In the Matter of Michelle Widrick, Appellant; Michael Carpinelli,, et al., Respondents.BriefN.Y.June 25, 2018To Be Argued By: Stephen Ciotoli Time Requested: 10 minutes i§>tate of iBtrto |9ork Supreme Court appellate DiUisioii — Jfourtl) Bepartment MICHELLE WIDRICK, Petitioner-Respondent, -vs- SHERIFF MICHAEL CARPINELLI, LEWIS COUNTY SHERIFF’S DEPARTMENT, and LEWIS COUNTY ATTTORNEY’S OFFICE Respondents-Appellants. Index No.: CA2015-000032 Docket No.: BRIEF ON BEHALF OF PETITIONER-RESPONDENT O’Hara, O’Connell & Ciotoli Attorney for Petitioner-Respondent 7207 East Genesee Street Fayetteville, New York 13066 Telephone: (315)451-3810 W0295374.I TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES iii PRELIMINARY STATEMENT 1 QUESTIONS PRESENTED 2 NATURE OF THE CASE AND PROCEDUREAL HISTORY 3 COUNTER-STATEMENT OF FACTS 4 LEGAL ARGUMENT 8 POINT I: PETITIONER HAS MADE A VALID DEMAND TO ARBITRATE AND THEREFORE, THE COURT BELOW HAD JURISDICTION TO CONSIDER THE PETITION 8 The Letter of Termination did not trigger notice to Petitioner to demand Arbitration A. 8 B. Appellants Argument Regarding CPLR 7503(c) are Misplaced. 10 Petitioner’s letter of November 29, 2015 did request arbitration and did constitute a “Notice of Intent to Arbitrate”, C. 11 D. Petitioner’s counsel’s letters of November 30, 2015 and December 9, 2015 did comply with CPLR § 7503(c) and whether Arbitration was Administered by PERB or the AAA is not the issue 12 POINT II: PETITIONER’S CORRESPONDENCE COMPLIED WITH CPLR § 7503 AND CAN INVOKE THE COURT’S JURISDICTION TO COMPEL ARBITRATION 12 POINT III: THE COURT BELOW DID NOT ERR WHEN IT DEFERRED ALL QUESTIONS REGARDING THE FORM OR MANNER OF SERVICE TO THE ARBITRATOR 14 W0295374.1 POINT IV: PETITIONER DID NOT LACK STANDING TO ENFORCE THE DISCIPLINE SECTION OF THE COLLECTIVE BARGAINING AGREEMENT 16 Petitioner has the Contractual Right to Arbitrate the Grievance.A. 17 Nothing Prohibits the CSEA from Assigning the GrievanceB. 20 The cases cited by Appellants are inapposite and not controllingC. 21 AN AGREEMENT TO ARBITRATE EXISTS BETWEEN PETITIONER AND APPELLANTS IN THE DISCIPLINE SECTION OF THE CBA POINT V: 22 PETITIONER’S DEMAND TO ARBITRATE DID COMPLY WITH THE CONDITION PRECEDENTS CONTAINED WITHIN THE CBA POINT VI: 23 CONCLUSION 25 W0295374.1 TABLE OF AUTHORITIES Cases Altamore v. Newsday Inc., 175 A.D.2d 684 [4th Dept. 1991] Bd. ofEduc. v Chautauqua Cent. Sch. Teachers Assoc., 41 A.D.2d47 (4th Dept. 1973). 17 15 Board of Education of Cattaraugus Central School v. Cattaraugus Teacher's Association, 84 A.D.2d 685 (4th Dept. 1981) 24 Board of Education v. Palmyra-Macedon Faculty Assoc., 78 A.D.2d 765 (4th Dept. 1980) 10, 11, 14 Clark v. County of Cayuga, 212 A.D.2d 963 (4th Dept. 1995) 17,21 Buffv. Village of Manlius, 115 A.D.3d 1156 (4th Dept. 2014) Cooper v. Bruckner, 21 AD3d 758 [1st Dept. 20051 17,21 10, 13, 14 Dansville Central School District v. Dansville Teacher's Assoc\, 86 AD2d 962 (4th Dept. 1982) 24 Diaz v. Pilgrim State Psychiatric Center, 62 N.Y.2d 693 [1984] Initial Trends, Inc. v. Campus Outfitters, Inc., 58 N.Y.2d 896 (1983) 17 10 Jacobs vBd. ofEduc., 64 A.D.2d 148 (2nd Dept. 1978). 20 Matter of Dobbs Ferry Union Free School District, 74 A.D.2d 924 (2nd Dept. 1980) Matter of Reese v. Board of Trustees of Mohawk Valley Community College, 28 A.D.3d (4th Dept. 2006) 24 21 Matter of Rockland County (Primiano Const. Co.) 51 N.Y.2d 1 (1980) Triborough Bridge & Tunnel Auth. v Dist. Council 37, 56 A.D.2d 890 (2nd Dept. 1977) Zurich Ins. Co. v. R. Electric Inc., 5 A.D.3d 338 (1st Dept. 20041 13,24 15 13 W0295374.1 iii Statutes CPLR § 7502. 10 8, 10, 11, 12, 13, 14, 22CPLR § 7503 NY Civ. Serv. § 75 23 W0295374.1 iv PRELIMINARY STATEMENT Petitioner/Respondent, Michelle Widrick (“Petitioner”) submits this brief in opposition to the appeal of the Lewis County Sheriffs Department, and Sheriff Michael Carpinelli (the “Sheriff’ or “Appellants”) with regard to their request for reversal of the Decision and Order of the Honorable Charles C. Merrell, dated November 28, 2016, finding that the timeliness of election and demand for arbitration by Petitioner was proper and that the Petitioner had standing to do so under the Collective Bargaining Agreement (CBA). (R. 10-21). Petitioner was summarily terminated by the Sheriff for alleged “serious misconduct,” which basically amounted to the Sheriff not liking the fact that Petitioner supported another candidate for Lewis County Sheriff. The “misconduct” surrounded an incident that occurred on August 17, 2015, where the Sheriff suspected that Petitioner had petitions to support the candidacy of his political opponent, and from that point forward the Sheriff waged an all-out campaign to terminate Petitioner as a 91 1 dispatcher in the Sheriffs office. (R. 26-27). The grounds for Appellants’ appeal can be variously stated as follows: (1) that Petitioner’s demand for arbitration was not timely and/or was not in the proper form; (2) that Petitioner lacked standing; (3) that Petitioner is not a party to the collective bargaining agreement; and (4) that there was no agreement to arbitrate with the Petitioner. However, over the course of their 24-page brief, Appellants arguments really only come down to two issues: that they did not like Petitioner’s letter demanding arbitration and that they did not think that Petitioner had standing to demand arbitration. If these two arguments fail, then this appeal must be denied and the lower court decision affirmed. W0295374.1 1 QUESTIONS PRESENTED Did the Petitioner’s correspondence constitute a valid demand for arbitration? Brief Answer. Yes. Petitioner and Counsel’s letters to Appellants provided timely notice of Petitioner’s election and demand for arbitration and despite any minor alleged