In the Matter of Michelle Widrick, Appellant; Michael Carpinelli,, et al., Respondents.

Brief

N.Y.June 25, 2018

To be Argued by: Frank W Miller, Esq. Time Requested: 10 Minutes 38teto §0ortt Supreme Court appellate ©tPtOton - jfourtfj department 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.; REPLY BRIEF On Behalf of 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 TABLE OF CONTENTS PRELIMINARY STATEMENT, .1 ARGUMENT, ,3 , POINT! .3 PETITIONER HAS FAILED TO ESTABLISH HER STANDING TO BRING THE INSTANT PROCEEDING TO COMPEL ARBITRATION Petitioner Has No Standing Under the Terms of the CBA,A. ,3 B. If the Petitioner Wished to Proceed in Her Own Right, the CBA Allowed Her the Option to Have a Hearing Under Section 75.... 8 POINT II, 10 PETITIONER FAILED TO PROVE THAT HER DEMAND TO ARBITRATE COMPLIED WITH THE CONDITION PRECEDENTS CONTAINED WITHIN THE CBA A. Petitioner’ Letter Grieving her Termination was Untimely and Therefore did not Comply with the Terms of the Contract 10 B. Compliance with Article XXIII of the Collective Bargaining Agreement Was a Condition Precedent to Arbitration 12 POINT III, 15 PETITIONER’S REFERENCE TO A PURPORTED ASSIGNMENT OF RIGHTS IS MEANINGLESS POINT IV, 16 PETITIONER FAILED TO RESPOND TO APPELLANTS’ JURISDICTIONAL ARGUMENTS CONCLUSION, 17 i TABLE OF AUTHORITIES Cases Albala v. County of Nassau, 270 A.D.2d 482 (2d Dep't 2000) Altman v Rossi,107 A.D.3d 1223 (3d Dep't 2013) Antinore v. State, 49 A.D.2d 6 [4th Dep’t 1975]. Barnes v. Council 82, AFSCME ex rel Monroe, 94 N.Y.2d 719 (2000) Berlyn v. Board of Education,80 A.D.2d 572 (2d Dep’t 1981) Board of Education v. Ambach, 70 N.Y.2d 501 (1987) Cartier v. County of Nassau, 281 A.D.2d 477 (2d Dep’t 2001) Chupkav. Lorenz-Schneider Co., 12N.Y.2d 1 (1962).... Clark v. County of Cayuga, 212 A.D.2d 963 (4th Dept, 1995) County of Rockland v. Primiano Constr. Co., 51 N.Y.2d 1 (1980) Diaz v. Pilgrim State Psychiatric Ctr.,62 N.Y.2d 693 (1984) In Re Greenburgh, 125 A.D.2d 315 (2d Dep't 1986) Marin v. Benson, 131 A.D.2d 100 [3rd Dept, 1987] . Matter of City of Long Beach v Long Beach Professioml Firefighters Assn., Local 287, 136 A.D.3d 813 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) . N. Y. Central Mutual Fire Ins. Co. v. Czumaj, 9 A.D.3d 833 (4th Dep’t 2004) New York City Tr. Auth. v. Gorrick, 72 A.D.3d 518 (1st Dep’t 2010) Spychalski v. Continental Ins. Cos., 58 A.D.2d 193 (4th Dep’t 1977) affd 45 N.Y.2d 847 (1978) Suffolk Regional OTB vs. Local 517S, 270 A.D.2d 351 (2nd Dep’t 2000) Tomlinson v. Board ofEduc., 223 A.D.2d 636 (2d Dep't 1996). Wien & Malkin LLP v. Helmsley-Spear, Inc., 6N.Y.3d 471 (2006) Yak Taxi, Inc.v.Teke, 41 NY2d 1020 (1977) ;.. 7 7 8 ..14 7 6, 8,9 16 8 6 12 6 14 8 15 6 6 16,17 6 16 14 3,7 15 16 ii PRELIMINARY STATEMENT The Respondents-Appellants, SHERIFF MICHAEL CARPINELLI, THE LEWIS COUNTY SHERIFF’S DEPARTMENT, and the LEWIS COUNTY ATTORNEYS OFFICE (herein collectively the “Sheriff5 or “Appellants55) submit this Reply Brief in support of their 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”). Appellants take great exception to the Petitioner’s opening comment that the Sheriff “waged an all-out campaign to terminate Petitioner as a dispatcher in the Sheriffs office (See, Petitioner’s Brief in Opposition, page 1). Such comment is not only untrue, it is an unnecessary and irresponsible allusion to Petitioner’s perspective on the merits of this case which are not now before this Court. To the extent that Petitioner’s off-hand comment deserves a response, a review of the Sheriffs interview of the Petitioner that occurred on August 17, 2015 (R-55-82) will show that Petitioner lied to the Sheriff in response to his questions regarding her on-duty conduct. Petitioner later admitted to the lie in Petitioner’s affidavit of November 16, 2016 with attached statement (R-84-87). The Sheriff, being the head of a paramilitary organization which is responsible for the safety and security of the community, must be able to rely upon the unquestionable honesty and integrity of his subordinates. As a result, the Sheriff cannot tolerate the willful deception of the Petitioner in response to his lawful inquiries into her activities while on duty. The discipline meted out to the Petitioner was the product of the Petitioner’s own fraudulent and insubordinate conduct, not some “campaign” as Petitioner suggests. Petitioner’s comment is therefore entirely unnecessary, inaccurate, and indeed irrelevant to the issues raised on this appeal as to (a) whether the Petitioner has standing to demand arbitration independent of CSEA, Petitioner’s collective bargaining agent, and outside the scope of the 1 agreement entered into between the Sheriff and the CSEA and (b) whether the Petitioner complied with the collective bargaining agreement by fulfilling the conditions precedent to any such arbitration. Rather than follow the election of remedies that are provided under Article XXIII of the CBA, Petitioner chose to