December 29, 2010

Determining membership in a negotiating unit for the purposes of collective bargaining

Determining membership in a negotiating unit for the purposes of collective bargaining
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413

Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.

Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?

This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.

Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.

According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.

Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.

Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.

The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.

The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.

In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.

This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.

In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.

* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.

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