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Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve

Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve
Matter of Hartsdale Fire Dist. v Greenburgh Uniform Firefighters Assn., Inc., Local 1586, IAFF, AFL-CIO, 2008 NY Slip Op 07911, decided on October 14, 2008, Appellate Division, Second Department

The collective bargaining agreement between the Hartsdale Fire District and the Greenburgh Uniform Firefighters Association contained a broad arbitration clause providing for the arbitration of disputes "concerning the meaning, application or interpretation of this Agreement, which remains unresolved after presentation to, and processing through the grievance procedure."

Hartsdale resisted the Association?s demand for arbitration, contending that (a) the underlying grievance was not subject to arbitration; that the Association had not satisfied the procedural steps with respect to the grievance procedure; and (3) that only a unit member, rather than the Association, could file a grievance and demand arbitration.

Supreme Court dismissed Hartsdale?s petition seeking a permanent stay of arbitration and the Appellate Division affirmed the lower court?s holding.

The Appellate Division said that there was ?a reasonable relationship between the subject matter of the disputes, which involves the [Association?s] grievances over the [Hartdale?s] directives that the [Association?s] union members work and train in a fire-damaged firehouse before the firehouse was fully repaired, and the general subject matter of the collective bargaining agreement.? Further, said the court, the CBA does not specifically exclude from arbitration the subject matter of the grievances that concern public health and the safety of public employees. Accordingly, said the court, the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator.

As to Hartsdale?s claim that the Association failed to comply with a condition precedent before demanding arbitration, the Appellate Division pointed out that, in general, ?disputes over the parties' adherence to the grievance procedure set forth in the parties' CBA is for the arbitrator to determine, not for the courts.?

Finally, said the Appellate Division, Hartdale?s claim that ?grievances must be pursued only by individual employees, rather than by the [Association], especially in light of the [Association?s] contention that [Hartsdale] has a past practice of hearing grievances pursued solely by the [Association], is a matter for the arbitrator to resolve.?

As to Hartsdale?s representation that only the aggrieved employee could file a grievance, in general, making a decision to file a grievance typically is viewed as vested in the employee organization and not an individual member of the negotiating unit. Further, the Association argued that it ?owned the right to go to arbitration? which is the traditional view in such situations.

In Hickey v Hempstead Union Free School District, 36 A.D.3d 760, the Appellate Division said that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer. In the absence of a contract provision stating otherwise, an employee may proceed directly against the employer only when the union fails in its duty of fair representation and "In order to establish a breach of the duty of fair representation, it is necessary to show that the union's refusal to demand that the grievance go to arbitration was arbitrary, discriminatory, or in bad faith."

As to the alleged ?past practice? whereby only individuals filed grievances, it is unlikely that such a practice would be viewed as a union?s abandoning or forfeiting its right to file grievances and demand arbitration with respect to alleged violations of the collective bargaining agreement.

The full text of the Hartsdale decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07903.htm

The full text of the Hickey decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm

Full post as published by New York Public Personnel Law on October 23, 2008 (boomark / email).