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

1012
CA 15-00402
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF ARBITRATION BETWEEN
MONROE COUNTY AND MONROE COUNTY SHERIFF’S
OFFICE, PETITIONERS-RESPONDENTS-APPELLANTS,

                    AND                           MEMORANDUM AND ORDER

MONROE COUNTY LAW ENFORCEMENT ASSOCIATION,
RESPONDENT-PETITIONER-RESPONDENT.
(APPEAL NO. 2.)


HARRIS BEACH, PLLC, PITTSFORD (EDWARD TREVVETT OF COUNSEL), FOR
PETITIONERS-RESPONDENTS-APPELLANTS.

BLITMAN & KING LLP, ROCHESTER (BRIAN J. LACLAIR OF COUNSEL), FOR
RESPONDENT-PETITIONER-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (W.
Patrick Falvey, A.J.), entered May 1, 2014. The judgment denied the
petition to stay arbitration and granted the cross petition to compel
arbitration.

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

     Memorandum: Petitioners-respondents (petitioners) employ, in the
Court Security Bureau, persons in the positions of Deputy Sheriff
Court Security Sergeant (Sergeants) and Deputy Sheriff Court Security
Deputy (Deputies). Petitioners and respondent-petitioner, Monroe
County Law Enforcement Association (Union), are parties to a
collective bargaining agreement (CBA) that, inter alia, sets forth the
terms and conditions of employment for the Deputies and Sergeants.

     A dispute arose concerning the compensation owed to Sergeants and
Deputies for their required attendance at roll call briefings. In
2010, 13 current or former Sergeants and Deputies commenced an action
against petitioners in the United States District Court for the
Western District of New York (Crespo v County of Monroe, New York,
2015 WL 2406112 [WD NY]), alleging, inter alia, that petitioners
violated the Fair Labor Standards Act ([FLSA] 29 USC § 201 et seq.) in
compensating them for attending or conducting roll call briefings.
Thereafter, in 2013, the Union filed a grievance alleging that
petitioners violated the CBA provisions governing compensation for
roll call briefings. After petitioners denied the grievance through
the stages provided in the CBA, the Union demanded arbitration.
                                 -2-                          1012
                                                         CA 15-00402

     Supreme Court properly denied the petition to stay arbitration
and granted the Union’s cross petition to compel arbitration.
Contrary to petitioners’ contention, the Union did not waive its right
to arbitrate its grievance under the CBA when certain of its members
commenced an action in federal court under the FLSA (see Barrentine v
Arkansas-Best Frgt. Sys., Inc., 450 US 728, 745-746; see generally
Sherrill v Grayco Bldrs., 64 NY2d 261, 272-273). “[T]he claims
asserted in [the federal] action are entirely separate from those
raised in the arbitration proceeding, and distinct remedies are sought
in each” (Radzievsky v Macmillan, Inc., 170 AD2d 400, 400). The
Union, moreover, is not a party to the federal action, which seeks
enforcement of the plaintiffs’ rights as individual employees
protected by the FLSA rather than as Union members subject to the CBA
(see Barrentine, 450 US at 745-746; Polanco v Brookdale Hosp. Med.
Ctr., 819 F Supp 2d 129, 133 [ED NY]).

     Contrary to petitioners’ further contention, arbitration is not
barred by res judicata inasmuch as there is no identity of parties or
issues (see Tuper v Tuper, 34 AD3d 1280, 1281; O’Riordan v Suffolk
Ch., Local No. 852, Civ. Serv. Empls. Assn., 89 AD2d 558, 558-559,
appeal dismissed 57 NY2d 956), nor in any event has there been a final
determination in the federal action (see Landau, P.C. v LaRossa,
Mitchell & Ross, 11 NY3d 8, 13; Matter of LaSonde v Seabrook, 89 AD3d
132, 140, lv denied 18 NY3d 911).




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
