Wednesday, June 10, 2015

An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices



An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices
Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York,125 AD3d 475

In this action the Appellate Division considered the viability of grieving an alleged violation of a claimed “past-practice” in the event the subject of the alleged past-practice is reflected in the terms and conditions of the collective bargaining agreement.

Supreme Court had granted the Detectives' Endowment Association’s [Association], petition to annul a determination of New York City Board of Collective Bargaining [Board] denying the Association’s demand for the arbitration of a grievance based on an alleged departed from a past practice related to salaries paid to detectives. Supreme Court annulled the Board’s decision and directed the parties to proceed to arbitration of the grievance.

The Board appealed and the Appellate Division reversed the lower court’s ruling.

The Board had found that the Association’s grievance was not arbitrable due to the lack of a reasonable relationship between the relevant provisions of the collective bargaining agreements and the claim that the New York City Police Department improperly departed from its past practice by paying salaries to detectives that were lower than those paid to officers.

The Appellate Division held that the Board “had a rational basis and was not arbitrary and capricious, citing NYC Dept. of Sanitation v MacDonald, 87 NY2d 650.

Although the Association had argued that its grievance alleged an "inequitable application" of the parties' contracts, thereby satisfying the contractual definition of an arbitrable grievance," the Appellate Division rejected that Association's argument concerning the relationship between the alleged past practice and the relevant provisions in the collective bargaining agreement. 

The court explained that Association’s contention that the contractually provided salary schedule improperly departed from the alleged past practice was not "relevant to the parties' contractual rights and responsibilities" in the absence of any contractual provision requiring or preserving the continuation of past practices as to salaries, citing Chenango Forks CSD v NYS  Public Employment Relations Board, 21 NY2d 255.

Further, said the court, the Association made no claim that the alleged past practice would have been relevant to any other contractual issue, such as the interpretation of an ambiguous provision.”

* The Appellate Division noted that the collective bargaining agreement included an "inequitable application" provision.

The decision is posted on the Internet at:

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