In the Matter of Michelle Widrick, Appellant; Michael Carpinelli,, et al., Respondents.BriefN.Y.June 25, 2018To be Argued by: Frank W Miller, Esq. Time Requested: 10 Minutes Meta f9ot(s Huipremo Court appellate BtbtSton- Jfourtf) jBeparttnent MICHELLE WIDRICK, Petitioner-Respondent, v. SHERIFF MICHAEL CARPINELLI, LEWIS COUNTY SHERIFF’S DEPARTMENT, and LEWIS COUNTY ATTORNEY’S OFFICE Respondents-Appellants. Index No.: CA2016-000032 Appeal Docket No.: BRIEF ON APPEAL For Respondents -Appellants The Law Firm of Frank W. Miller Attorneys for Defendants-Respondents 6575 Kirkville Road East Syracuse, New York 13057 Tel: (315)234-9900 O’Hara, O’Connell & Ciotoli Attorneys for Petitioner-Respondent 7207 East Genesee Street Fayetteville, New York 13066-1262 Tel: (315)451-3810 TABLE OF CONTENTS PRELIMINARY STATEMENT. 1 .4QUESTIONS PRESENTED .5ARGUMENT. POINT I PETITIONER HAS NOT MADE A VALID DEMAND TO ARBITRATE AND THEREFORE, THE COURT BELOW LACKED JURISDICTION TO CONSIDER THE PETITION.. . .5 Petitioner has Failed to Comply with CPLR § 7503(c) ,5A. Petitioner’s Letter of November 29, 2015 Did Not Request Arbitration and Therefore Does Not Constitute a “Notice of Intent to Arbitrate” B. 6 Counsel’s Letter of November 30, 2015 Did Not Comply with CPLR § 7503(c) and Therefore is Void C. .9 Counsel’s Letter of December 9, 2015 Did Not Comply with CPLR § 7503(c) and Therefore is Void D. 11 POINT II PETITIONER’S CORRESPONDENCE WAS NOT SERVED IN ACCORDANCE WITH CPLR 7503 AND THEREFORE CANNOT INVOKE THE COURT’S JURISDICTION TO COMPEL ARBITRATION 12 POINT III THE COURT BELOW ERRED WHEN IT DEFERRED ALL QUESTIONS REGARDING THE FORM OR MANNER OF SERVICE TO THE ARBITRATOR 13 POINT IV THE PETITIONER LACKS STANDING TO ENFORCE THE COLLECTIVE BARGAINING AGREEMENT 14 POINT V THERE IS NO AGREEMENT TO ARBITRATE BETWEEN PETITIONER AND THE LEWIS COUNTY SHERIFF’S DEPARTMENT 20 POINT VI PETITIONER HAS NOT COMPLIED WITH THE CONDITIONS PRECEDENT TO ARBITRATION CONTAINED WITHIN THE CBA .21 I .24CONCLUSION 11 TABLE OF AUTHORITIES Cases Albala v. County of Nassau, 270 A.D.2d 482 (2d Dep't 2000) Barnes v. Council 82, AFSCME ex rel. Monroe, 94 N.Y.2d 719 (2000) Biegel v Board of Education, 211 A.D.2d 969 (3rd Dept., 1995) Blamowski v. Munson Transp., Inc., 91 N.Y.2d 190 (1997) Board of Education v. Ambach, 70 N.Y.2d 501 (1987) cert denied 485 US 1034 1988) Board of Education v. Ambach, supra at page 509 Calka v. Tobin Packing Co., 9 A.D.2d 820, 822 (3d Dep't 1959) app. den’d. 10 A.D.2d 776 (3d Dep't 1960) Cartier v. County of Nassau, 281 A.D.2d 477 (2d Dep’t 2001) Chupka v. Lorenz-Schneider Co., 12 N.Y.2d 1 (1962) Clark v. County of Cayuga, 212 A.D.2d 963 (4th Dept., 1995) Cooper v. Bruckner, 21 A.D.3d 758 (1st Dep’t 2005) County of Rockland v. Primiano Constr. Co.,51 N.Y.2d 1 (1980) In Re Greenburgh, 125 A.D.2d 315 (2d Dep't 1986) . Matter of City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 136 A.D.3d813 at 815 (2d Dep't 2016) . Matter of Reese v. Board of Trustees of Mohawk Valley Community College, 28 A.D.3d 1240 (4th Dept., 2006) Michael F. Wolfson, M.D., M.P.H. v. Preventative Medicine Clinical Servs., 26 A.D.3d 751 (4th Dep't 2006) New York City Tr. Auth. v. Gorrick, 72 A.D.3d 518 (1st Dep’t 2010) N. Y. Central Mutual Fire Ins. Co. v. Czumaj, 9 A.D.3d 833 (4th Dep’t 2004) Prendergast v Kingston City School District, 242 A.D.2d 773 (3rd Dept, 1997) Spychalski v. Continental Ins. Cos., 58 A.D.2d 193 (4th Dep’t 1977) aff d 45 N.Y.2d 847 (1978)....13 Suffolk Regional OTB vs. Local 5I7S, 270 A.D.2d 351 (2nd Dep’t 2000) Yak Taxi, Inc. v. Teke, 41 NY2d 1020 (1977) 15 .23 .20 13, 14, 23 .14, 15, 19 18 15 13 15 19 13 .20, 23, 24 23 10,11, 12,24 19 14, 15 15 12, 13 .20 22, 23, 24 .13 Statutes .3, 4, 5, 6, 9, 10, 11, 12, 13 and 14 3,6,10,22 14,15 14,15 CPLR § 7503(c) CPLR Article 75 CPLR 7511(b) CPLR 7511(b)(2) CPLR Article 78 Civil Service Law Section 75 Civil Service Law § 200 Civil Service Law § 203 Civil Service Law §204(2) Civil Service Law § 209-a(l)[d] and [g] .20 .2, 7, 8, 25 .15 18 .17 18 iii PRELIMINARY STATEMENT Hie Respondents Appellants, SHERIFF MICHAEL CARPINELLI, THE LEWIS COUNTY SHERIFF’S DEPARTMENT, and the LEWIS COUNTY ATTORNEYS OFFICE (herein collectively the “Sheriff” or “Appellants”) bring this appeal to reverse the Order of the Hon. Charles C. Merrell, dated December 20, 2015 (with Decision annexed, dated November 30, 2016). (RA 7-21) (herein collectively the “Decision”). The Petitioner-Respondent (herein “Petitioner”) is a former dispatcher with the Sheriff’s Department. After an investigation into certain activities of the Petitioner and another deputy that occurred on August 17, 2015, the Sheriff concluded that the Petitioner had lied about her conduct during the course of his investigation. Upon the Petitioner’s return from a leave of absence, the Sheriff notified her by letter dated November 18, 2015, that she was terminated effective immediately. (RA 88). Petitioner is a member of the Lewis County Sheriffs Employee’s Unit, Local 825 of the Civil Service Employee Association (herein “CSEA”). (RA 31-54). CSEA and the Appellants have entered into a collective bargaining agreement (“CBA”) (RA 31-54). Article I, Section 1 of the CBA recognizes CSEA as the exclusive bargaining agent for the members, including the Petitioner. The CBA provides in pertinent part: Lewis County recognizes the Lewis County Sheriff’s Employee’s Unit Local 825 of the Civil Service Employees’ Association, Inc., as the exclusive representative for collective negotiations of salaries, wages, hours, and all other terms and conditions of employment . . . (RA 34) The CBA further provides that upon receipt of a notice of discipline or discharge, an employee has five (business) days in which to challenge the discipline and to elect whether to proceed under the 1 contractual grievance and arbitration procedures or to proceed under Section 75 of the Civil Service Law. Article XXIII, Section 2 of the CBA provides in relevant part: . . . Any disciplinary action or measure imposed upon an employee may be processed as a grievance under the regular grievance procedure (including the arbitration step if necessary). If such employee is covered by Section 75 of the Civil Service Law, it may be processed either by the grievance and arbitration procedure or by a hearing as provided by said section of the Civil Service Law, as such employee may elect. The election of either procedure precludes the use of the other. A. B. Such employee must indicate in writing to the Department Head within Five Work Days of notification that disciplinary action is being imposed, that he/she elects either to exercise his/her rights under the grievance and arbitration procedure or their rights provided by § 75. Failure to exercise such option provided will automatically foreclose use of