Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration
Sossous v Herricks Union Free Sch. Dist., 2016 NY Slip Op 05924, Appellate Division, Second Department 

The general rule concerning the right to demand that a grievance be submitted to arbitration in accordance with the terms and conditions of a collective bargaining agreement is that only the union or the employer may make such a demand.

In contrast, a unit member could exercise an independent right to demand arbitration if he or she is able to show that the union’s decision not to submit his or her grievance to arbitration was arbitrary, discriminatory, or made in bad-faith and thus demonstrating a breach of the union's duty of fair representation. 

In the absence of such a showing,  however, a union's "decision to conclude the grievance process short of the final step allowed by the contract or law is binding on the employee and precludes resort to additional remedies”.* 

The Sossous decision by the Appellate Division sets out another exception to the general rule.

The grievant, Final Sossous, filed Article 75 petition seeking to compel arbitration involving the terms of a “settlement agreement” entered into by the Herricks Union Free School District and Herricks Teachers' Association. The School Districtasked the court to dismiss Sossous’ petition, contending that “only the Herricks Teachers' Association, and not [Sossous] individually, may seek arbitration of the issues relating to the settlement agreement.** Supreme Court agreed and dismissed Sossous’ petition.

In this case, however, the argument that only the Herricks Teachers' Association and not Sossous, individually, may seek arbitration of the issues relating to the settlement agreement failed.

The Appellate Division vacated the lower court’s ruling explaining that “under the circumstances of this case, the parties charted their own procedural course by entering into a settlement agreement providing that the arbitrator would retain jurisdiction to resolve ‘any dispute that may arise concerning this settlement agreement.’"

The is consistent with judicial rulings holding that questions concerning compliance with a contractual step-by-step grievance process concern matters of procedural arbitrability are to be resolved by an arbitrator.

In the words of the Appellate Division, Sossous “raises a question of procedural arbitrability that must be resolved by the arbitrator” as the School Districtand the Association agreed that the arbitrator would retain jurisdiction to resolve "any dispute that may arise concerning this settlement agreement."

Accordingly, said the Appellate Division, the Supreme Court should have granted Sossous’ petition to compel arbitration and denied the School District’s cross motion to dismiss the petition.

* New York City Tr. Auth. v Gorrick, 72 AD3d 518.

** Comack Union Free School District v Ambach, 70 NY2d 501.
 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_05924.htm