defects, if any, the Appellants received actual notice of Petitioner’s demand for arbitration. Did the Petitioner have standing to compel arbitration?2. Brief Answer: Yes. The union (CSEA) does not exclusively “own” the grievance. Per Article XXIII, Section 2.A and B of the Collective Bargaining Agreement, Petitioner had standing, as an employee covered by Section 75 of the Civil Service Law, (A) wherein the grievance may be processed either by the grievance and arbitration procedure or by a hearing as provided by Section 75 of Civil Service Law, as such employee may elect and (B) that such employee must indicate in writing...that she elects either to exercise her rights under the grievance, and arbitration procedures or the rights provided by Section 75. These are Petitioner’s rights to elect and she has standing to do so. (R. 53). Did an agreement to arbitrate between Petitioner and the Appellants exist?3. Brief Answer: Yes. The union (CSEA) does not exclusively “own” the grievance Per Article XXIII, Section 2.A and B of the Collective Bargaining Agreement, Petitioner had standing under the agreement (A) to proceed either by the grievance and arbitration procedure or by a hearing as provided by Section 75 of the Civil Service Law, as such employee may elect and (B) that such employee must indicate in writing...that she elects either to exercise her rights under the grievance, and arbitration procedures or the rights provided by Section 75. These are Petitioner’s rights to elect and the agreement allows her to do so. (R. 53). Did Petitioner comply with the conditions precedent to arbitration in the CBA?4. Brief Answer: Yes. Per the Collective Bargaining Agreement, Petitioner complied with all conditions precedent to arbitration as provided in Article XXIII, Section 2.A and B, including making a timely and proper demand for arbitration, which put Appellants on notice of the same, and farther, as the aggrieved employee, that Petitioner had standing and the right to do so. W0295374.1 2 NATURE OF THE CASE AND PROCEDUREAL HISTORY Appellants appeal from a Decision and Order of the Honorable Charles C. Merrell dated November 28, 2016, granting Petitioner’s Article 75 Petition, and denying Appellant’s request to dismiss the Petition or stay arbitration. (R. 10-21). On or about February 4, 2016, Petitioner filed a Notice of Petition, Verified Petition, Attorney Affirmation, and Memorandum of Law in support of the Petition. On or about March 7, 2016, Appellants’ served their Answer to Petition, Notice of Cross-Motion to Dismiss the Petition, Affidavit of Joan McNichol, Attorney Affidavit of Frank Miller, and the Memorandum of Law in Support of the Cross-Motion to Dismiss the Petition and in Opposition to the Petition. Petitioner filed a Reply Memorandum of Law on or about March 27, 2016. Appellants’ filed a Sur-Reply letter brief on or about March 31, 2016. Petitioner filed a Response to Appellants’ Sur-Reply on or about April 4, 2016. Appellants’ filed a letter objecting to Petitioner’s response letter on or about April 5, 2016. Oral argument was conducted on April 6, 2016. Petitioner filed a letter to the Court providing additional cases pertaining to the issues of timeliness and service of a request for arbitration on or about May 4, 2016. Appellants’ filed a Supplemental Memorandum of Law in Support of Cross-Motion to Dismiss and in Opposition to the Petition on or about May 4, 2016. (R. 7-9). The Decision and Order of the Honorable Charles C. Merrell was made on November 28, 2016 and this appeal followed. (R. 4-5). Appellants raised the following arguments in their Answer and Cross-Motion to Dismiss the Petition (R. II): 1. There was no valid demand to arbitrate and the time limit to serve a demand has expired. W0295374.1 3 2. There was no contract between Petitioner Michelle Widrick and Respondents to arbitrate. 3. Petitioner lacks standing to enforce the CBA. 4. To the extent Petitioner is able to file a grievance it is untimely. 5. There is no agreement to arbitrate with American Arbitration Association. The lower court found in Petitioner’s favor on all of these arguments in a well-reasoned and thorough 12-page decision, where the lower court found that the parties made a valid agreement to arbitrate, which covered issues of discipline and termination, and that Petitioner has complied with the agreement insofar as initiating arbitration. (R. 13). COUNTER-STATEMENT OF FACTS Petitioner had been employed as a 911 Dispatcher by the Lewis County Sheriffs Department for 17 years. (R. 26). As a dispatcher, Petitioner was a member of the Local 825 CSEA Bargaining Unit. Petitioner was summarily terminated by the Sheriff for alleged “serious misconduct.” The alleged “misconduct” surrounded an incident that occurred on Monday, August 17, 2015. (R. 26 and 31-54). The Incidents of August 17, 2015 and the Sheriff’s Coercive Tactics On August 17, 2015, while on a break from her regular shift, Petitioner left the Public Safety Building (PSB) to give petitions nominating Deputy Todd Galameau as candidate for Lewis County Sheriff to Deputy Daryl Ortlieb. (R. 26). The Petitions were in Petitioner’s personal vehicle. Deputy Ortlieb had gathered the signatures on the petitions and was required to sign them as the subscribing witness. (R. 27). Evidently, the Sheriff was either aware of the petitions and/or suspicious that Deputy Ortlieb and Petitioner were participating in Deputy Galameau’s election campaign against him as W0295374.1 4 incumbent. He was apparently watching them with binoculars from his office inside the PSB. (R. 27). The Sheriff then walked out of the PSB and confronted Deputy Ortlieb and Petitioner regarding our actions that he allegedly saw through the binoculars. Ortlieb and Petitioner did not disclose that the documents were election petitions and simply stated that they were personal in nature. (R. 27). Later that same day, the Sheriff called Deputy Ortlieb and Petitioner into his office and questioned them further. He requested that they disclose the content of the documents. Petitioner insisted that they were related to a personal matter and declined to disclose their contents. Petitioner believed that she could face discipline for supporting another candidate’s campaign against the Sheriff. (R. 27). That conversation was apparently recorded and was provided to the lower court in Deputy Ortlieb’s related proceeding. The transcript of that recording was produced by the County in the Ortlieb matter. (R. 27 and 55-82). On August 21, 2015, the Sheriff requested that Petitioner meet with him again. He informed Petitioner that she was the “subject of an investigation” and demanded Petitioner provide a “complete, accurate and truthful report” regarding the events of August 17, 2015. The provision of such statement was conveyed to Petitioner as “condition of employment.” He provided Petitioner with a “Notice of Investigation.” (R. 27 and 83). W0295374.I 5 Subsequent Request to Particiyate in the Sheriff’s “Investigation ” Shortly thereafter, Petitioner took twelve (12) weeks of medical leave pursuant to the Family Medical Leave Act. Petitioner was also aware that Deputy Ortlieb commenced a proceeding before the lower court, which matter is also on appeal, during the time she was on leave. (R. 28). Petitioner received medical clearance to return to work on Sunday, November 15, 2015. However, Petitioner was notified by Supervisor Cheryl LaLonde that Petitioner would not be placed on her regularly scheduled shifts per the Sheriffs request. (R. 28). Petitioner was informed by Union Representative Brenda Harwood that Petitioner was required to meet with the Sheriff and County Attorney Joan McNichol so that the Sheriff could “complete his investigation into the events of August 17” prior to her return to work. (R. 28). On advice of counsel, Petitioner submitted a sworn affidavit and a joint statement with Deputy Ortlieb concerning the events of August 17, 2015. Petitioner’s attorneys sent Petitioner’s sworn affidavit and joint statement to Attorney McNichol in lieu of meeting with the Sheriff. (R. 28 and 84-87). Also, due to a personal family matter, Petitioner was out of New York State during the critical period of time from November 19 to November 29, 2015. (R. 28). Termination of Employment and Notice of Intent to Grieve On November 19, 2015, the Sheriff sent a letter to Petitioner, dated November 18, 2015, terminating her, effective immediately, from employment with the Lewis County Sheriffs Department. (R. 28 and 88). The document stated that Petitioner was to be terminated for W0295374.1 6 reasons that were to be provided within five (5) work days from the “termination action.” (R. 28 and 88). Petitioner subsequently received a “ Notice of Statement of Charges Pursuant to Civil Service Law Section 75 and the CBA”, dated November 25, 2015, which provided a statement of the specific charges for which Petitioner was being terminated. (R. 29 and 89-92). On November 29th, on advice of counsel, Petitioner sent a written statement dated November 29, 2016, to Attorney McNichol, indicating her election, under the CBA, to grieve the Sheriffs determination to terminate her employment. This response was made within five work days of being notified that Petitioner was facing disciplinary action. (R. 29 and 93). Also on November 29, 2015, Petitioner was copied on a correspondence that her attorneys sent to Attorney McNichol in which they indicated that they were in receipt of those documents and requested that Attorney McNichol contact the American Arbitration Association to initiate the process for appointing an arbitrator. (R. 29 and 100). The Appellants ’ Refusal to Arbitrate the Grievance On December 9, 2015, Petitioner was carbon copied on a follow-up letter from Petitioner’s attorneys to Attorney McNichol, again requesting that she make arrangements for the grievance procedure to go forward. (R. 29 and 101). From a letter by Attorney McNichol to Petitioner’s attorneys, dated December 10, 2015, Petitioner was made aware that the County decided that it considered the matter closed and had no intention to go forward with the arbitration, thereby making Court intervention and the Article 75 Petition necessary. (R. 29 and 102). W0295374.1 7 LEGAL ARGUMENT POINT I PETITIONER HAS MADE A VALID DEMAND TO ARBITRATE AND THEREFORE, THE COURT BELOW HAD JURISDICTION TO CONSIDER THE PETITION The central issue before the lower court in the Article 75 proceeding was (1) whether Petitioner submitted her election, under the Collective Bargaining Agreement, to grieve the Sheriffs determination to terminate her employment within the required five work days and satisfy the requirements to compel arbitration, (2) if subsequent letters from Petitioner’s counsel complied with the terms of the CBA or CPLR §7503(c) and (3) whether Petitioner has standing to request to grieve her alleged termination by the Sheriff. The Article 75 proceeding was limited to these discrete and limited issues and the lower court found in Petitioner’s favor on all issues of timeliness, standing and the sufficiency of Petitioner’s demand for arbitration. A. The Letter of Termination did not tris2er notice to Petitioner to demand Arbitration Appellants first argument on appeal is a mix of allegations that Petitioner’s letter demanding arbitration, was not technically correct or timely and/or that Petitioner did not have standing to demand arbitration under the CBA. (Appellants’ Brief pp. 5-12). In fact, Appellant’s