Employee may not demand union proceed to arbitration as a matter of right
Matter of Hoffman; Board of Education of the City of New York, 84 A.D.2d 840
Although it is generally held that only the Union or the Employer have the power to go to arbitration in connection with a contract grievance procedure, employees unhappy with their unions decision not to go to arbitration are now frequently turning to the courts for an order to permit their proceeding against the employer directly.
In Hoffman the Appellate Division ruled that the Union (in this instance the United Federation of Teachers) was not required to seek arbitration after having processed the employee’s grievance through the initial stages of the grievance procedure and received unfavorable results.
The court also said that if an employee wished to proceed directly against an employer when the Union refused to arbitrate, the employee would first have to show that the Union breached its duty of fair representation (i.e.: bad faith, arbitrariness or discriminatory conduct).
Here the employee had sought a benefit from an earlier arbitration award which gave relief for an “interrupted” sabbatical leave. The employer refused to apply the arbitration award decision claiming that the employee’s application for the benefit was untimely. The Union had refused to arbitrate the question of timeliness after losing at all previous steps of the grievance procedure.