Labor & Employment Law

Challenging a change in the work schedule

By Harvey Randall, Esq.

Challenging a change in the work schedule

In the Arbitration between Sullivan County and Teamsters Local 445, App. Div., 3rd

Dept 294 A.D.2d 640

This decision sets out the history of a series of decisions by the employer that the union challenged as violating the collective bargaining agreement. Here the Appellate Division overturned two arbitration awards in which the arbitrator, agreeing with the union, ruled that the County had violated the collective bargaining agreement.

A decline in the demand for the services of its home health aide employees [aides] result­ed in Sullivan County unilaterally changing the full-time positions then held by the aides to part-time positions.

The aides' collective bargaining agent, Local 445, responded by filing a grievance. Although the Local agreed that Sullivan County had the power to lay off the aides, it contended that the collective bargaining agreement [CBA] barred the County from reduc­ing the aides' hours of employment. An arbitrator held that the change imposed by the County violated the CBA and issued an award directing the County to reinstate the aides to full-time positions.

The County then abolished the full-time aide positions and offered the laid-off aides part-time employment. The County also filed an Article 75 proceeding seeking to vacate the arbitrator's award.

In the meanwhile, Local 445, despite its previous acknowledgment of the County's authority to abolish the full-time positions and to lay off the aides should it decided to do so, filed a second grievance challenging the County's authority to abolish the full-time aide positions. Again an arbitrator ruled in favor of the Local, holding that the Sullivan County's unilateral action violated the CBA. As the appeal resulting from the initial arbi­tration award was still pending in the Appellate Division, the arbitrator stayed directing the remedy set out in the second decision but retained jurisdiction pending the outcome of the initial award appeal.

The County then commenced a second Article 75 action, this time seeking to vacate the second arbitration award.

Addressing the appeal challenging the initial arbitration award, the Appellate Division decided that the CBA "expressly authorizes [Sullivan County] to reduce the aides' hours due to lack of work" and affirmed Supreme Court's ruling vacating the first award [Teamsters Local 445, 276 AD2d 861, leave to appeal denied, 96 NY2d 703].

As to the challenge to the second arbitration award, a Supreme Court judge vacated this award as well and Local 445 appealed. The Appellate Division dismissed the Local's second appeal, holding that: ?In light of our previous determination establishing [the County's] authority under the CBA to unilaterally reduce the aides' hours and the undisputed fact that the aides were immediately rehired on a part-time basis after [the County] terminated their full-time employment, we can discern no way in which a decision on this appeal will have any impact on the rights of the parties. Thus, as none of the exceptions to the mootness doctrine applies ..., the appeal must be dismissed.?

Full post as published by New York Public Personnel Law on March 06, 2008 (boomark / email).