the grievance and arbitration procedure. (RA 53). The grievance and arbitration procedure is set forth in Article IV of the CBA, and provides for a three-step grievance process, the last step of which is arbitration. Section 5 thereof states: Should the Department Head’s decision not be acceptable to CSEA, then CSEA shall have the right within thirty (30) days of the decision to proceed to binding arbitration as conducted by PERB, the Public Employment Relations Board. The cost of the proceeding shall be shared jointly between the County and CSEA. (Emphasis added) (RA 39). On November 29, 2015, eight business days after receiving her notice of termination, and three days after the time limit specified in the CBA, Petitioner sent a letter via e-mail to the County Attorney advising that she wished to grieve her termination under the applicable provisions of the CBA. (RA 93). Contrary to the terms of the CBA, Petitioner’s letter indicated that she was grieving her termination in her own name through her retained counsel, not through the auspices of CSEA, her exclusive collective bargaining agent. The next day, November 30, 2015, Petitioner’s attorneys issued a letter by telefax to the County Attorney requesting that the County initiate arbitration proceedings through the American Arbitration Association. (RA 100). Again, contrary to the terms of the CBA, Petitioner’s attorneys made it clear 2 that Petitioner was proceeding in her own name and without any representation by CSEA. Also, contrary to Article IV, Section 5, quoted above, Petitioner’s attorneys sought to have the grievance arbitrated through the American Arbitration Association and not the Public Employment Relations Board, as required by the contract. In addition, the November 30 counsel’s letter did not comply with CPLR § 7503(c) in that it was not served in the same maimer as a summons or by certified mail return receipt requested as required by statue, nor did the November 30 letter contain the notice provisions required therein. Because neither Petitioner’s letter of November 29th nor her attorneys’ letter of November 30th complied in any respect with the terms of the CBA or CPLR § 7503(c), the Appellants considered the correspondence a nullity. Petitioner’s counsel wrote to the County Attorney by telefax again on December 9, 2015 indicating that if they did not receive a response from the Appellant by December 11,2015, they would commence a proceeding under CPLR Article 75 to compel arbitration. (RA 101). Petitioner’s counsel repeated the same fundamental errors from their previous letter, i.e, they indicated that the Petitioner was proceeding in her own right without any participation from the CSEA and they requested that the arbitration proceed under the American Arbitration Association. The County Attorney responded on December 10, 2015, that there was no recognized grievance filed with the County and therefore the matter was considered closed. (RA 102). Petitioner thereafter commenced the within proceeding to compel arbitration. (RA 26-93). Appellants brought a cross-motion to dismiss the Petition and to permanently stay arbitration on the grounds that (i) there was no valid notice of intent to arbitrate, (ii) the letters Petitioner purported to constitute her notice of intent to arbitrate did not contain the requisite notices required by CPLR § 7503(c), (iii) the letters Petitioner purported to constitute her notice of intent to arbitrate were not served in accordance with CPLR § 7503(c), (iv) the Petitioner lacked standing to prosecute the 3 arbitration in her own name, (v) there is no agreement to arbitrate between the Petitioner and the Appellants, (vi) Petitioner had not complied with the terms of the CBA in that she failed to fulfill the conditions precedent to arbitration, including failing to timely initiate the grievance of her termination, and (vii) there is no agreement to arbitrate employee matters before AAA. (RA 103-114). The Court below in its Decision, ignored all of the Appellants’ objections and arguments and granted the Petition. Appellants contend that the Court below misconstrued the applicable provisions of the CBA and misapplied the law. For the reasons outlined below, the Appellants respectfully demand that the Court's Decision and Order be reversed, the Petition herein be dismissed in all respects, and Appellants’ cross-motion for a permanent stay of arbitration be granted. QUESTIONS PRESENTED WHETHER PETITIONER’S CORRESPONDENCE CONSTITUTED A VALID NOTICE OF INTENT TO ARBITRATE. I. ANSWER: Although the Court below acknowledged that neither Petitioner’s letter of November 29, 2015 nor her attorneys’ letter of November 30, 2015 complied with CPLR § 7503(c), the Court nevertheless held that her attorneys’ letter was a sufficient “demand for arbitration” upon which to compel arbitration. The Court further held that all issues as to the form or manner of service of the notice was for the arbitrator to decide. Appellants contend that failure to comply with the requirements of CPLR § 7503(c) renders the so-called notices void and deprived the Court of jurisdiction to hear the Petition. For that reason, the Court’s Decision must be reversed and the stay of arbitration granted. II. WHETHER PETITIONER HAS STANDING TO COMPEL ARBITRATION. ANSWER: The Court below erroneously held that Petitioner was authorized under the parties’ collective bargaining agreement to arbitrate her dispute in her own name. In so holding, the Court failed to acknowledge the clear and unequivocal terms contained in Article IV, Section 5 of the collective bargaining agreement which provides that CSEA, and not the employee, is the exclusive agent for litigating an employee grievance to arbitration. Appellants contend that the Court below misinterpreted the contract and applicable law and therefore the Court’s Decision must be reversed. 