June 27, 2013

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA
2013 NY Slip Op 04411, Appellate Division, Third Department

A member of the college's faculty [MF] contended that various members of the faculty and the administration failed to follow the procedures set forth in the collective bargaining agreement [CBA] in considering him for promotion to his professional and economic detriment.

The Faculty Association filed a grievance on MF’s behalf but shortly thereafter decided withdraw its grievance. MR sued, alleging a breach of the CBA. Ultimately Supreme Court dismissed his petition, finding that MF “lacked standing” to bring the action and MF appealed that ruling to the Appellate Division.

MF argued that although he does not contend that the Faculty Association breached its duty of fair representation, he should have standing to pursue a common-law breach of contract action against his employer regarding the alleged violations of the promotion procedures.

The Appellate Division disagreed, holding that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract."

Although the court noted “Exceptions [to the general proposition] [1] include where the collective bargaining agreement grants an employee a right to sue directly or [2] where the union fails in its duty of fair representation,” it pointed out that MF acknowledged that he is not alleging that Faculty Association breached its duty of representation but that argued that under the CBA decisions related to promotions are excepted from the grievance procedure and, thus, he contends that he can pursue an action directly against college defendants.

Rejecting MF’s theory, the Appellate Division said that the ultimate decision granting a promotion is not subject to a grievance under the CBA in contrast to the “lengthy procedures” faculty members must follow over several years to become eligible for consideration of a promotion. Such procedures, said the court, “are set forth in the CBA and are not explicitly excepted from the grievance process.”

It is the purported failure to follow these promotion procedures that MF challenged and the CBA, said the court, “does not carve out a separate right regarding these procedures that can be enforced by an employee directly against defendants.”

The decision is posted on the Internet at: