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Collective bargaining agreements must set out in clear and unmistakable language any waiving of an employee's right to a judicial forum

Collective bargaining agreements must set out in clear and unmistakable language any waiving of an employee's right to a judicial forum
Ambrosino v Village of Bronxville, 2009 NY Slip Op 00318, decided on January 20, 2009, Appellate Division, Second Department

Joseph Ambrosino sued the Village of Bronxville for damages based on alleged unlawful discrimination in employment on the basis of disability and for ?breach of contract.?

Supreme Court dismissed Ambrosino?s petition ?for failure to exhaust his administrative remedies.?

The Appellate Division modified the lower court?s ruling, holding that Supreme Court was correct with respect Ambrosino?s claims based on ?breach of contract,? but reinstated his petition with respect to his allegations of unlawful discrimination in employment.

The court explained that with respect to ?breach of contract,? the collective bargaining agreement between the Village and Ambrosino?s union, the International Brotherhood of Teamsters Local 456, provided for a three-step grievance procedure.

Local 456 filed a grievance on behalf of Ambrosino. The grievance was denied at both the first and second step.

Ambrosino, however, failed to proceed to the third step of the grievance procedure -- nonbinding or advisory arbitration. He, instead, initiated a lawsuit against the Village setting forth a cause of action alleging employment discrimination based upon disability and a cause of action alleging breach of contract.

The Appellate Division said that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to that agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract

As Ambrosino, in the second cause of action, challenges his termination by alleging that it was without "just cause," and thus in violation of the collective bargaining agreement, that dispute was covered by the CBA, and he should have completed the three-step grievance procedure. Accordingly, by failing to proceed to step three of the grievance procedure, he failed to exhaust his administrative remedies, and his ?breach of contract? claim was properly dismissed on this basis by Supreme Court.

However, said the court, Supreme Court was incorrect in dismissing that portion of his petition that alleged employment discrimination within the meaning of the State?s Human Rights Law (Executive Law §§ 292[2]; 296[1][a]). In such a situation ?an employee does not forfeit his or her right to a judicial forum for a claimed discriminatory discharge? unless the collective bargaining agreement sets out a waiver of the employee's right to a judicial forum in "clear and unmistakable" language.

Finding that the controlling collective bargaining agreement did not contain any provisions regarding the resolution of disputes involving employment discrimination, ?let alone any clear and unmistakable language waiving an employee's right to a judicial forum for such claims,? the Appellate Division ruled that Supreme Court erred in dismissing Ambrosino?s discrimination allegations on the theory that he had ?failed to exhaust his administrative remedies.?

The full text of the decision is on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00318.htm

Full post as published by New York Public Personnel Law on January 30, 2009 (boomark / email).