4 m. WHETHER THERE IS AN AGREEMENT TO ARBITRATE BETWEEN PETITIONER AND THE APPELLANTS. ANSWER: Fundamental to a proceeding to compel arbitration is that the parties must have agreed to arbitrate their dispute. Petitioner herein has opted to litigate this proceeding in her own name despite the fact that there is no contract between the Petitioner and Appellants. The Court below ignored this issue entirely and granted Petitioner’s motion to compel arbitration. Appellants maintain that there is no contract between the Petitioner and Appellants and therefore no basis on which to compel arbitration. For this reason, the Decision below must be reversed. IV. WHETHER PETITIONER COMPLIED WITH THE CONDITIONS PRECEDENT TO ARBITRATION AS CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT. ANSWER: The Court below improperly determined that there were no conditions precedent to consider, including the timeliness of Petitioner's notification to the County of her election to grieve her termination. Therefore, the Court held that any issues as to timeliness was for the arbitrator to determine. Appellant contends this was error. WHETHER PETITIONER COMPLIED WITH THE CONTRACT WHEN SHE REQUESTED ARBITRATION THROUGH THE AMERICAN ARBITRATION ASSOCIATION. V. ANSWER: The Court below acknowledged that Petitioner’s demand to arbitrate through the American Arbitration Association was incorrect but found that the error was insignificant, Appellants contend that the request to arbitrate before the American Arbitration Association was a concerted effort on the part Petitioner to avoid the requirements of the CBA and demonstrated a fundamental failure to comply with its terms. Accordingly, the Appellants maintain that the Petitioner’s request cannot be relied upon as a valid demand for arbitration and therefore there is no jurisdiction on which to compel arbitration. The Court’s Decision must therefore be overturned. ARGUMENT POINT I PETITIONER HAS NOT MADE A VALID DEMAND TO ARBITRATE AND THEREFORE, THE COURT BELOW LACKED JURISDICTION TO CONSIDER THE PETITION A. Petitioner has Failed to Comply with CPLR § 7503(c). 5 To be entitled to compel arbitration, Petitioner must first demonstrate that she has fulfilled the conditions to arbitrate under both GPLR Article 75 and the terms and conditions of the applicable CBA. Petitioner has done neither. CPLR §7503, Subdivision “c”, specifies that prior to making an application to compel arbitration, a party must first serve a notice of intent to arbitrate. The Notice of Intent to Arbitrate must (i) specify the agreement pursuant to which arbitration in sought; (ii) specify the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation; and (iii) state that “unless the party served applies to stay arbitration within twenty days after such service, he shall thereafter be precluded from objecting that a valid agreement has not been made or has not been complied with and from asserting in Court the bar of a limitation of time”. Furthermore, the statute requires that the notice must be served in the same manner as a summons or by registered or certified mail, return receipt requested. As will be seen below, none of the statutory requirements have been met, and therefore there is no basis for the Court below to have granted the petition. B. Petitioner’s Letter of November 29, 2015 Did Not Request Arbitration and Therefore Does Not Constitute a “Notice of Intent to Arbitrate”. Here, the Petitioner sent a letter to the County via e-mail on November 29, 2015, indicating that she wished to grieve her termination under the grievance and arbitration provisions of the CBA. (RA 93). She stated: I hereby exercise my right to grieve the termination of my employment pursuant to Article XXIII, section 2(B) of the collective bargaining agreement... (Emphasis added). (RA93) This letter is apparently the Petitioner’s attempt to comply (although untimely) with Article XXIII, Section 2(b) of the CBA, which provides: 6 Such employee must indicate in writing to the Department Head within Five Work Days of notification that disciplinary action is being imposed, that he/she elects either to exercise his/her rights under the grievance and arbitration procedure or their rights provided by § 75. Failure to exercise such option provided will automatically foreclose use of the grievance and arbitration procedure. (RA 53). In her letter, Petitioner does not demand arbitration but instead expresses her intent to initiate the grievance and arbitration process under the CBA. The grievance procedure under this CBA is a three-step process culminating in an arbitration but only in the event that the first two steps do not resolve the issue (and only the event that CSEA has determined that the grievance should be arbitrated). Article IV provides at Section 4: Informal Resolution of Disputes. Before any dispute may be submitted to this grievance procedure, the employee shall attempt to resolve the dispute by discussing the dispute with the employee’s immediate supervisor. That supervisor shall take whatever steps the supervisor feels is necessary to investigate the dispute, but must, in all cases, respond to the employee within five (5) business days of the initial decision. . . A. Presentation of grievance. An employee who cannot informally resolve a dispute with his or her immediate supervisor shall present a written grievance to his or her Department Head within seven (7) days after the immediate supervisor’s response. CSEA shall provide a copy of the grievance to the County Manager and/or his or her designee. The grievance shall contain a statement of the specific nature of the grievance and the facts related to it----(RA 38). B. It is only in the event that the forgoing procedures do not result in a resolution of the dispute that it becomes ripe for arbitration under Section 5: Should the Department Head’s decision not be acceptable to CSEA, then CSEA shall have the right within thirty (30) days of the decision to proceed to binding arbitration as conducted by PERB, the Public Employment Relations Board. The cost of the proceeding shall be shared jointly between the County and CSEA. (Emphasis added) (RA 39). Petitioner’s letter of November 29 on its face does not reference Section 5 of Article IV and does not demand arbitration. (RA 93) By its terms, Petitioner’s letter requests the commencement of the grievance process under the Article XXIII, Section 2(B) as distinguished from the hearing process under Civil Service Law Section 75. Thus, Petitioner’s letter merely identifies the procedural 7 mechanism under which the Petitioner has elected to proceed. Compliance with the literal terms of Petitioner’s letter would have required only that the Appellants acknowledge that a grievance has been filed, and allowing the Petitioner to present a written grievance to the Sheriff explaining her reasons why she should not be terminated. There is nothing in the content of Petitioner’s letter that even suggests that Petitioner was relying upon that letter alone as a means of commencing an arbitration proceeding. It cannot reasonably be disputed that under Article IV of the parties’ CBA commencement of a grievance does not automatically result in an arbitration. It follows that not all matters of employee discipline or discharge may result in an arbitration. Therefore, Petitioner’s letter of November 29, 2015 cannot be deemed a “notice of intent to arbitrate” as it does not in fact demand arbitration within its contents, nor does it reference the arbitration provision of the CBA. The Court below mistakenly assumed that the Petitioner’s notice of her election to proceed with the grievance and arbitration process “effectively constitutes the demand for