pursue a course of conduct that was clearly outside the scope of the agreed upon arbitration procedures. Under Article XXIII of the CBA, the Petitioner had the option to select either (a) the grievance and arbitration procedures contained in Article IV of the contract which culminated in arbitration before PERB under the auspices of the CSEA, or (b) a hearing pursuant to Section 75 of the Civil Service Law, where the Petitioner was free to select her own counsel, pursue her own defense and seek whatever statutory remedies she deemed appropriate, all without union representation if she so chose. Instead of selecting one of the two contractual options, Petitioner attempted to forge her own remedy by (a) endeavoring to arbitrate her termination independent of the union, and (b) seeking to arbitrate the matter before the American Arbitration Association, contrary to the CBA’s requirement that all arbitrations must be referred to the Public Employment Relations Board. For these reasons, Appellants contend that the Petitioner lacks standing to maintain this proceeding and further that she has not fulfilled the necessary conditions precedent to compel arbitration. Therefore, the Decision and Order below must be reversed. 2 ARGUMENT POINT I PETITIONER HAS FAILED TO ESTABLISH HER STANDING TO BRING THE INSTANT PROCEEDING TO COMPEL ARBITRATION A. Petitioner Has No Standing Under the Terms of the CBA. Petitioner claims that she has “the contractual right to arbitrate the grievance” (Brief in Opposition, page 17). Her claim to standing relies entirely on her contention that because the collective bargaining agreement allows an employee the option to choose to grieve a disciplinary action, she may pursue arbitration in her own right, irrespective of the union’s involvement. Contrary to Petitioner’s claims, however, the collective bargaining agreement gives the union exclusive control over which grievances may be pursued to arbitration. Petitioner therefore has no standing to pursue her individual remedies. See, Tomlinson v. Board of Educ., 223 A.D.2d 636 (2d Dept 1996). In Tomlinson, the collective bargaining agreement provided that after the first step in the grievance process, the union maintained control over the grievance process all the way through to arbitration. The court held that as a result, the employee lacked standing to pursue his own legal remedies against the employer after he was dissatisfied with the arbitration results. Moreover, the court found that the employee’s interpretation of the contract contradicted the clear intent of the contract to give the union full,control of the grievance process. The same principles apply here. As Appellants argued at length in their Brief on Appeal, the plain language of Article IV of the CBA restricts access to arbitration to only those grievances which CSEA, not the employee, wish to pursue: Section 5. Arbitration. 3 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) (Emphasis added) This is the only provision within the contract that provides for a grievance and arbitration process and evidences the parties' clear intent that CSEA ultimately owns the right to determine whether a given grievance is to proceed toarbitration. Petitioner's arguments to the contrary would eviscerate the parties' intent and create an exception to Article IV that the parties did not bargain for, and indeed does not exist under the contract. Petitioner relies upon the erroneous holding of the Court below that because Article XXIII, which covers employee discipline and discharge, does not contain its own prescription for grievance and arbitration, that in the case of terminations, the parties must have intended to allow employees the right to pursue arbitration independent of CSEA. A review of the applicable provisions demonstrates that the Court's logic is based on a faulty premise. Article XXIII, Section 2 of the CBA provides in relevant part: A. Within five (5) work days after the discipline of an employee covered by this agreement (or sooner if practicable), the County will provide the disciplined employee, the Department’s Union Steward, and the Union President, with a written statement of the reason for which the discipline was imposed. Any disciplinary action or measure imposed upon an employeemay be processed as a grievance under the regular grievance procedure (including the arbitration step if necessaiy). 