repeat these arguments in one form or another throughout their brief, attacking the formality of the demand for arbitration letter and/or Petitioner’s standing to pursue the same. For example, Appellants state at pages 3, 4, 10, 11 and 24 of their Brief that Petitioner’s counsel’s letter requesting that the arbitration be through AAA is somehow fatal or makes the request for arbitration defective, when such error, if any, was de minimus and inconsequential, and not determinative of any significant issue in this proceeding. W0295374.1 8 First, Petitioner has demonstrated that she fulfilled the conditions to arbitrate under both Article 75 of the CPLR and the terms and conditions of the applicable CBA. (R. 53). Contrary to Appellants’ contentions, Petitioner submitted a timely and sufficient demand for arbitration. Appellants claim that the letter sent to Petitioner, dated November 18, 2015 (R. 88), triggered the five-day period for Petitioner to make an election under Article XXIII, Section 2B of the CBA, which letter itself appears to be defective as a notice of a right to demand arbitration, since it does not state any charges against Petitioner nor state that Petitioner has a right to arbitration, but merely tells Petitioner that she is terminated, without any rights whatsoever. Clearly, despite Appellants argument that this letter triggered the five-day period, the letter did not provide an adequate “ written statement of the reasons for which the discipline was imposed’ as required by the CBA (R. 53). The Sheriffs letter also promised Petitioner “ that within five (5) workdays from this termination action, you will be provided with a more detailed statement of reasons/charges for the termination.” (R. 88). This letter was not received by Petitioner until she returned to New York State on November 29, 2015. (R. 28 and 93). On very same day, Petitioner sent out her letter demanding arbitration. (R. 93). The statement of reasons that the Sheriff promised in his letter to Petitioner (R. 88) was provided in a document entitled “NOTICE & STATEMENT OF CHARGES PURSUANT TO CIVIL SERVICE LAW SECTION 75 & THE CBA.” (R. 89-92). This document was also received by Petitioner on November 29, 2015. (R. 93). It contained written notice of the charges sufficient to enable Petitioner to elect her remedy in a timely and informed manner. This W0295374.I 9 notice triggered the five-day period for Petitioner to elect her remedy regarding the termination of employment, and she did so in a timely and proper manner. B. Appellants Argument Regarding CPLR 7503(c) are Misplaced, Appellants argue that this proceeding should be dismissed because Petitioner allegedly failed to strictly comply with the requirements of CPLR § 7503(c). (Appellant’s Brief pp. 5-6). This argument is without merit as § 7503(c) has nothing to do with the issues in this matter. Subparagraph (c) of Section 7503 gives a party the right (i.e. “ may serve”), but not the obligation, to serve either a demand for arbitration or a notice of intent to arbitrate upon an opposing party. If that is done and the other party does not thereafter commence a special proceeding to stay arbitration under CPLR § 7503(b), it will be deemed to have waived such right. This statute creates a 20 day statute of limitations for a party to apply to stay arbitration. Otherwise, there is no statutory time limit for when such a proceeding may be commenced. (See, CPLR §7502 [b]) CPLR § 7503(c) is intended to “provide a method for prompt relief when the parties have agreed to arbitration as a remedy for disputes arising between them and to insure speedy judicial review of the threshold issues of arbitrability if arbitrability is contested.” Board of Education v. Palmyra-Macedon Faculty Assoc., 78 A.D.2d 765, 766 (4th Dept. 1980). The only consequence if a demand for arbitration does not strictly comply with CPLR § 7503(c) is merely to render the demand ineffective for the limited purposes of that subsection. It does not render the demand for arbitration ineffective. Initial Trends, Inc. v. Campus Outfitters, Inc., 58 N.Y.2d 896, 898 (1983) (citing Palmyra-Macedon Faculty Assoc., 78 A.D.2d at 766); see also, Cooper v. Bruckner, 21 A.D.3d 758, 759-760 (1st Dept. 2005) (“7o the extent W0295374.1 10 [petitioner’s] demand failed to comply with CPLR 7503(c) by not specifying the agreement pursuant to which arbitration is sought and warning that unless [appellants] applied within 20 days to stay arbitration he would be precluded from claiming in court that a valid agreement was not made or that conditions precedent to the agreement were not satisfied, such omissions do not render the demand invalid. They merely rendered the demand ineffective to preclude [appellants] from raising threshold issues after the 20-day limit.”). Here, Appellants had actual notice of the demand to arbitrate and an opportunity to judicially review any objections whether arbitration was an appropriate remedy and should be heard by the arbitrator. See, Palmyra-Macedon Faculty Assoc., 78 A.D.2d at 766. C. Petitioner’s letter of November 29, 2015 did request arbitration and did constitute a “Notice of Intent to Arbitrate”. Petitioner’s letter, therefore, sent to the County on November 29, 2015, and the same day that she received Appellants letter and charges, did comply with the CBA in clear and plain language, where Petitioner 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 between the County of Lewis and the Lewis County Unit of the Lewis Local 825 of the Civil Service Employees’ Association.” (R. 93). All of Appellants’ arguments regarding Petitioner’s letter are hyper-technical and exult form over substance, based on parsing the exacts words used over the plain meaning of what is