arbitration”. (See, Decision, page 12, RA 21). The Court does not explain how it reached that conclusion except to say that there are no other notices mentioned in Article XXIII. Such a conclusion, however, conflicts with the clear and logical flow of Article XXIII. It is clear that Article XXIII is intended to cover all manner of employee discipline and discharges that may possibly arise within the bargaining unit. Article XXIII is entitled “Discharge and Discipline”. The Article refers to Section 75 of the Civil Service Law which also by its clear terms applies to both discipline and discharge. Significantly, Article XXIII does not create one set of procedures for discipline cases and another for employee terminations. Under the Court’s interpretation, an employee who is subject to discipline only who gives the appropriate notice would proceed under the grievance and arbitration provisions of Article IV. However, in the event of an employee termination, the Court below would 8 consider the employee’s notice of election to proceed under the grievance and arbitration process as an instant demand for arbitration. The Court has thus created an entirely new procedure that was not contemplated by the parties, nor can it be found within the four comers of the contract itself. For these reasons, the Appellants contend that Petitioner’s letter of November 29, 2015 by its own terms did not request arbitration and therefore cannot be deemed a notice of intent to arbitrate. Moreover, Petitioner’s letter did not contain the 20-day notice as required by CPLR § 7503(c). Accordingly, Petitioner’s letter fails to lay the proper predicate to compel arbitration. Counsel’s Letter of November 30, 2015 Did Not Comply with CPLR § 7503(c) and Therefore is Void. C. The next day, November 30, 2015, Petitioner’s attorneys sent a letter via facsimile to the County Attorney requesting that the County “initiate” the arbitration process by contacting the American Arbitration Association. Petitioner’s counsel stated: We are aware that Ms. Widrick advised you in writing of her election to grieve her termination which is her right under Article XXIII section (2) (B) of the collective bargaining agreement. Please contact the American Arbitration Association to initiate the process for appointing an arbitrator. (RA 100). This letter does not contain any of the information required by CPLR § 7503(c). It does not specify the contract that gives rise to the agreement to arbitrate, nor does it contain the statutory 20- day notice. To be clear, there is no contract between the Petitioner and the Appellants. Accordingly, there is no agreement to arbitrate that exists between the Petitioner, individually and the Appellants. It is presumed that the reference in this letter to “Article XXIII section (2) (B) of the collective bargaining agreement”, is referring to a provision contained in the collective bargaining agreement between Lewis County and CSEA. Although Petitioner is a member of CSEA, she is not a “party” to that contract. It follows that the reference to “Article XXIII” is not a reference to any contract that exists between the Petitioner, individually and the Appellants which gives Petitioner a right to arbitration. Thus, 9 counsel’s November 30 letter does not provide even the bare minimum of information required under CPLR Article 75. Further, Petitioner’s counsel requests that the matter be arbitrated under the auspices of the American Arbitration Association. Petitioner’s counsel cites to no authority for such a request, as the contract requires that all arbitrations go before the Public Employment Relations Board. The parties have no contract with the American Arbitration Association and there is no basis for Petitioner’s counsel to request that the arbitration proceed in that forum. The Court below held that the reference to the American Arbitration Association was a nominal error on the grounds that CPLR § 7503(c) does not require notice of the arbitration forum. This misses the point. An employee’s effort to litigate an arbitration in the wrong forum in violation of the collective bargaining agreement is void. See, Matter of City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 136 A.D.3d 813 at 815 (2d Dep’t 2016). To the extent that counsel is attempting to reference the CBA between the County and CSEA, that contract specifically provides: Section 5. Arbitration. Should the Department Head’s decision not be acceptable to CSEA, CSEA shall have the right, within thirty (30) days of the decision, to proceed to binding arbitration as conducted by PERB, the Public Employment Relations Board. The cost of the proceeding shall be shared jointly by the County and CSEA. (See, Article IV, Section 5, RA 39) It is readily apparent that the only agreement to arbitrate in this instance exists between the County and CSEA and in that agreement, the parties have agreed to arbitrate employee issues before the Public Employment Relations Board and not the American Arbitration Association. Therefore, Petitioner’s attorneys’ letter of November 30, 2015 did not comply in any way with the requirements of CPLR § 7503(c). On its face, the November 30 letter asked the County to take an action (i.e., arbitrate a dispute between an employee and the County before the American Arbitration 10 Association) for which the County had no obligation to perform. Accordingly, the County treated the November 30 letter as a nullity and did not respond. The Court below erred in treating the letter any differently and therefore should be overruled. D. Counsel’s Letter of December 9, 2015 Did Not Comply with CPLR § 7503(c) and Therefore is Void. Petitioner’s attorneys followed with another letter on December 9, 2015. (RA 101) This too was sent via facsimile to the County Attorney. The December 9 letter references counsel’s previous correspondence of November 30th, but again fails to contain the information required by CPLR § 7503(c). Moreover, counsel’s December 9 correspondence repeats again the request the County contact the American Arbitration Association and states that if counsel does not hear from the County by December 11, they will bring a proceeding to compel arbitration pursuant to CPLR § 7503. (RA 101). By attempting a second time to coerce the County in proceeding under the American Arbitration Association, Petitioner has shown more than a simple ministerial error in selecting an arbitrator. This shows a deliberate attempt at commencing this proceeding in the wrong forum. Such an error goes beyond mere inadvertence and is jurisdictional. In Matter of City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 136 A.D.3d 813 (2d Dep't 2016), the Appellate Division, Second Department held that a demand for arbitration that seeks arbitration before the wrong forum is void and cannot be relied upon as invoking any rights under a collective bargaining agreement. As was noted by the court in City of Long Beach, the Petitioner’s multiple efforts to seek arbitration before the American Arbitration Association should be deemed a “ considered decision to invoke the jurisdiction of the other forum” and not just a ministerial error. Matter of City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, supra.at p. 815. 