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 DepartmentHead 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. B. 4 Failure to exercise such option provided will automatically foreclose use of the grievance and arbitration procedure. (RA 53). Here, there can be little doubt that the reference to the “regular grievance and arbitration procedure” in Section 2(A) and (B) is intended to incorporate by reference the provisions of Article IV including the limited access to arbitration as quoted from Article IV, Section 5. Both the Petitioner and the Court below, stretched the provisions of Article XXIII and Article IV virtually beyond recognition by construing the reference to "grievance and arbitration” as creating an exception to Article IV rather thana referral to Article IV. Under this strained logic, both the Court below and the Petitioner essentially re-wrote the provisions of Article XXIII in order to find a means by which the Petitioner may pursue the proceeding below. The obvious reason there is no separate procedure contained within Article XXIII for resolving grievances and arbitrations related to discipline and discharge, is that the parties intended to rely upon the procedures already contained in Article IV. Thus, there was no need to set forth a separate procedure (and certainly no basis upon which to create one sub judice). It follows that by electing to grieve a termination under Article XXIII, Section 2(B), an employee is choosing to abide bythe grievance procedures contained inArticle TV, and invoke the union’s representation through the arbitrationprocess. Such anapproachharmonizes both Articles, particularly in light of the fact that the procedures contained in Article XXIII apply to all forms of discipline not just terminations1. 1 Ironically, both the Petitioner and the Court below create this phantom "exception” but apply it only to cases of termination. Their argument thus foils to take into account that Article XXIII applies to all instances of employee discipline. Under Article XXIII, as written, any employee who receives discipline whether it involves termination or not, has the right to choose to either grieve the issue or rely upon the procedures under Section75 of the Civil Service Law. The fact that the Court below sought to carve out an exception only in the instance of terminations highlights the extent to which the Court had but one intended outcome and then rationalized its analysis to reach that pre¬ determined result. 5 The above analysis also comports with the analysis of the Court of Appeals in Board of Education v. Ambach, 70 N.Y.2d 501 (1987), where the Court stated: When [the petitioner] elected to follow the contract grievance procedure, he did so knowing that his union would control the decision whether to reach arbitration. He left that authority with them. Without a showing, that the union breached its duty of fair representation in prosecuting the employee's grievance, its decision to conclude the grievance process short of the final step allowed by contract or law is binding on the employee and precludes resort to additional remedies. Board of Education v. Ambach, supra, at 511. In the instant case, the Petitioner ignored both the union and the provisions of the CBA and attempted to bring the issue of her termination directly to arbitration on her own initiative. As an employee, she has no right under the collective bargaining agreement, to which only her former employer and union are parties, to unilaterally bring the issue to arbitration. New York City Tr. Auth. v. Gorrick, 72 A.D.3d518 (1st Dep't 2010). For that reason, Plaintiff’s reliance on Diaz v. Pilgrim State Psychiatric Cfr., 62 N.Y.2d 693 (1984) is misplaced. In Diaz, the court found that the collective bargaining agreement specifically allowed an employee to hire their own counsel and to independently prosecute each and every stage of a grievance up to and including arbitration. That clearly is not the situation here, where Article IV of the contract unequivocally restricts access to arbitration to CSEA alone. It is well settled that where an employer and a union have entered 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. Michael F. Wolfson, M.D., M.P.H. v. Preventative Medicine Clinical Servs., 26 A.D.3d 751 (4th Dep't 2006); Matter of Reese v. Board of Trustees of Mohawk Valley Community College, 28 A.D.3d 1240 (4th Dept., 2006); Clark v. County of Cayuga, 212 A.D.2d 963 (4th Dept., 1995). 6 The inherentfallacy of Petitioner’s arguments is underscored by Petitioner’s feeble attempt to distinguish the holdings of Matter of Reese v. Board of Trustees of Mohawk Valley Community College and Clark v. County of Cayuga. Petitioner argues that those cases shouldn’t apply in this case, because those cases involved employees who sued their employers for breach of contract. Inexplicably, Petitioner maintains that she is not suing the Appellants. Petitioner claims that she “is not suing her employer, she is simply and merely demanding arbitration.” Petitioner’s Brief, page 22. There is no question but that Petitioner has brought legal process by which she is seeking to enforce the terms of the collective bargaining agreement, including what she believes to be her right to arbitrate a dispute without the involvement of tire union. How that does not constitute a lawsuit is beyond comprehension. Petitioner’s argument is therefore specious at best. A union member has no individual rights under a collective bargaining agreement which he can