being said. The lower court rightly found that despite Appellants throwing up various technical objections, which can be heard by the arbitrator, if necessary, that Petitioner’s notice of her election to proceed with the arbitration process “effectively constitutes the demand for {W0295374.1}W0295374.1 11 arbitration.” (R. 21). There can be no dispute what Petitioner was demanding and there can be no dispute that Appellants understood what was being demanded, despite any claims to the contrary. D. Petitioner’s counsel’s letters of November 30, 2015 and December 9, 2015 did comply with CPLR ft 7503(c) and whether Arbitration was Administered by PERB or the AAA is not the issue Appellants’ once again state various arguments against Petitioner’s counsel’s letters regarding arbitration (R. 100-101), even though Petitioner’s letter (R. 93) constituted a proper demand for arbitration, and the inquiry should stop there as found by the lower court. Here, Appellant’s find fault again with Petitioner’s counsel’s reference to AAA, and then finds fault with the fact that the letter does not state what agreement gives rise to the right to arbitration, and then repeats the standing argument again, and then finally states that counsel’s letter does not comply with CPLR 7503(c). (Appellants’ Brief pp. 9-12). All of these arguments were addressed with the lower court and found in Petitioner’s favor and are addressed herein again throughout this brief. As to the AAA issue, the lower court stated that“it is hard to fathom how this language could not be reasonably considered a demand for arbitration pursuant to the CBAP (R. 14). The AAA issue is a non-issue or a red herring at best. POINT II PETITIONER’S CORRESPONDENCE COMPLIED WITH CPLR § 7503 AND CAN INVOKE THE COURT’S JURISDICTION TO COMPEL ARBITRATION Appellants' further contend that the Notice of Intention or Demand to Arbitrate did not comply with CPLR §7503(c) in form or service and thus there is no obligation for Appellants to arbitrate. (Appellants’ Brief pp. 12-13). However, as the lower court found, such issues as the W0295374.1 12 form of service are for the arbitrator to decide (Cooper v. Bruckner, 21 AD3d 758 [1st Dept. 20051), as they do not implicate any procedural requirements or conditions precedent to arbitration (Matter of Rockland County (Primiano Const. Co.) 51 NY2d 1, 7-8 (1980); See also, Zurich Ins. Co. v. R. Electric Inc., 5 AD3d 338 (1st Dept. 20041). As to these several alleged defects, while it is true that the lower court did find that the technical formalities of §7503(c) were not followed in Petitioner’s letter, the lower court also found, as noted above, that it is hard to fathom how this language could not be reasonably considered a demand for arbitration pursuant to the CBA. (R. 14). While Petitioner's letter of November 29, 2015, nor her attorneys' letter of November 30, 2015, were served in the same manner as a summons or by registered or certified mail as required by CPLR 7503(c), such defects, if any, are neither fatal nor determinative and such arguments assume that the requirements of CPLR § 7503(c) in this regard are mandatory and not elective. Thus, Appellants contend that there was no "demand" for arbitration, although the letter from Petitioner's counsel requests the County Attorney "to initiate the process for appointing an arbitrator.” (R. 100). Further, there is no question that the demand for arbitration states the issue to be arbitrated with sufficient particularity, although the letter from Petitioner's counsel mistakenly requests arbitration through the American Arbitration Association and not PERB, which again assumes that there is any such requirement or that not following any such requirement is fatal to the demand for arbitration. The lower court did find that CPLR § 7503(c) does not require the notice of intention to arbitrate to specify the arbitrator, nor does Article XXIII(2)(A) and (B) of the CBA require any such specification. (R. 14). W0295374.I 13 While Appellants variously argue that such defects, if any, are fatal or render the letters demanding arbitration “void,” the lower court found that Petitioner's failure to strictly comply with the statutory method of service does not mandate dismissal of the proceeding. The only consequence of improper service, where it is undisputed that Appellants had actual notice of the demand, and an opportunity to judicially review whether arbitration was an appropriate remedy, is to toll the twenty (20) day time limit on Appellants' motion to stay arbitration, but otherwise there is no such consequence. (Board of Education v. Palmyra Macedon Faculty Association, 78 AD2d 765 [4th Dept. 1980]; Cooper v. Bruckner, supra 21 AD3d 758). POINT III THE COURT BELOW DID NOT ERR WHEN IT DEFERRED ALL QUESTIONS REGARDING THE FORM OR MANNER OF SERVICE TO THE ARBITRATOR Appellants next argue that it was error for the lower court to defer questions regarding the content or manner of service of Petitioner’s letter to the arbitrator. (Appellant’s Brief pp. 13-14). However, Petitioner’s petition to the lower court did not raise this panoply of issues as alleged by Appellants, but instead, only sought an order from the lower court compelling Appellants to arbitrate the validity of her termination. Petitioner asserts, first, that there is no substantial question whether the parties have a valid agreement to arbitrate and, second, that the claim sought to be arbitrated is not barred by any limitation period. Under CPLR 7503(a), these are the only issues to be decided and the hyper-technical arguments raised by Appellants are challenges to arbitrability. It is well established that those arguments are ones for the arbitrator to decide. Once a valid agreement providing