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Monday, July 18, 2011

Arbitrating a grievance after the Taylor Law contract expires

Arbitrating a grievance after the Taylor Law contract expires
Uniformed Fire Fighters Assoc. Inc. v City of Mount Vernon, NYS Supreme Court, Justice Lefkowitz, Not selected for publication in the Official Reports

The 1996-2000 collective bargaining agreement between the Firefighters Union and the City of Mount Vernon provided that an issue involving random drug testing should be resolved by December 1, 1997 or it would be submitted to arbitration. The issue, however, was neither resolved nor submitted to arbitration.

The collective bargaining agreement expired on December 31, 2000. As no successor agreement had been negotiated, the provisions of Section 209-a(1) -- the so-called Triborough Amendment -- were triggered.*

On July 30, 2001 the city demanded that the drug testing issue be submitted to arbitration. The Union objected and asked State Supreme Court Justice Lefkowitz to stay the arbitration. Justice Lefkowitz granted the Union's motion, ruling that the City's demand to submit the matter to arbitration was untimely since the collective bargaining agreement had expired prior to its making the demand.

According to Justice Lefkowitz:

Absent conduct of the parties evincing survival of the arbitration clause notwithstanding expiration of the contract or an intent of survival contained within the parameters of the contract, an otherwise arbitrable dispute is not subject to arbitration upon expiration of the agreement “except as to rights and wrongs, which had already come into existence.
 
Justice Lefkowitz said that Section 209-a(1), making it an improper labor practice for a public employer to refuse to continue all the terms of an expired agreement until a new agreement is negotiated, applies only “insofar as the rights of the union are concerned.”


Justice Lefkowitz commented that “statutorily only the public employer is obligated to arbitrate with respect to the terms of the expired contract until a new agreement is effective."

Implicit in Justice Lefkowitz's interpretation: Section 209-a(1) provides that only the union may demand arbitration under the expired agreement's contract grievance procedure concerning an alleged violation of a term or condition contained the expired Taylor Law agreement.

However, in Schenectady v Lainhartsi, 177 AD2d 826, the Appellate Division, Third Department said that the expiration of a collective bargaining agreement did not result in the agreement's arbitration clause being unenforceable as Section 209-a(1) [see Footnote below] mandates the continuation of all of the terms of the expired agreement, including the arbitration provision. Presumably this means that the mandates set out in Section 209-a(1) apply equally to both the employer and the union.

In contrast, if a provision set out in an expired Taylor Law agreement itself contained a “sunset” provision, presumably that specific limitation would be observed and excluded from the mandates implicit in Section 209-a(1).

* Section 209-a(1) of the Civil Service Law, makes it an improper practice for a public employer “to refuse to continue all the terms of an expired agreement until a new agreement is negotiated.”

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