        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

309
CA 12-01766
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF ARBITRATION BETWEEN
ONTARIO COUNTY AND ONTARIO COUNTY SHERIFF,
PETITIONERS-APPELLANTS,

                    AND                           MEMORANDUM AND ORDER

ONTARIO COUNTY SHERIFF’S UNIT 7850-01,
CSEA, LOCAL 1000, AFSCME, AFL-CIO,
RESPONDENT-RESPONDENT.


JOHN W. PARK, COUNTY ATTORNEY, CANANDAIGUA (WENDY R. WELCH OF
COUNSEL), FOR PETITIONERS-APPELLANTS.

CHAMBERLAIN, D’AMANDA, OPPENHEIMER & GREENFIELD, LLP, ROCHESTER
(ROBERT G. MCCARTHY OF COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County
(William F. Kocher, A.J.), entered June 22, 2012 in a proceeding
pursuant to CPLR article 75. The order denied the petition to stay
arbitration and granted respondent’s cross motion to compel
arbitration.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioners commenced this proceeding to stay
arbitration (see CPLR 7503 [b]), and respondent “cross-moved” to
compel arbitration with respect to grievances allegedly involving a
provision of the parties’ collective bargaining agreement (CBA) (see
CPLR 7503 [a]). Pursuant to the CBA, disputes over the meaning or
application of that agreement were required to be submitted first
through a grievance process, but could thereafter be submitted to
arbitration if the employee was “not satisfied” with the result
obtained through that process. Respondent filed grievances on behalf
of two correction officers whose request for a shift exchange was
denied. Respondent asserted that the denial “[v]iolated or
[i]nvolved” section 3.11 of the CBA, which provides that “time
exchanged between employees shall not be done if it results in a
requirement . . . that overtime be paid,” and respondent requested
that the shift exchanges be allowed. The grievances also involved the
application of a Shift Swapping Policy, which was not contained in the
CBA, between respondent and petitioner Ontario County that outlined
the specific procedures an employee must follow when exchanging a
shift with a fellow employee. The Shift Swapping Policy states with
                                 -2-                           309
                                                         CA 12-01766

respect to shift swapping on holidays that the person working the
holiday receives the holiday pay “[t]o be consistent with contract
language.” The grievances were denied, and respondent informed
petitioners of its intent to seek arbitration. As noted, petitioners
filed a petition to stay arbitration, and respondent “cross-moved” to
compel arbitration. Supreme Court denied the petition and granted the
cross motion, and we affirm.

     “A grievance may be submitted to arbitration only where the
parties agree to arbitrate that kind of dispute, and where it is
lawful for them to do so” (Matter of City of Johnstown [Johnstown
Police Benevolent Assn.], 99 NY2d 273, 278; see Matter of Bd. of Educ.
of Watertown City Sch. Dist. [Watertown Educ. Assn.], 93 NY2d 132,
137-142). Here, the parties do not challenge the lawfulness of
arbitrating the instant dispute and, instead, petitioners contend that
there is no valid agreement to arbitrate the grievances at issue
inasmuch as the CBA did not contemplate shift exchanges. We reject
that contention.

     In determining whether the parties agreed to arbitrate the
dispute at issue, “[o]ur review . . . is limited to the language of
the grievance and the demand for arbitration, as well as to the
reasonable inferences that may be drawn therefrom” (Matter of Niagara
Frontier Transp. Auth. v Niagara Frontier Transp. Auth. Superior
Officers Assn., 71 AD3d 1389, 1390, lv denied 14 NY3d 712). “Where,
as here, there is a broad arbitration clause and a ‘reasonable
relationship’ between the subject matter of the dispute and the
general subject matter of the parties’ [CBA], 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’ ” (Matter of Van Scoy [Holder], 265 AD2d 806, 807-
808, quoting Matter of Bd. of Educ. of Watertown City Sch. Dist., 93
NY2d at 143; see Matter of Town of Cheektowaga [Cheektowaga Police
Club, Inc.], 59 AD3d 993, 994). We therefore conclude that the court
properly determined that the parties agreed to arbitrate the instant
dispute. In light of our determination, we do not address
petitioners’ remaining contentions.




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