for arbitration has been entered into, any controversy arising between the parties to the contract which is within the compass of those provisions must proceed to arbitration (Matter of Exercycle W0295374.1 14 Corp. [Maratta], 9 N Y 2d 329, 334). ... If the issue is solely one of construction or interpretation, it is for the arbitrators and not the courts to decide {Matter of Exercycle Corp. [Maratta], supra, pp. 334-335). It is an accepted rule that where a labor agreement contains an arbitration provision, there is a presumption that questions of arbitrability are for the arbitrator {Matter of Long. Is. Lbr. Co. [Martin], 15 N Y 2d 380, 384). The presumption of arbitrability applies with the same force to questions of substantive arbitrability as it does to questions of procedural arbitrability {id. at 384). The Court of Appeals has held that the court's function is limited to finding that a dispute, whether tenable or not, does in fact exist. Bd. ofEduc. v Chautauqua Cent. Sch. Teachers Assoc., 41 AD2d 47, 50 (4th Dept. 1973). The Second Department reaffirmed the limited role of the judiciary in these circumstances in Triborough Bridge & Tunnel Auth. v Dist. Council 37, 56 AD2d 890, 891 (2nd Dept. 1977), where it stated: It is well settled that, with respect to both public and private employees, "questions of timeliness and compliance with step-by-step grievance procedures, prior to formal and final binding arbitration, are questions of 'procedural arbitrability'" which "must be left to the arbitrator" {Matter of Long Is. Lbr. Co. [Martin],15 NY2d 380, 386; Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 NY2d 599, 607; Belmont Cent. School Dist. v Belmont Teachers Assn., 51 AD2d 653). ... a question either of procedural arbitrability or of a "dispute concerning the application or interpretation of this collective bargaining agreement"; in either case, it is a question for the arbitrators (See, Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380, 386, supra). Therefore, it was correct for the lower court to leave these issues of arbitrability to the arbitrator, and that the only question for the lower court to answer were the issues raised in the Article 75 Petition to compel arbitration. W0295374.1 15 POINT IV PETITIONER DID NOT LACK STANDING TO ENFORCE THE DISCIPLINE SECTION OF THE COLLECTIVE BARGAINING AGREEMENT Appellants’ next argument on appeal is that Petitioner is precluded from pursuing the grievance since the agreement provides that only the CSEA may demand arbitration. (Appellants’ Brief pp. 14-20). Appellants’ assert that the grievance is "owned by" the County and the CSEA, and that they are the “gatekeeper,” while further stating that Petitioner lacks authority or standing to pursue arbitration under the CBA. (Appellants’ Brief p. 18 and 22). This argument is inaccurate in two respects. First, the CBA gives Petitioner the right to elect to arbitrate her grievance. Second, the CSEA has not raised any issue or objection to the right of the Petitioner to grieve and pursue arbitration in this matter and has nowhere stated that they “own” the grievance, exclusive of Petitioner or any covered bargaining member. Appellants’ Brief, in this section, is also remarkable for the lack of case law that is cited or relied upon. In their Point IV, from the bottom of page 15 to page 18 of the Brief, Appellants do not cite a single case to support their position, but merely quotes the CBA wherever it mentions the CSEA’s rights under the CBA. However, the lower court also quotes the CBA, in relevant part, to show that the Petitioner has the right to pursue her own grievance and demand arbitration, which is the real and only issue in this matter. While the Appellants focused on Article IV (and Article I and II from the CBA), the lower court rightfully focused on Article XXIII-Discharge & Discipline, which is the controlling provision of the CBA on this issue. W0295374.1 16 A. Petitioner has the Contractual Right to Arbitrate the Grievance. First, the language of the CBA must be reviewed to determine whether Petitioner has the right to bring a petition individually to compel arbitration of her grievance (Diaz v. Pilgrim State Psychiatric Center, 62 NY2d 693 [1984]). The general rule is that a union member may not sue the employer directly for breach of a collective bargaining agreement unless the collective bargaining agreement provides otherwise, or when the union fails to represent the employee fairly (Clark v. County of Cayuga, 212 AD2d 963 (4th Dept. 1995); Buff v. Village of Manlius, 115 AD3d 1156, 1154 (4th Dept. 2014)). Petitioner, here, has not alleged that the union breached its duty of fair representation, nor is she suing her employer. However, the CBA permits individual members/employees to elect to pursue the grievance and arbitration in the case of termination (Article XXIII Section 2(A) and 2(B) -R. 53). There is no language in the CBA, particularly in Article XXIII, expressly or implicitly permitting (or prohibiting) direct action by the individual employee in the case of a refusal to arbitrate a grievance based on an alleged wrongful termination (Matter of Board of Education Commack Union Free School District v. Ambach, 70 NY2d 501 (1987)). Where the CBA specifically allows the employee who is the subject of a disciplinary proceeding to select his own attorney or representative, and elect to demand arbitration, as is true here, the member may have standing to bring a proceeding to vacate any arbitration award. (Diaz v. Pilgrim State Psychiatric Center, supra 62 NY2d 693; Altamore v. Newsday Inc., 175 AD2d 684 [4th Dept. 1991]). The employee has the right to be represented at all stages of the grievance process, "if the employee so chooses". The CBA therefore