11 For all of these reasons, the so-called notices issued by or on behalf of the Petitioner should be disregarded entirely as not fulfilling any of the requirements of CPLR § 7503(c). Accordingly, the Court below committed reversible error in granting the petition and must be overturned. POINT II PETITIONER’S CORRESPONDENCE WAS NOT SERVED IN ACCORDANCE WITH CPLR 7503 AND THEREFORE CANNOT INVOKE THE COURT’S JURISDICTION TO COMPEL ARBITRATION Even if the numerous and egregious errors in the content of the letters issued on behalf of Petitioner are overlooked, it is undisputed that none of the letters were served in the manner proscribed by CPLR § 7503(c). Accordingly, the letters must be deemed void. As discussed above, Petitioner’s initial letter to the County was sent via e-mail. The two letters from her attorneys that followed were sent via facsimile. None of these methods of service meet the requirements of CPLR § 7503(c) and therefore none of the letters can be considered as an effective “notice of intent to arbitrate” as contemplated by the statue. CPLR § 7503(c) requires that notice of intent to arbitrate must be served “in the same manner as a summons or by registered mail, return receipt requested.” The Court below held that deficiencies in the manner of service did not invalidate the notice but had the effect of tolling the statute of limitations. (RA 14-15). This was clear error. Where the demand for arbitration is not served in accordance with the requirements of CPLR § 7503(c), it deprives the court of jurisdiction to hear the petition to compel arbitration. See, N. Y. Central Mutual Fire Ins. Co. v. Czumaj, 9 A.D.3d 833 (4th Dep’t 2004). In N. Y. Central Mutual, the petitioner served a demand for arbitration via Federal Express with signature required. The Appellate Division, Fourth Department, held that despite the fact that service in that manner virtually guaranteed 12 that the respondent actually received the notice, the manner of service did not comply with strict requirements of the statute. The arbitration was therefore stayed. In like fashion, the courts have routinely held that service by ordinary mail is insufficient to invoke the jurisdiction of CPLR § 7503(c). See, Yak Taxi, Inc. v. Teke, 41 NY2d 1020 (1977); Spychalski v. Continental Ins. Cos., 58 A.D.2d 193 (4th Dep’t 1977) afFd 45 N.Y.2d 847 (1978); Cartier v. County of Nassau, 281 A.D.2d 477 (2d Dep’t 2001). Here, it is undisputed that the letters relied upon by the Petitioner in this proceeding were served either by e-mail or by facsimile. None of those methods of service comply with CPLR § 7503(c). Accordingly, the Court below erred when it overlooked this jurisdictional barrier and ruled on the Petition. For these reasons, the Court’s Decision and Order below must be reversed and the stay of arbitration granted. See, N. Y. Central Mutual Fire Ins. Co. v. Czumaj, 9 A.D.3d 833 (4th Dep’t 2004). POINT in THE COURT BELOW ERRED WHEN IT DEFERRED ALL QUESTION REGARDING THE FORM OR MANNER OF SERVICE TO THE ARBITRATOR The Court below acknowledged that neither the content and nor the manner of service of Petitioner's correspondence complied with the strictures of CPLR §7503(c). (RA 14) Nevertheless, the Court held that defects in the form or service is for the arbitrator, relying upon the case of Cooper v. Bruckner, 21 A.D.3d 758 (1st Dep't 2005). Appellants contend this was error. The court in Cooper held that the failure to include the requisite 20-day warning did not render the notice invalid, but rather ineffective to preclude the respondent from raising threshold challenges after the 20-day time limit. Appellants contend that the instant case is more analogous to that of Blamowski v. Munson Transp., Inc., 91 N.Y.2d 190 (1997), the Court of Appeals case relied on by the Cooper court. In Blamowski, the demand for arbitration did not include the requisite notice provision and the respondent 13 therein did not participate in the arbitration proceeding. The Court of Appeals held that the respondent could rely on the lack of a notice provision to vacate the resulting award on the ground that it was not served with notice within the meaning of CPLR 7511(b). The Court in Blamowski went on to say that since the petitioner's notice of arbitration did not contain the requisite language of CPLR 7503(c) and, therefore, respondent employer cannot be said to have been 'served with a notice of intention to arbitrate' within the meaning of CPLR 7511(b)(2). (Emphasis added). Blamowski vs. Munson Tires, supra, at 195. The Court thus held that since the respondent had not been properly served with notice of intent to arbitrate, it had no obligation to arbitrate. A similar result should pertain here. The many errors and deficiencies found in Petitioner’s correspondence go beyond mere casual mistakes or misinterpretation of contract provisions. Petitioner has utterly failed to meet any the requirements of either the collective bargaining agreement or CPLR §7503(c). The Court of Appeals in Blamowski,found that the petitioner’s failure to comply with either the collective bargaining agreement or CPLR §7503(c) justified vacating the arbitration award. Similarly, here, Petitioner’s failure to meet either its contractual or statutory obligations requires that Petitioner’s request for arbitration be permanently stayed. POINT IV THE PETITIONER LACKS STANDING TO ENFORCE THE COLLECTIVE BARGAINING AGREEMENT It is well settled in New York State that when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract. Board of Education v. Ambach, 70 N.Y.2d 501 (1987) cert denied 485 US 1034 1988); Michael F. Wolfson, M.D., M.P.H. v. Preventative Medicine Clinical Servs., 26 A.D.3d 751 (4th Dep't 2006). Members of a collective bargaining agreement have no rights 14 independent of the collective bargaining agent. Albala v. County of Nassau, 270 A.D.2d 482 (2d Dep't 2000). An employee has no rights under the collective bargaining agreement, to which only his former employer and union are parties, to unilaterally bring the issue to arbitration. New York City Tr. Auth. v. Gorrick, 72 A.D.3d 518 (1st Dep't 2010). This is a matter of elementary logic; otherwise there would be little purpose in having a collective bargaining agreement if every individual employee could compel management to arbitrate every grievance. Calka v. Tobin Packing Co., 