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Union?s attempt to resolve a grievance ?informally? does not toll the statute of limitations for filing the grievance

Union?s attempt to resolve a grievance ?informally? does not toll the statute of limitations for filing the grievance
Matter of Local 832 Term. Employees of the City of New York v Department of Educ. of the City of New York, 60 AD3d 567

Local 832 Terminal Employees of the City of New York school lunch managers and school food service managers employed by Department of Education of the City of New York (DOE).

When Local 832's president raised an alleged breach of the collective bargaining agreement with DOE management he was told to "hold off" on filing a formal grievance in the hope that the matter could be resolved informally. Months went by without a substantive response from DOE. Local 832 filed a formal grievance almost six months after the event giving rise to the grievance. Ultimately, Local 832 commenced filed a petition pursuant to CPLR 7503(a) to compel arbitration of the matter in accordance with the grievance resolution provisions of the CBA.

DOE opposed the Local?s petition contending that the union had failed to comply with the requirement in the CBA that "a complaint concerning any condition of employment within the authority of [DOE]" be presented as a formal grievance "within a reasonable period, not to exceed 30 days, of time following the action complained of."

Supreme Court granted the petition, finding that Local 832 "satisfactorily complied" with the CBA by attempting to resolve the dispute informally before presenting a formal grievance, as the CBA contemplates.

The Appellate Division ?set aside the grant of the petition? and remand the matter for an evidentiary hearing 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 formal grievance.

Agreeing with DOE that Local 832 did not formally present its grievance within the 30-day time 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," the Appellate Division rejected Local 832's assertion that the provision at issue should be interpreted to require only that a grievance be presented "within a reasonable time after the informal complaint process fails."

The court said such a position ?is untenable, since the failure to resolve an issue informally is not itself grounds for complaint.?

In addition, said the court, the informal complaint procedure, by virtue of its very informality, will not necessarily have any clearly defined point of termination, ?essentially render nugatory the contractual 30-day time frame for filing a formal grievance.?

Further, although Local 832 correctly pointed out that the CBA "contemplates that time be given to permit the parties to resolve matters informally before initiating a formal grievance," this is still consistent with the requirement that the formal grievance process be initiated within 30 days. Further, said the court, the CBA provides that ?in the event a grievance goes to arbitration, 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, the terms of [the CBA].??

Such a provision, said the Appellate Division, has been held to mandates vacatur of an arbitration award granting relief based on a grievance that was presented after expiration of the limitation period set forth in the governing collective bargaining agreement, citing Nassau Health Care Corp. v CSEA, 20 AD3d 401.

Notwithstanding this, however, the Appellate Division ruled that while Local 832 failed to commence the formal grievance process within the time frame mandated by the CBA, a factual issue exists on this record as to whether DOE is estopped to oppose arbitration based on the untimely presentment of the grievance since the president of Local 832 asserts that, when he raised the matter in oral conversation with DOE management personnel, they told him to "hold off" on presenting a formal grievance so that DOE could "look into it and see if we can accomplish what you are requesting."

Repeatedly told that it was still "looking into it," Local 832 contends that it was in reliance on these assurances by DOE that it refrained from initiating the formal grievance procedure for approximately five months after the issue arose.

Accordingly, the issue was remanded for a hearing to determine whether DOE is estopped as Local 832 claims, with the petition to be granted if DOE is found to be estopped or, alternatively, to be denied if DOE is found not to be estopped.

It could be argued that Local 832 ?informal? action is similar to an individual ?submitting a request for reconsideration of an administrative determination.?

In contrast to the legal effect of an individual merely submitting a ?request for reconsideration,? which does not toll the relevant statute of limitations, if the administrative body actually agrees to reconsider the matter -- in this case, representing that the issue was under consideration -- and thereafter issues a ?new determination,? the statute of limitations will begin running from the date of the new ?final determination.?

This is the case even if the new ?final determination? confirms the original administrative decision [see Raykowski v NYC DOT, 259 A.D.2d 367].

Full post as published by New York Public Personnel Law on February 10, 2010 (boomark / email).