designates the union as the W0295374.1 17 exclusive representative for contract negotiations, but not the exclusive agent for the handling of disciplinary matters, where the employee may elect on how to proceed and retain their own counsel. The CBA emphasizes that the grievance and arbitration procedures are intended to “ establish a more harmonious and cooperative relationship between the County Government and its Pubic Employees” and that “the provisions of this resolution shall be liberally construed for the accomplishment of this purpose (Emphasis added). (R. 38). The procedures for grievance and arbitration in the case of "Discharge and Discipline" under Article XXIII, which control on this issue, are quite different from the Article IV Section regarding Grievance and Arbitration, and appear inconsistent in certain respects. In the case of discipline, the individual employee/member is granted the right to pursue arbitration against the employer. Section 2 provides as follows: 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 employee may be processed as a grievance through 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 Civil Service Law, as such employee may elect. The election of either procedure precludes the use of the other. (R. 53). B. Such employee must indicate in writing to the Department Head within five (5) 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 the rights provided by Section 75. Failure to exercise such option as provided will automatically foreclose use of the grievance and arbitration procedure. (R. 53). W0295374.1 18 Article XXIII Section 2(B) thus gives an employee covered by Civil Service Law Section 75 the right to elect "the grievance and arbitration procedure", referred to in the previous Subsection 2(A) as the "regular grievance procedure." The "regular" grievance procedure is presumably found in Article IV, although there is no specific reference to Article IV, and there is no separate "grievance and arbitration procedure" defined in Article XXIII. In the case of termination it appears in large part that the procedure for grievance resolution found in Article IV Section 4 would, as a practical matter, be bypassed. Article XXIII Section 2 by its terms deals with discipline and does not clearly define a process to grieve a termination, when read in conjunction with Article IV. Even Appellants’ Brief seems to be in agreement with this analysis where they state:“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.” (Appellants’ Brief p. 8). Appellants even refer to the grievance process of “progressive discipline” in Article IV, Section 4, but Appellants never offered Petitioner any progressive discipline- they just summarily terminated her without any warning or due process whatsoever. (Appellants’ Brief p. 7). Please see the very terse statement from the County Attorney that “[PJursuant to the terms of the collective bargaining agreement, there is no recognized grievance filed and the County considers the matter closed.” (R. 102). There is no hint here that Appellants were following Article IV of the CBA or progressive discipline. The State's public policy to encourage the voluntary resolution of public employee contractual disputes applies equally to procedural and substantive matters arising out of the CBA W0295374.1 19 (West Irondequoit Central School District v. West Irondequoit Teachers Association, 55 AD2d 1037, 1038 (4th Dept. 1977)). Giving due deference to the liberal construction of the CBA specifically agreed to by the parties, in the case of termination, Petitioner in this case has the right to seek arbitration and standing to compel the same in court. Petitioner complied with all requirements for initiating the arbitration process prescribed by the CBA. Thus, Appellants should be compelled to arbitrate the grievance challenging her termination. B. Nothing Prohibits the CSEA from Assigning the Grievance Appellants argue that Article IV, Section 5 gives the CSEA the right to arbitrate disputes, again pretending to ignore the controlling section of Article XXIII. However, the real question is whether Petitioner may pursue arbitration at her own expense as a member of the bargaining unit. The Second Department has stated the following regarding the inherent and broad authority of a union on issues related to the handling of grievances: A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. (Citation omitted). Just as a union must be free to sift out wholly frivolous grievances which would only clog the grievance process, so it must be free to take a position on the not so frivolous disputes. Jacobs vBd. ofEduc., 64 AD2d 148, 154 (2nd Dept. 1978). There is no provision in the CBA that prevents the union from assigning that right to a covered member who is a beneficiary of the agreement. The CBA is a “collective” agreement for the benefit of the union members. If there is a reason a member cannot personally arbitrate a grievance, the union would have standing to raise such an issue. However, Appellants should not W0295374.1 20 be able to escape responsibility to its employees by challenging that assignment or trying to assert an argument that the union has never asserted. Appellants cite the case of Chupka v Lorenz-Schneider Co., 12 NY2d 1 (1962), where the court held that an arbitration award rendered under a collective bargaining agreement between an employer and an employee union “may be vacated only at the instance of one of those two parties, and not by an individual employee,” which is not the disputed issue in the instant action (Id. at 6). Clearly, Petitioner has standing to proceed with the grievance and arbitration, through her own counsel, upon her termination of employment by Appellants. C. The cases