County of Monroe v. Monroe County Deputy Sheriff's Ass'n

— Order 875 reversed on the law without costs and motion to stay arbitration granted. Memorandum: Supreme Court erred in denying petitioner’s application for a stay of arbitration of a grievance filed by the Monroe County Deputy Sheriffs Association. Article 36 of the parties’ collective bargaining agreement contains a grievance procedure, the final step of which provides for arbitration of "any claimed violation of a specific provision of this agreement, or any matter which relates to employee health and safety” (§ 36.2). The contract, however, expressly excludes performance evaluations from this grievance and arbitration procedure. In its demand for arbitration, respondent sought to have deleted from its member’s personnel file certain derogatory remarks, to wit, an unsatisfactory score on his performance evaluation based on his use of sick leave credits. Petitioner contends that since this grievance affects a performance evaluation, the contract excludes it from arbitration. Respondent admits that performance evaluations are not subject to arbitration, but contends that, once placed in the personnel file, any derogatory material in the evaluation becomes subject to arbitration. The issue whether the dispute is subject to arbitration is for the courts rather than the arbitrator to determine (see, Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 NY2d 521, 525, rearg denied 47 NY2d 952). Since the agreement does not clearly and unequivocally state that the parties have agreed to refer this grievance to arbitration, a stay of arbitration must be granted (see, Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 515; Matter of County of Broome [Truesdell] 122 AD2d 314, 315). All concur, except Dillon, P. J., and Green, J., who dissent and vote to affirm, in the following memorandum.