ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

September 01, 2016

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

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.