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Unit member has limited rights in processing his or her grievance to arbitration

Unit member has limited rights in processing his or her grievance to arbitration
Rine v Higgins, 244 A.D.2d 963

After his union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 264, demanded arbitration challenging Rine?s termination from his position as an Erie deputy sheriff, Rine asked a State Supreme Court justice to issue a declaratory judgment establishing his right to choose his own attorney to represent him in a grievance brought by the Union arising out of his discharge.

Rine also asked the court to direct the Union to pay his attorneys? fees with respect to such representation and to enjoin the Union from selecting its own counsel to appear in the arbitration. The justice decided that Rine could have his own personal counsel present at all proceedings in the arbitration; that the extent of the participation of plaintiff?s counsel at the arbitration ?shall be determined by the arbitrator?; and that Rine could claim compensation for attorneys? fees at a later date.

The Appellate Division disagreed with this determination. After considering a number of technical issues, it said that ?on the merits ... [the Supreme Court justice] should not have permitted the arbitrator to determine the extent of the participation of [Rine?s] own attorney in the arbitration proceeding.?

The Appellate Division observed that Rine ?is not a party to the arbitration and has no independent right to participate. ?A union member has no individual rights under a collective bargaining agreement which he can enforce against his employer except through the union,? citing Berlyn v. Board of Education, 80 AD2d 572.

According to the decision, the collective bargaining agreement specifically provides that ?only ... the Union? may seek arbitration. Furthermore, said the Court, as there was no agreement between the Union and Rine obligating the Union to pay Rine?s attorneys? fees, the lower court was incorrect in indicating that he claim such payments at a later time.

Another element in the arbitration process is the unit member right to demand arbitration in the event the union refuses to submit the matter to arbitration. This question was considered by the court in DiBenedetto v Ryan 208 AD2d 796.

The Appellate Division said that DiBenedetto did not have a right to filed a "demand for arbitration" if the union declined to seek to arbitrate the grievance. The Court said that the processing of a contract grievance was governed by the provision in the collective bargaining agreement and if the agreement does not give unit members the right to demand arbitration, only the union had the right to seek to arbitrate the matter. In other words, the fact that DiBenedetto was unhappy because consideration of his complaints was terminated at a ?pre-arbitration step? in the grievance process did not allow him to ask the courts for an order compelling arbitration.

DiBenedetto, however, could exercise an independent right to demand arbitration if he was able to demonstrate that the union violated its duty of fair representation when it failed to refer his grievances to arbitration. Here the Court decided that the union's decision not to submit DiBenedetto's grievances to arbitration did not constitute "the arbitrary, discriminatory, or bad-faith behavior necessary to constitute a breach of the union of its duty of fair representation of [DiBenedetto]." Accordingly, said the Court, there were no alternative means to seek review of his complaints available to him.

The Appellate Division cited a number of cases, including Comack Union Free School District v Ambach, 70 NY2d 501, in support of its view that absent a showing of bad faith, a union's "decision to conclude the grievance process short of the final step allowed by the contract or law is binding on the employee and precludes resort to additional remedies."
This decision illustrates the rule that unless the employee can prove that the union's decision not to process a grievance, or appeal an adverse grievance determination, constitutes a breach of its duty of fair representation, he or she has no independent legal right to prosecute the matter through the courts.

Full post as published by New York Public Personnel Law on September 18, 2009 (boomark / email).