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August 05, 2010

Stay of arbitration

Stay of arbitration
Town of Hempstead v CSEA Local 1000, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]

Under what circumstances will a court issue an order barring a grievance from being submitted to arbitration? As the Town of Hempstead case demonstrates, the court must be persuaded that (1) the demand for arbitration was untimely, or (2) that the subject matter of the grievance was not arbitrable, or (3) both.

In the Hempstead case, the court ordered the town to arbitrate a grievance in which an employee claimed he was denied seniority rights.

CSEA concluded that an employee who had less seniority than Fernando Avolio was promoted to the position of Dockmaster. The union filed a grievance on behalf of Avolio alleging that the Town violated the seniority provisions of the Taylor Law agreement then in effect.

The Town’s Grievance Board issued a determination holding that the Town’s action was not grievable because “the subject matter of the grievance does not fall within the definition of a grievance” under the terms of the collective bargaining agreement. The Town wrote CSEA indicating that it would not submit the issue to arbitration.

Half a year later, CSEA served the Town with a notice of intent to arbitrate. In response, Hempstead filed a motion in New York State Supreme Court pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] to stay arbitration.

The Town said the demand for arbitration was untimely because “the union ... was required to commence a proceeding to compel arbitration within 30 days of the Grievance Board decision....”. Also, it said Avolio’s claim was not subject to arbitration under the terms of the collective bargaining agreement.

The court rejected the town’s argument on the issue of timeliness. Because the town declared that the seniority issue was not covered by the contract, it took the position that the grievance did not exist, the court said. Therefore, the town cannot rely the CSEA’s failure to file a timely demand for arbitration to defeat its demand for arbitration.

As to the merits of the issue regarding the contract, said that the definition of a grievance is quite broad. Under the express language of the contract, the parties agreed that arbitrable grievances include those related to a claimed violation, misinterpretation or inequitable application of the existing collective bargaining agreement, rules, procedures, regulations, administrative orders or work rules of the employer or department.

Specifically, said the court, Section 26 of the Collective Bargaining Agreement provides that ability, adaptability and seniority shall prevail insofar as practicable and consistent with the needs and practices of the department. This includes (a) promotions in labor and non-competitive jobs, (b) job assignments, (c) transfers with a department regarding proximity of the job and (d) vacancies in departments.

The court said neither the Town’s petition to stay arbitration nor the Grievance Board’s memorandum set out any reason why the “seniority” grievance submitted by Avolio does not fall within the ambit of the definition of a grievance.

Finding that the Collective Bargaining Agreement “is clear and unequivocal and the definition of grievance is broad and encompassing and covers the dispute in question,” the court ordered Hempstead to “proceed forthwith to arbitration with respect to this grievance.”

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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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