputed that Moon seeks the City to provide certain retirement benefits to him, which benefits are set by law and determined by the PFRS. 15. Inasmuch as the Union cannot force the City to bargain for such a benefit and such a benefit is not a term and condition of employment, the instant grievance is void for public policy and seeks benefits which are prohibited subjects of bargaining. 26506613.vt 2 3 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 16. In addition, the Union seeks to arbitrate a grievance for a claim for a benefit that is outside the scope of collective bargaining in the State of New York. 17. The parties have not agreed to arbitrate disputes alleged by any individual regarding benefits which are provided by the PFRS. AS AND FOR A FIRST CLAIM FOR RELIEF 18. The City repeats and re-alleges each and every allegation set forth above as if fully and specifically recited hereafter. 19. This Court is empowered, pursuant to CPLR § 7503, to stay arbitration where a statute, decisional law, or public policy precludes the matter from being referred to arbitration. 20. The Taylor Law explicitly prohibits the negotiation of "any benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an beneficiaries." income for retirees, or payment to retirees or their N.Y. Civ. Serv. Law § 201(4). 21. N.Y. Civil Service Law § 201 (4), a provision of the Taylor Law, expressly differentiates between retirement matters and all other issues subject to collective bargaining by excluding retirement benefits from the definition of terms and conditions of employment subject employment' to collective bargaining. It states: "'terms and conditions of means salaries, wages, hours and other terms and conditions of employment provided, however, that such term shall not include any benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries. No such retireiiient benefits shall be negotiated pursuant to this article, and any benefits so void" negotiated shall be (Civil Service Law § 201 [4] [emphasis added]). 26506613.vt 3 4 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 22. The Union demands in the at-issue grievance that the City mhmee the retirement benefits to which the grievance is entitled under law and make payments to the PFRS and/or employee, which is categorically prohibited by the Taylor Law. N.Y. Civ. Serv. Law § 201(4). 23. The Union seeks to arbitrate a grievance concerning a prohibited subject of bargaining, and it also demands that the City make payment to the PFRS or the employee for alleged "damages". 24. The Union's demand to arbitrate must be stayed since it seems to command through grievance arbitration that a public employer must alter benefits payable by a public retirement system and further issue payments to an individual in retirement. 25. The grievance herein seeks relief, which is prohibited under the law and the provision alleged at issue is otherwise void for public policy. 26. Under this statutory mandate, pension benefits are different from other terms and conditions of employment, which may be negotiated in a collective bargaining agreement. Unlike other benefits, public employers are prohibited from negotiating and granting retirement benefits in a collective bargaining agreeiñent that are not expressly provided under state law. 27. The Legislature explicitly stated that the benefit at the heart of this dispute--the extension of the 12-month final average salary benefit for Tier II employees--was not a proper subject of interest arbitration (L 1999, ch 638; Retirement and Social Security Law § 443 [f-1]). 28. The at-issue grievance invokes a prohibited subject of bargaining under the Taylor Law and simply may not be arbitrated under the CBA. 29. A stay of arbitration is thus warranted in this matter, and the Union cannot be permitted to bring this alleged grievance to arbitration. 26506613.vt 4 5 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 30. Given the foregoing, it is respectfully submitted that this Court must stay arbitration peiinañeiitly of the Union's February 24, 2020 grievance regarding Moon. AS AND FOR A SECOND CLAIM FOR RELIEF 31. The City repeats and re-alleges each and every allegation set forth above as if fully and specifically recited hereafter. 32. A Demand for Arbitration must be stayed if there is not a valid agreemeiit to arbitrate between the parties. See CPLR §7503(b). 33. If the Court determines that the parties have a valid agreement to arbitrate that is of limited or restricted scope, and the particular dispute sought to be arbitrated is outside that scope, the Court must stay the arbitration. County of Rockland, supra, 51 N.Y.2d at 7; Acting Super. of Schools of Liverpool Central School District v. United Liverpool Faculty Ass'n, 42 N.Y.2d 509, 512 (1977). 34. Article 26, section 26.1, of the CBA defines a grievance as "any disputed matter Agreeinciit." pertaining to the meaning, interpretation and/or application of the terms of this Nowhere in the CBA's definition of a grievance does it make matters barred by law from negotiation pursuant to the Taylor Law the subject of a grievance. 35. The parties never agreed to arbitrate any issue or claims raised regarding the terms at issue here, which are not permitted by law. Simply stated, the parties never agreed to arbitrate over a term in a contract that is barred as a matter of law. 36. Permitting grievance arbitration of a reilieiiiciit benefit a city could not have lawfully agreed to provide in the collective bargaining agreeinciit circumvents the fundamental parties' purpose of grievance arbitration--to enforce the terms and conditions of the collective 26506613.vt 5 6 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 bargaining agreement--and allows the unions to use this procedure to obtain a benefit they could not have negotiated. 37. As such, given the express limitations in the CBA, the Union cannot file a grievance concerning this alleged violation of the CBA. 38. This Court is empowered, pursuant to CPLR § 7503, to stay arbitration where there is no bhdhg agreeinent between the parties to arbitrate the subject matter in dispute. 39. Given the foregoing, this Petition should be granted permanently staying arbitration of the underlying grievance. 26506613.vt 7 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 WHEREFORE, for the foregoing reasons, the Petitioner requests that this Court pou11anently stay arbitration of the Union's Demand for Arbitration dated April 14, 2020 concerning a grievance filed on or about February 24, 2020, pursuant to CPLR § 7503 and order such further, other, and different relief the Court deems just and proper. DATED: Albany, New York May 28, 2020 GOLDBERG SEGALLA By: Matthew C. Van Vessem, Esq. Jonathan M. Bernstein, Esq. GOLDBERG SEGALLA Attorneys for Petitioner City of Hudson P.O. Box 880 Buffalo, New York 14201 Telephone: 716-566-5476 mvanvessem@eoldbereseealla.com 26506613.vl 7 8 of 9 FILED: COLUMBIA COUNTY CLERK 06/05/2020 12:02 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/05/2020 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF ERIE ) MATTHEW C. VAN VESSEM, being duly sworn, deposes and says: I am counsel to the City of Hudson; I have read the foregoing Amended Petition to Stay Arbitration and know the contents thereof; that based on review of records and papers of the City; and based upon information and belief, I believe that the factual statements are true. I further say that the reason this verification is made by me and not by Petitioner, is that said party is a municipality. MATTHEW C. VAN VESSEM Sworn to before me this 28th day of May 2020 Notary Public Katherine Lonsbery Notary Public, State of New York Qualified in Erie County My commission expires 12/27/21 26506613.vl 9 of 9