It is well settled that, "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" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert denied 485 US 1034 [1988]; see Clark v County of Cayuga, 212 AD2d 963, 963 [4th Dept 1995]). There are two exceptions to that rule.
"The first exception applies when the contract provides otherwise . . . , i.e., the contract either expressly allows such suits or implicitly does so by excluding the dispute at issue from, or not covering it within the ambit of the contractual dispute resolution procedures" (Buff v Village of Manlius, 115 AD3d 1156; see Ledain v Town of Ontario, 192 Misc 2d 247, 251 [Sup Ct, Wayne County 2002], affd 305 AD2d 1094 [4th Dept 2003]).
"The second exception applies when the union fails in its duty of fair representation . . . , but the employee must allege and prove that the union breached its duty to provide fair representation to the employee" (Buff, 115 AD3d at 1157 [internal quotation marks omitted]; see Ambach, 70 NY2d at 508).
In this action Plaintiffs, retired employees of the Town, did not allege or show that the union breached its duty of fair representation (see Clark, 212 AD2d at 963), and therefore only the first exception is at issue, namely "did the contract either expressly allows such suits or implicitly does so by excluding the dispute at issue from, or not covering it within, the ambit of the contractual dispute resolution procedures."
Although Supreme Court held that the grievance procedure set out in the collective bargaining agreement [CBA] was the exclusive procedure by which Plaintiffs, retired employees of the Town, could seek redress and that they were required to bring their claims through the grievance procedure despite their status as retirees, the Appellate Division disagreed and "unanimously reversed" Supreme Court's order "on the law" and reinstated the retired employees' complaint.
Inasmuch as Plaintiffs were not aggrieved until after they had retired, and inasmuch as the CBAs "expressly limit[] the availability of the grievance procedure to current employees," the Appellate Division concluded that "the clear and unambiguous terms of the [CBAs]" establish that the grievance process was not available to Plaintiffs at the time they became aggrieved, citing Matter of DeRosa v Dyster, 90 AD3d 1470, and other decisions.
Accordingly, Plaintiffs' may go forward with their efforts seeking a court order compelling the Town to reimburse certain health insurance premiums which Plaintiffs contend they are entitled to pursuant to the terms of a CBA between Town and the Union that represented Plaintiffs during their employment by the Town.
Click HERE to access the Appellate Division's decision posted on the Internet.