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Wednesday, July 25, 2012

A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA


A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA
Local 2841 of N.Y. State Law Enforcement Officers Union, AFSCME, AFL-CIO v City of Albany, 53 AD3d 974

A stipulation of settlement was entered into by Local 2841 and the City of Albany to resolve a number of grievances filed under the then Collective Bargaining Agreement [CBA]. By its terms, the stipulation “could not be modified or rescinded absent a subsequent writing of the parties.”

Subsequently the Local and the City negotiated and executed a successor CBA.

In the course of resolving a grievance brought under the new CBA, the arbitrator found that the stipulation made under the earlier CBA had not been modified or rescinded by any writing of the parties. Further, the arbitrator deemed the stipulation of settlement to be a rule of the Albany Police Department and, therefore, concluded that the City violated the terms of the CBA by not complying with its provisions.

The Appellate Division disagreed and vacated the arbitrator’s award.

The court said that “inasmuch as the successor CBA represents the entire agreement between the parties, it was not proper for the arbitrator to rely on the ‘stipulation of settlement’ flowing from the earlier CBA in resolving the instant grievance.”

“Accordingly,” ruled the Appellate Division, “the arbitrator exceeded his power in amending the terms of the CBA by considering that stipulation of settlement in contravention of an expressed term of the CBA which prohibited amending, modifying or deleting any provision thereof,” presumably viewing a term in the successor CBA as constituting “a subsequent writing of the parties” modifying or rescinding the terms of the stipulation of settlement entered into under the earlier CBA.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06421.htm

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