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August 16, 2010

County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance

County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance procedure
Vaillancourt v Putnam County, 250 A.D.2d 617

Grievance procedures typically provide for a series of steps ultimately leading to arbitration. Pre-arbitration determinations are made by the employer’s designated representative, which may be a hearing officer or a panel.

Typically the appointing authority accepts and implements the findings of its designated representative. But what happens if the employee’s grievance is sustained by the employer’s designated representative, but employer refuses to implement it? This somewhat unusual circumstance is examined in the Vaillancourt case.

Patricia Vaillancourt filed a grievance after her employer, Putnam County, refused to grant her a lateral transfer from the County Department of Mental Hygiene to the County Department of Social Services.

The County Grievance Committee ruled in her favor at Step III of a five-step grievance procedure. But the Commissioner of the Department of Social Services refused to implement the Committee’s decision. When the County Executive refused to take action implementing the decision, Vaillancourt’s union sued.

Initially, the union lost. A State Supreme Court justice dismissed the union’s petition, observing that the union never took advantage of the fifth step of the grievance procedure -- proceeding to arbitration. The Supreme Court found that this constituted a failure to exhaust the available “administrative remedy.”

On appeal the Appellate Division reversed the lower court’s ruling. It said that the collective bargaining agreement provided for a “Step 4” appeal to the County Executive in the event the Grievance Committee dismissed the grievance. In contrast, the Court noted, “the agreement did not afford the County the same right in the event that the Committee sustained [Vaillancourt’s] grievance.”

Since the Grievance Committee sustained Vaillancourt’s grievance, the court concluded that this had been the final resolution of the grievance. The Appellate Division therefore held that Vaillancourt was entitled to have the decision in her favor enforced and that there was no need to go to arbitration.

There was a different outcome in a grievance case with similar procedural facts [Weed v Orange County, 209 A.D.2d 627; 209 A.D.2d 628].

Weed had been injured on the job and applied for leave with full pay, claiming he was eligible for such leave under the terms of the collective bargaining agreement then in effect. The Orange County Commissioner of Personnel disapproved Weed’s request. Weed filed a contract grievance and won at Step I, when his supervisor ruled in his favor. The Commissioner refused to implement the Step I decision and Weed sued.

The Appellate Division dismissed Weed’s petition, citing the language of the contract. Under the terms of the agreement “the Commissioner of Personnel is given sole discretion in granting paid leave.” Therefore, the issue was not grievable in the first place.

Presumably the Court would have enforced the decision by Weed’s immediate supervisor had the contract not reserved the authority to make paid leave decisions exclusively in the Commissioner.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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