enforce against his employer except through the union. Altman v Rossi,107 A.D.3d 1223 (3d Dep't 2013); Albala v. County of Nassau, 270 A.D.2d 482 (2d Dep't 2000); Berlyn v. Board of Education, 80 A.D.2d 572 (2d Dep’t 1981). Accordingly, the principles enunciated in Matter of Reese and Clark that preclude an employee subject to a collective bargaining agreement from suing his or her employer directly apply equally as well to an employee who seeks to judicially compel arbitration without the participation of their union. See, New York City Tr. Auth. v. Gorrick, supra.; Tomlinson v. Board ofEduc., 223 A.D.2d 636 (2d Dept 1996). The results are the same-Petitioner lacks standing to proceed and her petition to compel arbitration must be dismissed. This result is consistent with the State’s strong public policy 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 7 Service Law §200)” Board of Education v. Ambach, 70 N.Y.2d 501, 509 (1987). Permitting individual employees to prosecute their individual disputes outside the contractual grievance procedure obviously unsettles the finality of grievance determinations that is central to implementation of state policy. Further, to allow individual members to sue independently would deprive both the union and the public employer with the ability to administer then agreements in a consistent and coherent manner. The right to bring such proceedings is therefore restricted to the parties to the agreement. (Id.)4, see, also, Chupkav. Lorenz-Schneider Co., 12N.Y.2d 1 (1962). For these reasons, Petitioner lacks standing to maintain this proceeding and the petition must be dismissed. B. If the Petitioner Wished to Proceed in Her Own Right, the CBA Allowed Her the Option to Have a Hearing Under Section 75. Although the contract is clear that an employee who wishes to challenge a discipline or termination may proceed to arbitration only through the auspices of the CSEA, an employee who wishes to challenge the employer’s disciplinary action independent of the union is not without remedy. The contract provides the employee with the option of proceeding under the hearing procedures outlined under Section 75 of the Civil Service Law (as modified under the contract which calls for post-discipline notice and hearing as opposed to the pre-discipline procedure under Section 75. See, Antinore v. State, 49 A.D.2d 6 [4th Dep’t 1975]; Marin v. Benson, 131 A.D.2d 100 [3rd Dept, 1987]). Thus, if a disciplined employee believes the grievance and arbitration procedure is too restrictive, or if the employee learns that the union is not interested in taking up the employee’s challenge for whatever reasons, the employee is empowered under the terms of Article XXIII to proceed under Section 75 of the Civil Service Law independently and irrespective of the union. Under Section 75, the employee would have the right to choose her own legal counsel, map out 8 the course of her own defense, and pursue her own strategy. Once a decision is reached by the appointing authority, the employee has the full range of administrative and judicial reviews available under the Civil Service Law, as is the case for most public sector employees. All of these remedies remain preserved under the terms of Article XXIII, However, if the employee elects to pursue the grievance/arbitration route, she must submit to the terms of the CBA, which delegates control of the arbitration procedure to the CSEA. At least insofar as arbitration is concerned, the Petitioner may not chart her own course, as she attempted here. The contract affords the employee a full five days from the date of discipline or discharge in which to confer with the union, confer with their personal attorney, weigh the benefits and determine which course of action she wishes to choose. While the Petitioner in this case failed to comply with the contract and did not make her decision or notify the Sheriff in a timely fashion, as argued below, the contract nevertheless preserves that option2. Thus, the options made available to an employee under Article XXIII, constitute a true election of remedies, each of which carries its own set of procedures as well as its own consequences. Accordingly, as the Court of Appeals noted in Board of Education v. Ambach, 70 N.Y.2d 501 (1987), when an employee elects to proceed along the grievance and arbitration route, he or she knows that such decision means the union will be is in control of the process. Board of Education v. Ambach, supra, at 511. If the •Petitioner wanted to avoid ceding control of the arbitration process to the union, she could opted to pursue her remedies under Section 75 which would have allowed her full control over her own defense as well as the full complement of statutory remedies. It is therefore evident that the Petitioner had no standing to create a remedy of her own making by attempting to arbitrate this dispute on her own initiative. 