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Questionsconcerning the prosecution of grievances and whether the compliant is grievableis for the arbitrator to resolve
Hartsdale Fire Dist. v Greenburgh UniformFirefighters Assn., Inc., Local 1586, IAFF, AFL-CIO, 55 AD3d 731
The collective bargaining agreement between the Hartsdale Fire District and theGreenburgh Uniform Firefighters Association contained a broad arbitrationclause providing for the arbitration of disputes "concerning the meaning,application or interpretation of this Agreement, which remains unresolved afterpresentation 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 theAssociation had not satisfied the procedural steps with respect to thegrievance procedure; and (3) that only a unit member, rather than theAssociation, could file a grievance and demand arbitration.
Supreme Court dismissed Hartsdale’s petition seeking a permanent stay ofarbitration and the Appellate Division affirmed the lower court’s holding.
The Appellate Division said that there was “a reasonable relationship betweenthe subject the disputes, which involves the [Association’s] grievances overthe [Hartdale’s] directives that the [Association’s] union members work andtrain in a fire-damaged firehouse before the firehouse was fully repaired, andthe general subject the collective bargaining agreement.” Further, said thecourt, the CBA does not specifically exclude from arbitration the subject thegrievances that concern public health and the safety of public employees.Accordingly, said the court, the question of the scope of the substantiveprovisions of the CBA is a contract interpretation and application reserved forthe arbitrator.
As to Hartsdale’s claim that the Association failed to comply with a conditionprecedent before demanding arbitration, the Appellate Division pointed outthat, in general, “disputes over the parties' adherence to the grievanceprocedure set forth in the parties' CBA is for the arbitrator to determine, notfor the courts.”
Finally, said the Appellate Division, Hartdale’s claim that “grievances must bepursued only by individual employees, rather than by the [Association],especially in light of the [Association’s] contention that [Hartsdale] has apast practice of hearing grievances pursued solely by the [Association], is amatter for the arbitrator to resolve.”
As to Hartsdale’s representation that only the aggrieved employee could file agrievance, in general, making a decision to file a grievance typically isviewed as vested in the employee organization and not an individual member ofthe negotiating unit. Further, the Association argued that it “owned the rightto 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 AppellateDivision said that a union member generally has no individual rights under acollective bargaining agreement that he or she can enforce against an employer.In the absence of a contract provision stating otherwise, an employee mayproceed directly against the employer only when the union fails in its duty offair representation and "In order to establish a breach of the duty offair representation, it is necessary to show that the union's refusal to demandthat the grievance go to arbitration was arbitrary, discriminatory, or in badfaith."
As to the alleged “past practice” whereby only individuals filed grievances, itis unlikely that such a practice would be viewed as a union’s abandoning orforfeiting its right to file grievances and demand arbitration with respect toalleged 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
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