| Matter of Local 832 Term. Empls. of City of N.Y. v Department ofEduc. of City of N.Y. |
| 2009 NY Slip Op 02301 [60 AD3d 567] |
| March 26, 2009 |
| Appellate Division, First Department |
| In the Matter of Local 832 Terminal Employees of the City of NewYork, Respondent, v Department of Education of the City of New York,Appellant. |
—[*1] Law Offices of Stuart Salles, New York (Stuart Salles of counsel), for respondent.
Order, Supreme Court, New York County (Charles J. Tejada, J.), entered September 19,2007, which granted the petition to compel arbitration and denied respondent's cross motion todismiss the petition, unanimously modified, on the law, to vacate the granting of the petition tocompel arbitration, the matter remanded for an evidentiary hearing to determine whetherrespondent is estopped to invoke as a bar to arbitration petitioner's failure to comply with thecollective bargaining agreement's 30-day limitation period for the presentment of a formalgrievance, and otherwise affirmed, without costs.
Petitioner Local 832 Terminal Employees of the City of New York (Local 832) is the unionthat represents school lunch managers and school food service managers employed byrespondent Department of Education of the City of New York (DOE). DOE required certainmembers of Local 832 to work on Monday, January 3, 2005. Local 832 contends that, under theapplicable collective bargaining agreement (CBA), its members are entitled to a 50% cashpremium for work on that date, since it was the first Monday following a weekend New Year'sDay. However, the paychecks for the period including January 3, 2005 (which were issued onJanuary 14, 2005) did not include such extra pay.
According to the affidavit of Local 832's president, when he informally raised with DOEmanagement the issue of extra pay for January 3, 2005, he was told to "hold off" on filing aformal grievance in the hope that the matter could be resolved informally. After months went bywithout a substantive response from DOE, Local 832 filed a formal grievance on June 15, 2005.Ultimately, Local 832 commenced this proceeding pursuant to CPLR 7503 (a) to compelarbitration of the matter in accordance with the grievance resolution provisions of the CBA.
DOE opposed the petition on the ground, inter alia, that Local 832 failed to comply with therequirement of article XXIII of the CBA that "a complaint concerning any condition ofemployment within the authority of [DOE]" be presented as a formal grievance "within areasonable period, not to exceed 30 days, of time following the action complainedof" (emphasis [*2]added).[FN*]Supreme Court granted the petition, finding that Local 832 "satisfactorily complied" with theCBA by attempting to resolve the dispute informally before presenting a formal grievance, as theCBA contemplates. We now set aside the grant of the petition and remand for an evidentiaryhearing to determine whether DOE's conduct estops it from invoking, as a bar to arbitration,Local 832's failure to comply with the CBA's 30-day limitation period for presenting a formalgrievance.
We agree with DOE that Local 832 did not formally present its grievance within the 30-daytime frame required by the CBA, and that compliance with this time frame is, under the CBA, a"condition precedent to access to the arbitration forum" (see Matter of County of Rockland[Primiano Constr. Co.], 51 NY2d 1, 5 [1980]). Contrary to Local 832's argument, the phrase"the action complained of" in the CBA provision at issue unambiguously refers to the action ofDOE that is the subject of the underlying complaint (i.e, the "complaint concerning anycondition of employment" referenced earlier in the same sentence). Local 832's assertion that theprovision at issue should be interpreted to require only that a grievance be presented "within areasonable time after the informal complaint process fails" is untenable, since the failure toresolve an issue informally is not itself grounds for complaint. Further, since the informalcomplaint procedure, by virtue of its very informality, will not necessarily have any clearlydefined point of termination, Local 832's reading of the CBA would essentially render nugatorythe contractual 30-day time frame for filing a formal grievance. Local 832 correctly points outthat the CBA "contemplates that time be given to permit the parties to resolve matters informallybefore initiating a formal grievance." This is still consistent with the requirement that the formalgrievance process be initiated within 30 days. Local 832's concern that 30 days is not sufficienttime for the informal complaint procedure to work does not allow us to reach a different result. Itis not this Court's role to rewrite the contractual terms that the parties have freely negotiated andagreed upon through the collective bargaining process.