2 If the five-day limit is too restrictive, the parties may mutually agree to extend the deadline as is often done in the grievance and arbitration process., though not done here. 9 POINT II PETITIONER FAILED TO PROVE THAT HER DEMAND TO ARBITRATE COMPLIED WITH THE CONDITION PRECEDENTS CONTAINED WITHIN THE CBA A. Petitioner’ Letter Grieving her Termination was Untimely and Therefore did not Comply with the Terms of the Contract. Appellants demonstrated at length in their Brief on Appeal that Petitioner’s correspondence of November 29, 2015, was deficient on numerous grounds, not the least of which is that it was not served timely and therefore failed to give the Petitioner entry to the arbitral forum Petitioner seeks. Petitioner attempts to avoid the preclusive effect of the untimely notice by arguing that the Sheriffs letter of November 18, 2015, did not trigger the five-day period for her to notify the Sheriff of her election to challenge her termination, (Brief in Opposition, page 9) Unfortunately for the Petitioner, the Sheriffs notice itself undermines her argument. It is undisputed that the Sheriff issued a letter to the Petitioner on November 18, 2015 stating that she was terminated effective immediately. (RA 88) The Sheriffs letter further stated: 4. You are further advised that you must indicate in writing to the Sheriff, within five (5) work days after notification that this discharge action is being imposed, that you either exercise your rights under the grievance and arbitration process or rights provided under Section 75. (Id.) The Sheriffs letter advised the Petitioner that she in fact had five days from her receipt of that letter to notify the Sheriff in writing of her election to proceed either with grievance and arbitration or under Section 75. The Sheriffs letter went on to state that within five days of that letter, he would provide her with a more detailed statement of the reasons for the termination: You are further advised that within five (5) work days from this [sic] action, you will be provided with a more detailed statement of the reasons/charges for the termination. (Id) 5. 10 It is evident that the Sheriffs letter clearly distinguished his act of notifying the Petitioner of her immediate termination and his subsequent letter that would advise Petitioner in greater detail, the reasons for her termination. Petitioner now argues that despite the Sheriffs directive that the Petitioner had five (5) days in which to contest the termination, the Sheriffs letter did not "trigger” her five-day notice period. The resolution of this issue is found in the language of the contract itself. The Sheriffs letter is consistent with the requirements of Article XXIII, Section 2(B) (R- 53) which states that an employee has five work days from the date of “ notification that disciplinaiy action is being imposed in which to notify the Sheriff if the employee intends to challenge the discipline or discharge. This phrase, stated in the present tense, refers to the employee receiving notice as and when disciplinary action is actually imposed. There is nothing in this provision that requires the employer to provide the employeewith anything more than notice that discipline is being initiated against the employee. In contradistinction, Article XXIII 2(A) (R-53) states: Within five (5) work days after the discipline of an employee covered by this agreement (or sooner if practicable), the County will provide the disciplined employee, the Department’s Union Steward, and the Union President, with a written statement of the reason for which the discipline was imposed. Here, the phrasing is clearly in the past tense and sets forth the obligation of the Sheriff to provide with a written statement after the discipline has been imposed. It is evident that the contract separates the act of imposing discipline from the act of presenting the employee with the reasons for the discipline which is to occur five days after the discipline is meted out. Accordingly, and consistent with Article XXIII, the Sheriff’s letter of November 18, 2015, directed the Petitioner to notify him within five (5) work days of the date of that letter, i.e., the 11 date that her discipline was imposed, if she wished to challenge the termination, and if so, under which of the two procedures that were available under the contract. Thus, contrary to Petitioner’ arguments, Petitioner was in fact notified of her rights to challenge the discipline, and was further advised of the necessity of making a timely notice of her election of remedies. The record shows that Petitioner did not issue her notice to the Sheriff until November 29, 2015, some eight (8) work days later. Petitioner’s argument that the notice of termination did not trigger the Petitioner’s obligation to notify the Sheriff, is also belied by the findings of the Court below. The Court indeed acknowledged that Petitioner’s notice was in fact late (Decision, page 10, R-19) and further acknowledged that the contract measures the