Opinion
No. 101799/2015.
06-20-2016
In the matter of the application to compel arbitration by SUBWAY SURFACE SUPERVISORS ASSOCIATION, Petitioner, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
Koehler & Isaacs LLP by Howard Wien, Esq., New York, for petitioner. James B. Henly, Vice President and General Counsel by Baimusa Kamara, Esq., Senior Litigator, of Counsel, Brooklyn, for respondent.
Koehler & Isaacs LLP by Howard Wien, Esq., New York, for petitioner.
James B. Henly, Vice President and General Counsel by Baimusa Kamara, Esq., Senior Litigator, of Counsel, Brooklyn, for respondent.
MICHAEL D. STALLMAN, J.
Petitioner Subway Surface Supervisors Association (SSSA), a labor union, seeks to compel arbitration of a grievance that it filed with respondent. The grievance alleges that three employees in the civil service title of Station Supervisor Level I allegedly performed out-of-title work for at least 90 consecutive days, in violation of the union's collective bargaining agreement.
Respondent opposes the petition and cross-moves for dismissal of the petition and a permanent stay of arbitration, on the ground that these three employees are confidential employees who are not union members. Petitioner opposes the cross motion.
BACKGROUND
It is undisputed that petitioner and respondent are parties to a collective bargaining agreement (CBA), effective as of October 1, 1994. (Verified Petitioner, Ex A.) Section 1.2 of the CBA, the recognition clause, states, in relevant part:
According to petitioner, this CBA, effective October 1, 1994, expired in 1998, but has been extended by virtue of a series of Memoranda of Understanding and a valid impasse arbitration award. (Verified Petition at 2 n 1.) Respondent states that the CBA, is “effective as of October 1, 1994 and has been supplemented/amended, at various times, by memoranda of understanding.” (Verified Answer ¶ 4.) Respondent cites to the CBA that petitioner submitted.
“The Authority recognizes the Union as the exclusive bargaining representative and exclusive representative for the representing and processing of employee grievances for all of the annually paid supervisory employees of the Authority in the titles listed in the Wage Schedules attached hereto and made a part hereof, excluding persons employed in similar titles in the Queens Bus Division.”
(Verified Petition, Ex A.) It is undisputed that Station Supervisor Level I is among the titles listed in the Wage Schedules of the CBA.
Pursuant to an agreement dated January 2, 1980, respondent, petitioner, and other unions agreed that certain positions are to be considered as confidential. This agreement states, in pertinent part:
“2. The following positions are to be considered as confidential and employees working in these positions shall not be represented by a Union: ...
B. All employees on the staff of Labor Relations and Personnel (formerly staff of Executive Officer, Labor Relations and Personnel).
C. All employees in the Labor Relations Department. ”
(Verified Petition, Ex I [respondent's emphasis].)
On June 17, 2015, petitioner filed a grievance with respondent, alleging that three employees in the title of Station Supervisor level I, M. Costen–Darden, Dawn Hicks, and T. Williams, were performing out-of-title work, in violation of section 2.30 of the CBA. (Verified Petition, Ex B.) The same day, respondent returned the grievance, stating in a memo dated June 17, 2015, “The Grievant(s) listed are not SSSA union members. Grievant(s) are under Labor Relations Responsibility Center and are being paid thru Labor Relations.” (Verified Petition, Ex C.) According to respondent, the duties of a Station Supervisor Level I appointed to work in the Labor Relations Department include, among other things, serving as departmental hearing officers in both discipline and contract interpretation cases involving union-represented Transit Authority employees. (Latimer Affirm. ¶ 7.)
On July 6, 2015, petitioner filed a second grievance for the three employees, alleging that “Hearing Officers do none of the duties” listed in the job description of a Station Supervisor Level I, and sought pay equal to “Level II Supervisors in Labor Relations, to be made whole in every way.” (Verified Petition, Ex D .) By a memo dated July 15, 2015, respondent returned the second grievance, stating again, “The Grievant(s) listed are not SSSA union members. Grievant(s) are under Labor Relations Responsibility Center and are being paid thru Labor Relations.” (Verified Petition, Ex E.)
Petitioner then brought this proceeding to compel respondent to proceed to arbitration of the grievance. Petitioner considers respondent's return of the grievances and respondent's refusal to proceed with a hearing as having exhausted Step I and Step II of the grievance procedures of the CBA. No notice of intention to arbitrate appears to have been served upon respondent.
DISCUSSION
“A grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so. In determining whether a grievance is arbitrable, we therefore follow the two-part test enunciated in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 N.Y.2d 509, 399 N.Y.S.2d 189, 369 N.E.2d 746 [1977] [Liverpool ] and Matter of Board of Educ. of Watertown City School Dist. (Watertown Educ. Assn.), 93 N.Y.2d 132, 143, 688 N.Y.S.2d 463, 710 N.E.2d 1064 [1999] [Watertown ]. We first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. This is the may-they-arbitrate' prong. If there is no prohibition against arbitrating, we then examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue. This is the did-they-agree-to-arbitrate' prong.”
(Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 N.Y.2d 273, 278 [2002] [internal citations omitted].) Here, respondent does not claim that there is any prohibition against arbitration of the grievance. Rather, the parties disagree as to whether they agreed to arbitrate the grievance at issue.
Section 1.7 of the parties' collective bargaining agreement (CBA) defines a “Grievance” as “a complaint on the part of any employee covered by the contract, or a group of such employees, that there has been, on the part of management, noncompliance with any of the provisions of the agreement.” (Verified Petition, Ex A [emphasis supplied].) According to petitioner, respondent violated Section 2.30 of the CBA with regard to the three employees named in the grievance. However, respondent asserts that the three employees are not covered under the CBA, and therefore argues that there is no agreement to arbitrate with petitioner.
The resolution of this dispute turns on the interplay, on the one hand, of the agreement dated January 2, 1980 among respondent and other unions, and on the other hand, the CBA. Petitioner apparently takes the position that the January 2, 1980 agreement has no bearing on, or relevance to, the CBA. Petitioner maintains that, “so long as an employee is serving in a title listed in the Wage Schedule, the union may process that employee's grievance.” (Verified Petition ¶ 14.) Petitioner states, “This agreement has no bearing on whether the grievances at issue should proceed to arbitration. This is so because, although the union agreed that all employees in the Labor Relations Department would be confidential, SSSA did not agree to waive its right to allege that an employee in a civil service title represented by it was performing work outside that title.” (Id. ¶ 17.)
The Court disagrees. As petitioner itself acknowledges, Civil Service Law § 214 does not permit a confidential employee to be a member of an employee organization in which employees of the same employer are members. (See Matter of Shelofsky v. Helsby, 39 A.D.2d 168, 169 [3d Dept 1972], affd, 32 N.Y.2d 54 [1973].) That is, the statute does not permit a confidential employee to be a member of a union such as the SSSA. Indeed, the agreement dated January 2, 1980 unambiguously states not only that the employees in the Labor Relations Department are confidential employees, but also that these positions are not represented by a union. Therefore, the CBA and the agreement dated January 2, 1980 must be read together, and the agreement must be regarded as controlling.
Contrary to petitioner's arguments, the analysis of the interplay between the agreement dated January 2, 1980 and the CBA is not an issue of waiver of contractual rights of the CBA. The agreement dated January 2, 1980 predates the CBA. Rather, the agreement dated January 2, 1980 must be read, in effect, to exclude those confidential employees in the civil service titles covered under the recognition clause of the CBA. Otherwise, the CBA, by its own terms, would include employees that cannot, by statute, be part of the SSSA.
Thus, the Court agrees with respondent that, when a Station Supervisor Level I is working in the Labor Relations Department, that employee is not represented by a union. Put differently, an employee in a civil service title among the titles covered under the CBA is nevertheless excluded from the CBA, when that employee becomes a confidential employee. Consequently, a complaint on the part of these three confidential employees does not fall within the definition of a “Grievance” under the CBA.
Petitioner attempts to draw a distinction between representation rights and contractual rights. That is, petitioner appears to argue that, even though the three confidential employees cannot be represented by petitioner, the three confidential employees are nevertheless entitled to the grievance procedures under the CBA. Petitioner cites no authority for the proposition that employees who are barred by statute from being a member in a union would nevertheless be covered under the terms and conditions of that union's CBA.
Petitioner's reliance on Matter of Unified Court System of the State of New York v. Court Attorneys Association (17 Misc.3d 606 [Sup Ct, N.Y. County 2007] ) is misplaced. There, the Unified Court System created a new title, Supervising Court Attorney, which it designated as managerial. The Court Attorneys Association filed a grievance, alleging that it was entitled to represent the court attorneys hired in the Supervising Court Attorney title, and sought arbitration of the grievance. The issue presented there was whether the dispute must be determined by the Public Employment Relations Board (PERB) or may be determined by arbitration.
The court compelled arbitration. The court reasoned that, while PERB may have jurisdiction to decide issues of whether the managerial/confidential designation was correct, nothing in Civil Service Law § 205 designated PERB as the exclusive forum to resolve the factual controversy raised by the union. The court compelled arbitration because the grievance fell within the definition of a grievance under Article 17 of the parties' collective bargaining agreement.
Matter of Unified Court System v. Court Attorneys Association is inapposite because the issue presented in that case is not the same issue presented here. Petitioner is not challenging the designation of employees who work in the Labor Relations Department as confidential employees. Indeed, respondent points out that the agreement dated January 2, 1980 was intended to settle a dispute that was brought before PERB.
As discussed above, this Court has ruled that the three employees are not members of the SAAA. “[A] union may invoke grievance and arbitration procedures on behalf of a nonmember whose treatment by a common employer may adversely affect the position of its own members” (Matter of Board of Educ. of Bedford Cent. School Dist. [Bedford Teachers Assn.], 67 A.D.2d 474, 477 [2d Dept 1979].) However, petitioner does not contend that here.
Neither does this matter involve a grievance for post-employment entitlements under the CBA, where the broad grievance clause entitles respondent to pursue arbitration on behalf of former union members for such benefits (see e.g. Matter of Peters v. Union–Endicott Cent. School Dist., 77 AD3d 1236, 1238 [3d Dept 2010] ; Matter of City of Ithaca [Ithaca Paid Fire Fighters Assn., IAFF, Local 737], 29 AD3d 1129, 1132 [3d Dept 2006] ; Ledain v. Town of Ontario, 192 Misc.2d 247, 253–54 [Sup Ct, Wayne County 2002], affd, 305 A.D.2d 1094 [4th Dept 2003] ). Nor does this matter involve a situation “where the events predicating a contract grievance arose at the time an individual was an active employee and thus a member of the bargaining unit.” (Ledain, 192 Misc.2d at 253–54.)
In sum, petitioner may not file a grievance on behalf of the three employees named in the grievance because they are not union members, and the petitioner has not shown that the grievance involves a situation where the petitioner may file a grievance on behalf of non-members or former members.
According to petitioner, PERB does not have jurisdiction to determine whether confidential or managerial employees are working out-of-title. To the extent that petitioner appears to contend that the three individual employees would be left without a remedy if respondent is not compelled to arbitrate the grievance, respondent maintains that confidential employees may bring a special proceeding on their own, alleging violation of Civil Service Law § 61, which prohibits out-of-title work. (See e.g. Matter of Sheridan v. Kennedy, 19 Misc.2d 765 [Sup Ct, N.Y. County 1959], affd 10 A.D.2d 606 [1st Dept 1960], affd 8 N.Y.2d 794 [1960].)
A grievance alleging out-of-title work is a matter that is routinely heard by arbitrators, whose specialized experience and familiarity with civil service matters may perhaps make them better suited to hear such disputes.
Finally, petitioner asserts that, based on the employment dates provided in respondent's submissions, one of the employees, Dawn Hicks, “was designated confidential prematurely.” (Petitioner's Reply ¶ 14.) According to petitioner, Dawn Hicks “was assigned to labor relations effective June 17, 2015, a time during which SSSA was entitled to a period of unchallenged representation' pursuant to Section 208(2) of the Taylor Law.” (Id. ) This argument lacks merit. That portion of Civil Service Law § 208(2) which grants a recognized employee organization “unchallenged representation status” “applies only to labor representation that has been challenged by another organization.” (Town of Kent Police Benevolent Assn., v. Town of Kent, 42 A.D.2d 747, 747 [2d Dept 1973].)
Contrary to petitioner's contention, respondent stated that Dawn Hicks “began her appointment in Labor Relations on January 4, 2015,” not on June 17, 2015. (Verified Answer ¶ 31; Latimer Affirm. ¶ 12.)
Therefore, the respondent's cross motion to dismiss the petition is granted.
CONCLUSION
Accordingly, it is hereby
ORDERED that respondent's cross motion to dismiss the petition to compel arbitration is granted; and it is further
ADJUDGED that this petition is denied and the proceeding is dismissed.