9 A.D.2d 820, 822 (3d Dep't 1959) app. den’d. 10 A.D.2d 776 (3d Dep’t 1960) (citations omitted). The Court of Appeals has long recognized the strong public policy in this State favoring internal grievance mechanisms and the finality of the grievance process in public collective bargaining agreements. It is the policy of this state to “promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. (Civil Service Law §200)” Board of Education v. Ambach, supra at page 509. Permitting individual employees to prosecute alleged violations of the agreement outside the contractual grievance procedure obviously unsettles the finality of grievance determinations that is central to implementation of state policy, and the right to bring such proceedings is therefore restricted. (Id.) (See, also, Chupka v. Lorenz-Schneider Co., 12 N.Y.2d 1 (1962). In the instant case, Article I, Section 1 of the CBA recognizes CSEA as the exclusive bargaining agent for the members, including the Petitioner. The CBA provides in pertinent part: Lewis County recognizes the Lewis County Sheriffs Employee’s Unit Local 825 of the Civil Service Employees’ Association, Inc., as the exclusive representative for collective negotiations of salaries, wages, hours, and all other terms and conditions of employment ... (Emphasis added) (RA 34) It is readily apparent that the Petitioner, MICHELLE WIDRICK is not recognized in that clause as having any authority to negotiate or enforce the terms of the contract independent of the 15 union. Nor does Article I, Section 1 afford to MICHELLE WIDRICK the authority to bring a proceeding to allegedly enforce any rights under the Collective Bargaining Agreement. It is equally evident that employee discipline and discharge is a term and condition of employment that is in fact covered by this contract. This theme is carried over into other representational matters that have been established for the employees’ benefit under the CBA. Under Article II, Section 6: The union and its designated agents shall have the sole and exclusive right to access to members of the bargaining unit during working hours to administer this agreement and to explain Civil Service Employees Association sponsored benefits and programs during the term of this agreement. (Emphasis added) (RA 35) The Employer recognizes the right of the union to designate stewards/grievance representatives. Here, CSEA is given exclusive right of access to the employees for purposes of administering the contract. Additionally, CSEA is granted the exclusive right to designate “grievance representatives”. Grievance representatives are granted following duties and responsibilities to act on behalf of employees: Representing bargaining unit employees in investigations and/interrogations; Representing bargaining unit employees in investigation and filing of a grievance; Representing bargaining unit employees through the grievance procedure. (Article H, Section 6[b], RA 35) Employees who are designated as grievance representatives entitled to paid time off to fulfill their a. b. c. duties. (Article II, Section 6[c]). The grievance process has three steps, the last of which being arbitration. (See, Article IV, RA 38 - 39). Only when the first two steps do not result in a resolution is the dispute ripe for arbitration. However, in that instance, the contract expressly limits access to arbitration to CSEA: Section 5. Arbitration. Should the Department Head’s decision not be acceptable to CSEA, CSEA shall have the right, within thirty (30) days of the decision, to proceed to binding 16 arbitration as conducted by PERB, the Public Employment Relations Board. The cost of the proceeding shall be shared jointly by the County and CSEA. (See, Article IV, Section 5, RA 39) There is no mistaking the intent of the forgoing language. CSEA, not the individual employee, has the sole and exclusive authority to determine what disciplinary matters CSEA wishes to arbitrate. Under these clear and unambiguous terms, there is simply no provision for an employee to independently commence an arbitration proceeding to enforce the terms of the CBA. This conclusion is buttressed by the fact that Article IV, Section 5 makes it clear that the obligation to pay for the cost of thearbitration is shared between CSEA and the County. (RA 39). There is clearly no option for an individual employee to prosecute an arbitration and yet have CSEA pay for the privilege. Among the many other deficiencies contained in Petitioner’s notices, neither the Petitioner nor her counsel even address the costs associated with the arbitration she is seeking. This too evidences her failure to comply with the terms of the CBA and shows her lack of standing in this proceeding. There is a very basic and fundamental reason for these contractual restrictions. Where a public employer has agreed to a Collective Bargaining Agreement, it has thereby accepted the designation of an exclusive agent for the representation of the employees. The concept of exclusivity enshrines the notion that the employer must deal with one entity and one entity alone in the representation of the employees. Under the Taylor Law, that exclusivity extends to the “administration of grievances arising under, the terms and conditions of employment of the public employees”. See, Civil Service Law § 204(2). Under no circumstances is the employer obligated to negotiate with or deal with any entity other than the designated and exclusive bargaining agent. In fact, it is an unfair labor practice for an employer to negotiate directly with the employees and thereby bypass the CSEA as to terms and conditions of employment, including discipline and discharge. (See, Civil Service Law §§ 203, 209- a(l)[d] and [g]). 17 The public policy underpinning these principles is simply that of certainty and finality. The public employer is able to negotiate with a single representative body, the parties are able to effectively negotiate terms and conditions, and employee disciplinary matters are handled with a degree of finality. Board of Education v. Ambach, supra at page 509. This mutual arrangement eliminates any strangers or third parties to the process. Additionally, exclusive representation provides the parties with consistency in the interpretation and application of specific contractual terms. It is not unusual for grievance and arbitration matters to involve disputes over contract interpretation. The union’s ability to ensure a consistent interpretation of the contract on behalf of all employees would be severely undermined if each individual employee were allowed to litigate their own personal interpretations in their own right. The risk of multiple and perhaps even inconsistent applications of the contract would be magnified exponentially in such event. These principles