Petitioner’s five-day notice period from the date of the Sheriffs November 18, 2015 letter and not from the date the formal charges were issued (November 25, 2015). Thus, Petitioner’s argument contradicts the very Decision Petitioner is attempting to uphold. Accordingly, as found by the Court below, the time period for Petitioner to notify the Sheriff ofher intention to grieve her termination expired on November 27, 2015. This means that the subsequent letters from her counsel, dated November 30, 2015 and December 9, 2015 could not cure this jurisdictional defect. Petitioner failed to comply with the terms of the contract, and failed to fulfill one of the conditions precedent to arbitration. B. Compliance with Article XXIII of the Collective Bargaining Agreement Was a Condition Precedent to Arbitration. The Court of Appeals stated in County of Rockland v. Primiano Constr. Co., 51 N.Y.2d 1 (1980) that there are three threshold issues for a court to determine on a motion to compel or stay arbitration: (1) whether there was a valid agreement to arbitrate, (2) whether the agreement was 12 complied with, and (3) whether the claim is haired by applicable statute of limitations. County of Rockland, supra at page 7. The Court of Appeals further stated that in determining whether the contract has been complied with, the reviewing court must assess whether compliance with a particular contractual term “is in essence a prerequisite to entry into the arbitration process or a procedural prescription for the management of that process.” (Id.). In the instant case, Petitioner has misconstrued the CBA to argue that the timeliness of Petitioner’s notice of intent to grieve is reserved for the arbitrator, As noted above, Article XXIII is intended to provide a comprehensive process by which all matters involving the discipline or discharge of an employee may be resolved. Section 2(A) states: “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).” (Emphasis added). Thus, the notice procedures that are outlined within Article XXIII are not limited to "managing” the arbitral process, but rather set the groundwork for an employee to grieve any disciplinary issue whichmay or may not end up in arbitration. An employee’s notice that they wish to proceed under the contractual grievance and arbitration procedures is a prerequisite to engaging the grievance process in the first place and thus it is a condition precedent to that grievance ultimately reaching the arbitration stage. Again, as Appellants have previously argued here and in their Brief on Appeal, any other interpretation of Article XXIII would deprive either Paragraph A or B under Section 2 of their plain and direct meaning. This conclusion is further supported by the last line in Paragraph B that states “Failure to exercisesuch option provided will automatically foreclose use of the grievance and arbitration procedure.” (RA 53). Again, the limitation on the employee’s option is not limited to just 13 arbitration, but includes the entire grievance process as well3. The contract makes it abundantly clear that failure to provide notice in compliance with the contract forecloses the employee from use of the grievance and arbitration process. Thus, regardless of whether an employee is disciplined by means of a suspension or a termination, the means for determining the employee’s compliance with this option is the same. It follows that under the manifest terms of the contract, Petitioner’s failure to comply with Section 2 (B) by failing to timely notify the Sheriff of her intent to grieve her termination bars her fiom entry into the grievance process which perforce denies her access to the arbitral forum. The courts have readily found that where an employee fails to timely comply with a contract’s grievance procedures, access to arbitration is denied. See, Barnes v. Council 82, AFSCME ex rel Monroe, 94 N.Y.2d 719 (2000); Suffolk Regional OTB vs. Local 517S, 270 A.D.2d 351 (2nd Dep’t 2000); In Re Greenburgh, 125 A.D.2d 315 (2d Dep't 1986). The same result should obtain here. Another example of Petitioner’s failure to fulfill a condition precedent to the contract is the Petitioner’s effort to have the matter arbitrated in the American Arbitration Association rather than the Public Employment Relations Board as required under Article IV. Petitioner’s attorneys requested that the matter go before the AAA not once, but twice. This is not simply ministerial error but a concerted effort to avoid the plain requirements of the contract. It is evident that Petitioner intended to not only prosecute the arbitration independent of the union, but she believed she could do so in the forum of her own choosing. See, Matter of City of Long Beach v Long 3 It should be noted that throughout Article XXIII, the contractrefers to “grievance and arbitration” not “grievance or arbitration”. It is therefore evident that the parties viewed the remedies contained in Article IV as a single unit, and unlike the Petitioner, did not assume that arbitration should be separated out with its own procedure. Petitioner’s assumption that in the case'of terminations, the employee’s notice to grieve the dispute is the equivalent of a demand for arbitration is therefore fundamentally flawed. 