A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement
Meyer v City of Long Beach, 2018 NY Slip Op 06526, Appellate Division, Second Department
Certain retired police officers [Plaintiffs] sought to recover damages resulting from an alleged breach of the terms and conditions set out in a collective bargaining agreement [CBA] established pursuant to Article 14 of the Civil Service Law [the Taylor Law] from their former employer, the City of Long Beach [City]. Supreme Court denied the City's motion to dismiss the Plaintiffs' petition and the City appealed the Supreme Court's ruling. The Appellate Division affirmed the lower court's decision, with costs.
The facts as reported in the Appellate Division's decision are as follows:
Plaintiffs were members of the Long Beach Patrolmen's Benevolent Associations [PBA], when the relevant CBA between the City and the PBA expired. Efforts to negotiate a successor CBA failed and ultimately an arbitration award resulting from "compulsory interest arbitration," which allegedly had the statutory effect of becoming the successor CBA to the expired CBA for those members covered by the award, was issued.
The Plaintiffs here, however, had retired prior to the issuance of the arbitration award and although Plaintiffs claimed that the arbitration award applied to them, the City contends that it does not and refused to give them certain compensation mandated by the award.
The City argued that:
 the doctrine of collateral estoppel bars Plaintiffs from bringing this action, citing the decision in an improper practice charge filed by the Commanding Officers Association of Long Beach, New York, Inc. [COA] against the City with the New York State Public Employment Relations Board [PERB]. In that action PERB determined that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award; and
 Plaintiffs' failed to pursue the grievance procedure set out in the CBA established by the award bars their lawsuit seeking to recover damages for the alleged breach of contract.
With respect to the City's reliance on the doctrine of collateral estoppel, the Appellate Division said that the issue raised in Plaintiffs' action is not identical to the issue litigated in an improper practice charge filed by COA against the City before PERB and PERB's determination that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award did not determine whether the benefits set forth in the arbitration award applied to the Plaintiffs, who were never members of the COA. Thus, said the court, doctrine of collateral estoppel is inapplicable to that issue.
As to the City's claim that Plaintiffs' failed to pursue the grievance procedure set out in the successor CBA, the Appellate Division said that this failure "does not warrant dismissal of the cause of action to recover damages for breach of contract" as "the CBA limits invocation of the grievance procedure outlined therein to 'bargaining unit member[s].'" The court explained that as retired employees of the City, Plaintiffs were not members of the collective bargaining unit when they became aggrieved and thus they could not have pursued the grievance procedure set out in the CBA that the City claimed was available to them.
The Appellate Division's decision is posted on the Internet at: