CBA requires exhaustion of administrative remedies prior to filing Article 78 petition
Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts
Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts
Matter of Julicher v Town of Tonawanda, 2009 NY Slip Op 03273, Decided on April 24, 2009, Appellate Division, Fourth Department
Dismissed from his position, Joseph J. Julicher filed a grievance in accordance with the grievance and arbitration procedure set out in the relevant the collective bargaining agreement between the Tonawanda and Julicher’s union. Before completing the grievance and arbitration procedure in which he challenged his termination by the Town, Julicher filed a petition pursuant to CPLR Article 78 in an effort to obtain a court order annulling his dismissal.
The Appellate Division said that Supreme Court’s granting Julicher’s petition was incorrect and unanimously reversed the lower court’s ruling and dismissed Julicher’s lawsuit.
The Appellate Division said that "[W]here[, as here], a collective bargaining agreement requires that a particular dispute be resolved pursuant to a grievance procedure, an employee's failure to grieve will constitute a failure to exhaust [administrative remedies], thereby precluding relief under CPLR Article 78."
Although Julicher commenced the grievance and arbitration procedure pursuant to the collective bargaining agreement, he failed to complete the procedure before commencing legal action and thus he failed to exhaust his administrative remedies.
N.B. In this instance, the grievant filed the petition seeking judicial relief pursuant to Article 78 of the CPLR. Presumably any challenge to an arbitrator’s determination, had the grievant not discontinued his or her participation in the grievance procedure, would have been brought pursuant to Article 75 of the CPLR.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03273.htm
Matter of Julicher v Town of Tonawanda, 2009 NY Slip Op 03273, Decided on April 24, 2009, Appellate Division, Fourth Department
Dismissed from his position, Joseph J. Julicher filed a grievance in accordance with the grievance and arbitration procedure set out in the relevant the collective bargaining agreement between the Tonawanda and Julicher’s union. Before completing the grievance and arbitration procedure in which he challenged his termination by the Town, Julicher filed a petition pursuant to CPLR Article 78 in an effort to obtain a court order annulling his dismissal.
The Appellate Division said that Supreme Court’s granting Julicher’s petition was incorrect and unanimously reversed the lower court’s ruling and dismissed Julicher’s lawsuit.
The Appellate Division said that "[W]here[, as here], a collective bargaining agreement requires that a particular dispute be resolved pursuant to a grievance procedure, an employee's failure to grieve will constitute a failure to exhaust [administrative remedies], thereby precluding relief under CPLR Article 78."
Although Julicher commenced the grievance and arbitration procedure pursuant to the collective bargaining agreement, he failed to complete the procedure before commencing legal action and thus he failed to exhaust his administrative remedies.
N.B. In this instance, the grievant filed the petition seeking judicial relief pursuant to Article 78 of the CPLR. Presumably any challenge to an arbitrator’s determination, had the grievant not discontinued his or her participation in the grievance procedure, would have been brought pursuant to Article 75 of the CPLR.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03273.htm
