September 22, 2010

Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"

Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813

Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.

Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.

The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.

The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"

The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.

The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.

Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
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