We further note that article XXIII of the CBA provides that, in the event a grievance goes toarbitration, the arbitrators "shall be without power or authority to make any decision. . . [c]ontrary to, or inconsistent with, or modifying or varying in any way, theterms of [the CBA]." It has been held that a contractual limitation of this sort on the power of thearbitrators mandates vacatur of an arbitration award granting relief based on a grievance that waspresented after expiration of the limitation period set forth in the governing collective bargainingagreement (see Nassau Health CareCorp. v Civil Serv. Empls. Assn., Inc., 20 AD3d 401, 402 [2005]; Matter ofRockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308 AD2d 452, 454[2003]; Matter of Hill v Chancellor of Bd. of Educ. of City School Dist. of N.Y., 258AD2d 462, 463 [1999]).
Although Local 832 failed to commence the formal grievance process within the time framemandated by the CBA, a factual issue exists on this record as to whether DOE is estopped [*3]to oppose arbitration based on the untimely presentment of thegrievance. As previously noted, the president of Local 832 asserts that, when he raised the matterin oral conversation with DOE management personnel, they told him to "hold off" on presentinga formal grievance so that DOE could "look into it and see if we can accomplish what you arerequesting." In response to the president's later calls, DOE repeatedly stated that it was still"looking into it." Local 832 contends that it was in reliance on these assurances by DOE that itrefrained from initiating the formal grievance procedure for approximately five months after theissue arose. These allegations, which DOE has not controverted, raise a factual issue as towhether DOE is estopped to invoke as a bar to arbitration Local 832's failure to present a formalgrievance within the 30-day period (cf. Baron v Lombard, 71 AD2d 823, 824 [1979],affd 50 NY2d 896 [1980] [employee's conduct, on which employer reasonably relied inscheduling disciplinary hearing, estopped employee to claim that he had not waived the right tosuch a hearing within the time frame mandated by the collective bargaining agreement]).Accordingly, we remand for a hearing to determine whether DOE is estopped as Local 832claims, with the petition to be granted if DOE is found to be estopped or, alternatively, to bedenied if DOE is found not to be estopped.
We reject DOE's argument that the petition is barred by Local 832's failure to comply withEducation Law § 3813 (1), which requires, as a precondition to commencement of anaction or special proceeding against DOE, that "a written verified claim" be presented to DOE"within three months after the accrual of such claim." In view of the CBA's specification of"detailed [grievance] procedures which are 'plainly inconsistent with those contained in [thestatute]' " (Matter of Geneseo Cent. School [Perfetto & Whalen Constr. Corp.], 53 NY2d306, 311 [1981], quoting Matter of Guilderland Cent. School Dist. [Guilderland Cent.Teachers Assn.], 45 AD2d 85, 86 [1974]), it is evident that the parties intended to make thestatutory notice-of-claim provision inapplicable (see Civil Serv. Empls. Assn. v Board ofEduc. of Lakeland Cent. School Dist. of Shrub Oak, 230 AD2d 703 [1996]; Matter ofSouth Colonie Cent. School Dist. [South Colonie Teachers' Local 3014], 86 AD2d 686[1982]).
We have considered DOE's remaining arguments and find them unavailing.Concur—Friedman, J.P., Sweeny, McGuire, Renwick and Freedman, JJ.
Footnote *: The relevant sentence of articleXXIII of the CBA states in full: "If the matter has not been disposed of informally, an employeehaving a complaint concerning any condition of employment within the authority of [DOE] may,within a reasonable period, not to exceed 30 days, of time following the action complained of,present such complaint as a grievance in accordance with the provisions of this grievanceprocedure."