are even more important in the context of employee disciplinary matters. The parties to this CBA have bargained for and received a significant benefit by delegating CSEA as the exclusive agent for litigating arbitrations. The union in this case acts as a “gatekeeper” determining whether a particular dispute is worth the time and expense of arbitrating. Further, as the party responsible for sharing in the cost of the arbitration, it makes sense that CSEA have the decision¬ making authority on whether to take a particular issue to arbitration. Here, Petitioner, acting on her own, and with the assistance of her private attorney, filed this Article 75 petition in an endeavor to compel the employer to arbitrate a claim allegedly under the CBA. Petitioner conveniently neglects to address the fact that she is not a party to the CBA. Her attempt to enforce the terms and conditions of the CBA individually is therefore without authority under the contract and is void. 18 In Clarkv. County of Cayuga,212 A.D.2d 963 (4th Dept, 1995), the AppellateDivision, Fourth Department affirmed this principle and applied it to a suit by a retiree seeking to sue his former employer over alleged non-payment of sick leave accumulation. The Appellate Division, Fourth Department rejected that claim and stated as follows: “Plaintiff has no right to sue his former employer directly for its alleged breach of a Collective Bargaining Agreement that it entered into with the Union of which plaintiff was a member. (See Matter of Board of Education v. Ambach, 70 N.Y.2d 501-508, cert denied sub nom. Margolin v. Board of Education, 485 U.S.1034), unless the agreement provides otherwise, only when the Union fails to represent an employee fairly may the employee go beyond the agreed upon procedure and commence a breach of contract action directly against the employer. (See Matter of Board of Education v. Ambach, supra at 508). As in theClark case, the Petitioner herein does not allege, and has made no showing that CSEA failed to represent her fairly. Thus, there is no basis on which the Petitioner may proceed on this Petition. The Fourth Department reaffirmed these principles in the Matter of Reese v. Board of Trustees of Mohawk Valley Community College, 28 A.D.3d 1240 (4th Dept., 2006). In that case, a college professor had retired from employment. He thereafter commenced an Article 78 petition seeking to enforce his rights to health insurance benefits in accordance with the terms of the Collective Bargaining Agreement. The college moved to dismiss the action. Supreme Court granted the Motion to Dismiss for lack of standing. The Appellate Division, Fourth Department affirmed on appeal, stating: “Supreme Court properly dismissed the petition inasmuch as petitioner lacked standing to bring the instant proceeding against respondents. Petitioner has no right to sue his former employer directly for its alleged breach of a Collective Bargaining Agreement that it entered into with the Union of which petitioner was a member. . . unless the Collective Bargaining Agreement provides otherwise, only when the Union fails to represent an employee fairly may the employee go beyond the agreed upon procedure and commence a CPLR Article 78 proceeding directly against the employer, (citations omitted).” 19 See also, Biegel v Board of Education, 211 A.D.2d 969 (3rd Dept, 1995); Prendergast v Kingston City School District, 242 A.D.2d 773 (3rd Dept, 1997). In instant case, the Court below committed a grievous error when it found that the Petitioner had sufficient standing to bring this action against the County. For her to commence such a proceeding independent of the Union, is in fact a breach of the very contract she seeks to enforce and violates the public policy of this State. The Decision below must therefore be reversed and the Petition dismissed. POINT V THERE IS NO AGREEMENT TO ARBITRATE BETWEEN PETITIONER AND LEWIS COUNTY OR THE LEWIS COUNTY SHERIFF’S DEPARTMENT A threshold question a court must determine on either a motion to compel or a motion to stay arbitration is whether the parties have entered into a valid agreement to arbitrate. County of Rockland v. Primiano Constr. Co., 51 N.Y.2d 1 (1980). Here, the Collective Bargaining Agreement is between Lewis County and CSEA. (See, Resolution, (RA 33). The resolution refers to the agreement as proposed and memorialized as a tentative agreement negotiated by the mediator and signed and dated June 16, 2014 and accepted by CSEA Local 825 and Lewis County. It is clear from this resolution and from the content of the agreement itself that there was no agreement between Petitioner and Lewis County to arbitrate anything. Accordingly, there is no basis upon which Petitioner individually may seek to compel arbitration and her Petition should therefore have been dismissed. As argued above, it is the strong policy of the State of New York that where a collective bargaining agreement provides for a grievance procedure, the employee is bound by such procedure and has no authority to commence a legal proceeding to enforce the terms of the CBA independent of the union. There simply is no legal basis for this application to compel arbitration as there exists no agreement between Petitioner and Lewis County. Thus, the Decision below must be reversed and the Petition dismissed. 20 POINT VI PETITIONER’S DEMAND TO ARBITRATE DID NOT COMPLY WITH THE CONDITION PRECEDENTS CONTAINED WITHIN THE CBA At the most basic level, Petitioner cannot demonstrate compliance with fundamental condition precedent to arbitration, i.e., that it must be initiated by the Union and not the employee alone. Article IV of the CBA provides that upon completion of the second step of the grievance process, if the result is not acceptable LLto CSEAn, then “CSEA shall have the right . . .to proceed to binding arbitration as conducted by PERB”. (Emphasis added) (RA 39). Here, there is no evidence that CSEA has indicated any dissatisfaction with the Sheriffs notice of termination, nor has the CSEA filed a demand to arbitrate. None of the so-called notices at issue in this proceeding were authored or joined in by CSEA and there is no record of any claim by Petitioner that the union failed to adequately represent the Petitioner. Thus, this most basic of conditions has not been fulfilled and the cross-motion to permanently stay arbitration must be granted. Furthermore, Petitioner’s failure to timely notify the County consistent with the contractual requirements also demonstrates a failure to satisfy a condition precedent. The CBA provides that in the event that an employee receives a notice of discipline or termination, that the employee then has five (5) days in which to notify the County in writing that the employee chooses to exercise his or her rights under the grievance and arbitration procedures under the contract or the rights provided under Civil Service Law Section 75. (Article XXIII, Section 2(B). It is undisputed and indeed the Court below found as a matter of fact that the notice issued by the Petitioner on November 29, 2015 failed to comply with the forgoing contractual requirement. (See, footnote, page 10 Of the Decision, RA 19). However, the Court below reasoned that the timeliness of the notice was not a condition precedent but was an issue for the arbitrator to determine within the CBA. (RA20). This was error. 