14 Beach Professional Firefighters Assn., Local 287, 136 A.D.3d 813 at 815 (2d Dep't 2016). Petitioner’s efforts in this regard show not only her defiance of the contractual terms, but also reinforces the reason why the parties have contracted for a consistent arbitration procedure where the union, not the individual employee, controls the gate. POINT in PETITIONER’S REFERENCE TO A PURPORTED ASSIGNMENT OF RIGHTS IS MEANINGLESS On page 20 of the Brief in Opposition, Petitioner makes the statement that the CBA does not prohibit CSEA from assigning the right to arbitrate Petitioner’s grievance to the Petitioner. Although it is difficult to discern the Petitioner’s intent with this argument, suffice it to say that Petitioner is blatantly wrong on the law. A labor contract is by definition, a contract for personal services. As such, the law is well settled that a contract for personal services may not be assigned absent the consent of the principle. See, generally, Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 N.Y.3d 471 (2006); Corbin, Contracts § 865 [interim ed]; 3 Farnsworth, Contracts §§ 11.4, 11.10 [3d ed]). There is certainly no evidence that the County ever consented to an assignment of this grievance to the Petitioner. Accordingly, whatever the Petitioner is alluding to, absent proof that the County consented to it, no such assignment of rights exists. However, it must be noted that implicit within Petitioner’s suggestion that the right to arbitrate a termination could be assigned by CSEA is a recognition,that under Article IV of the CBA, the right to arbitrate an employee discharge belongs exclusively to the CSEA. Petitioner’s argument therefore actually concedes to Appellants point that Petitioner has no standing to compel arbitration absent the union’s participation. 15 POINT IV PETITIONER FAILED TO RESPOND TO APPELLANTS’ JURISDICTIONAL ARGUMENTS In their Brief on Appeal, Appellants argued extensively that the correspondence of the Petitioner and her attorneys were not served in accordance with CPLR § 7503(c), and therefore deprived the court of jurisdiction to hear the petition to compel arbitration. Appellants referred to a recent decision from this Appellate Division, V. Y. Cental Mutual Fire Ins. Co. v. Czumaj, 9 A.D.3d 833 (4th Dep’t 2004) wherein this Court held that service of a demand for arbitration via Federal Express did not comply with strict requirements of the statute, and therefore granted the motion to stay arbitration. This Court’s holding in N. Y. Central Mutual is in keeping with other courts which have held that failure to comply with the personal service requirements of CPLR § 7503(c) is jurisdictional. 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). Petitioner apparently concedes to the authority of these citations, as she offers no response except to say that all decisions regarding the manner of service should be reserved for the arbitrator. Petitioner’s argument is simply wrong on the law. Accordingly, the Court below erred when it overlooked this jurisdictional barrier and ruled in favor of the Petitioner. For these reasons, the Court’s Decision and Order below must be 16 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). CONCLUSION The Court belowmanifestly ignored the plain terms of the collective bargaining agreement and based on a strained and inherently flawed logic held that the contract allowed Petitioner to pursue arbitration in her own right and for her own benefit. Through both the Brief on Appeal and this Reply Brief, Appellants have demonstrated that first and foremost, the Petitioner lacks standing to bring this proceeding. The contract between the parties unequivocally limits access to arbitration to the CSEA, who is not a party to this litigation. Even if Petitioner could show the requisite standing, Petitioner failed to comply with the CBA and therefore failed to fulfill the conditions precedent necessary to arbitration by issuing letters to the Appellants that were neither compliant with the terms of the contract nor timely. Finally, the Court below lacked jurisdiction to hear the petition due to the Petitioner’s failure to properly serve what she considered to be her “demand for arbitration”. For all these reasons, the Decision and Order of the Court must be reversed and the petition to compel arbitration dismissed in all respects. Dated: May 23, 2017 East Syracuse, New York Yours, etc. The Law Firm of Frank W. Milk 'A Frank W. Miller,Esq. Attorneys for Appellants- Respondents Office and Post Office Address: 17 6575 Kirkville Road East Syracuse, New York 13057 Telephone: 315-234-9900 Facsimile: 315-234-9908 finiller@fwmillerlawfirm.com 18