21 Article XXIII of the CBA provides employees subject to the CBA with an election of remedies. Section 2 provides: A. . . . Any disciplinary action or measure imposed upon an employee may be processed as a grievance under the regular grievance procedure (including the arbitration step if necessary). If such employee is covered by Section 75 of the Civil Service Law, it may be processed either by the grievance and arbitration procedure or by a hearing as provided by said section of the Civil Service Law, as such employee may elect. The election of either procedure precludes the use of the other. Such employee must indicate in writing to the Department Head within Five Work Days of notification that disciplinary action is being imposed, that he/she elects either to exercise his/her rights under the grievance and arbitration procedure or their rights provided by § 75. Failure to exercise such option provided will automatically foreclose use of the grievance and arbitration procedure. B. It is clear from this language that the parties intended this provision to be the “gatekeeper” for purposes of determining whether a given disciplinary matter is to proceed under the contractual grievance and arbitration procedures or as matter requiring a hearing under Section 75 of the Civil Service Law. (herein “Section 75”). Subparagraph “B” clearly provides that an employee’s failure to exercise the election “ automatically forecloses the use of the grievance and arbitration procedure.” (Emphasis added). Such language makes the timing of an employee’s notice of election self- executing. If the employee fails to make a timely election, the option to go forward with an arbitration is instantly foreclosed. Moreover, where a terminated employee is given the option of proceeding under the grievance and arbitration procedures, the employee must engage in the grievance process prior to arbitration as a condition precedent to going forward with arbitration. In Suffolk Regional OTB vs. Local 517S, 270 A.D.2d 351 (2nd Dep’t 2000), the Appellate Division held that utilization of the grievance process by the discharged employee was a condition precedent to gain access to the arbitration forum. Neither the employee nor the union attempted to take advantage of the grievance process. The Appellant 22 Division therefore affirmed the trial court’s granting of a stay of arbitration. See also, In Re Greenburgh, 125 A.D.2d 315 (2d Dep't 1986) (compliance with steps one and two of the grievance process deemed a condition precedent to arbitration which was step three in the process). These cases parallel the holding of County of Rockland v. Primiano Constr. Co., 51 N.Y.2d 1 (1980) where the Court of Appeals held that once a court has determined that there the parties have agreed to arbitration, the next issue to be addressed by the court is whether the contract has been complied with. The courts in both Suffolk Regional OTB and In Re Greenburgh considered the employee’s failure to timely engage in the grievance process as a condition precedent to arbitration. Implicit within those rulings is that the employees in those cases had failed to comply with the contractual provisions that allowed access to the arbitral forum. The Court of Appeals followed the same reasoning in Blamowski v. Munson Transp., Inc., 91 N.Y.2d 190 (1997). There, under the terms of the collective bargaining agreement, after completion of step two of the grievance process, the matter could be submitted to arbitration if done within five (5) days of the employer’s decision denying the grievance. The Court of Appeals held that the employee’s failure to timely notify the employer of the employee’s intent to arbitrate showed a failure to meet the basic requirements of either the arbitration agreement or CPLR 7503(c). Similarly, in Barnes v. Council 82, AFSCME ex rel. Monroe, 94 N.Y.2d 719 (2000), the Court of Appeals held that an employee’s failure to complete Step 3 of the grievance process failed to satisfy a condition precedent to arbitration under the collective bargaining agreement and therefore permanently stayed the arbitration. The same result should apply here. The Petitioner issued her notice of election to proceed under the grievance and arbitration procedures, but her attorneys then instantly demanded arbitration without addressing the grievance process. (RA 93). Not only were the notices untimely, but the Petitioner 23 failed to engage in the grievance process at all. This shows a basic failure to comply with the agreement to arbitrate and the conditions precedent necessary to compel arbitration. Finally, Petitioner’s request for arbitration before the American Arbitration Association, also failed satisfy the condition that arbitrations under the CBA must be heard by PERB. (See, counsels’ letters, RA 100 - 101). In Matter of City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 136 A.D.3d 813 at 815 (2d Dep't 2016), the Appellate Division held that an attempt to commence arbitration in the wrong forum is not a ministerial error, as the Court below held. Rather, such attempts to proceed under the wrong forum are deemed void in so far as compliance with the parties’ contract is concerned. Thus, Petitioner’s demand to proceed under the American Arbitration Association was another example of the Petitioner failing to fulfill the conditions precedent to arbitrating the within dispute in compliance with the terms of the parties’ CBA. Because, the Petitioner failed to satisfy essential conditions precedent to arbitration, she is not entitled to compel arbitration and her Petition must be dismissed and a permanent stay must be granted. County of Rockland v. Primiano Constr. Co., 51 N.Y.2d 1 (1980). CONCLUSION For all of these reasons, the Court below erred when it granted the Petition to compel arbitration and its Decision and Order must be reversed and Appellants’ cross-motion to stay arbitration be granted. 24 Dated: April 7, 2017 East Syracuse, New York Yours, etc. The Law Firm of Frank W. Miller Frank W. Miller, Esq. Attorneys for Appellants-Respondents Office and Post Office Address: 6575 Kirkville Road East Syracuse, New York 13057 Telephone: 315-234-9900 Facsimile: 315-234-9908 fimller@fwmillerlawfirm.com 25