cited by Appellants are inapposite and not controlling Finally, at page 19 of their Brief, Appellants cite two cases, neither of which are controlling or on point. In the case of Clark v. County of Cayuga 212 A.D.2d 963 (4th Dept. 1995), a lawsuit was filed by a retiree against his former employer and the court stated that “ Plaintiff has no right to sue his former employer directly for its alleged breach of a Collective Bargaining Agreement. ... Id. However, in the instant matter, Petitioner is not suing Appellants, she is merely filing a Petition to compel arbitration after the Appellants wrongfully denied her right to arbitration. Petitioner is not bringing suit or suing anybody, she is just demanding her right to arbitration through Article 75 of the CPLR. Similarly, in the case of Matter of Reese v. Board of Trustees of Mohawk Valley Community College, 28 A.D.3d (4th Dept. 2006), a college professor brought an Article 78 petition seeking to enforce his rights to health insurance benefits, where again, the court found that “ Petitioner has no right to sue his former employer directly for its alleged breach of a W0295374.I 21 Collective Bargaining Agreement. ...” Id. The Petitioner herein is not “suing” her employer, she is simply and merely demanding arbitration, which is her right to do under the CBA. POINT V AN AGREEMENT TO ARBITRATE EXISTS BETWEEN PETITIONER AND APPELLANTS IN THE DISCIPLINE SECTION OF THE CBA Appellants repe again the same basic argument that Petitioner is not a party to the CBA, as stated throughout their brief in various forms. (Appellants’ Brief pp. 20). First, CPLR § 7503 (a) gives the lower court the authority to compel the parties to arbitrate. “A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration.” CPLR § 7503. Here, Petitioner, as the aggrieved party, has a well-established and mutually agreed upon right to arbitration with the County under the CBA. Article XXIII § (2)(A) of the CBA provides in part: “Any disciplinary action or measure imposed upon an employee may be processed as a grievance through 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 Civil Service law as the employee may elect." (R. 53). (Emphasis added). The CBA is explicit and unambiguous in its terms that covered employees are given the option of grieving against disciplinary actions, including termination, through either arbitration or with Section 75 charges. Under the CBA, the decision of which type of proceeding is used for grievance is left to the employee’s discretion - as the employee may elect. There is no dispute that Petitioner is a covered employee under the CBA. As a covered employee, Petitioner has the right to challenge Appellants disciplinary action by submitting it to arbitration. W0295374.1 22 Appellants presumably in anticipation of Petitioner’s election of either arbitration or a Section 75 proceeding, drafted and served the “ Notice of Statement of Charges Pursuant to Civil Service Law Section 75 and the CBA.” (R. 89-92). This correspondence was the first notice Petitioner received that stated the specific charges and allegations for which the County terminated her. If the Petitioner were to elect a hearing pursuant to Section 75 of the Civil Service law, such action would have entailed a thirty-day suspension during the procedure. (See, NY Civ. Serv. § 75). In light thereof, Petitioner formally elected to grieve her termination through arbitration, as was her exclusive right to elect, once having been informed of what the charges were and taking her measure of them. Therefore, Petitioner was a party to the agreement, had standing to so proceed, and had the exclusive right to so elect. POINT VI PETITIONER’S DEMAND TO ARBITRATE DID COMPLY WITH THE CONDITION PRECEDENTS CONTAINED WITHIN THE CBA Appellants argue again that Petitioner did not comply with the conditions precedent to arbitrate this dispute, such as not referencing the PERB in the demand letter or the timeliness of the letter. (Appellants’ Brief pp. 21-24). Interestingly, while Appellants argued in Point IV and V that only the CSEA has standing to demand arbitration, in Point VI, Appellants refer numerous times to the employee’s right to exercise the election to seek arbitration. (See, Appellants’ Brief pp. 22-24 for about eight references to the employee’s rights under the CBA). Appellants even cite Suffolk Regional OTB v. Local 517S, 270 A.D.2d 351 (2d Dept. 2000), where the Appellate Court held that utilization of the grievance process by the discharged employee was a condition precedent to gain access to the arbitration forum. W0295374.1 23 As a threshold matter, the lower court sought to determine whether Petitioner's alleged failure to elect the grievance and arbitration procedure within five days of "notification that disciplinary action is being imposed" involves a condition precedent to arbitration or involves a procedural matter - a condition "in arbitration", which again, is a matter to be resolved by the arbitrator (Matter of County of Rockland, supra, 51 NY2 at 8-9). First, please note, as stated above, in Point I that Petitioner asserts herein that she met the five-day notice requirement. However, as also noted above, and as noted by the lower court, issues concerning compliance with contractual step-by-step grievance procedures must be resolved by the arbitrator, not the Courts. Matter of Dobbs Ferry Union Free School District, 74 AD2d 924 (2nd Dept. 1980); Board of Education of Cattaraugus Central School v. Cattaraugus Teacher's Association, 84 AD2d 685 (4th Dept. 1981); Dansville Central School District v. Dansville Teacher's Assoc., 86 AD2d 962 (4th Dept. 1982). A condition precedent must be established by express language. (See, e.g. In re Livingston County, 101 AD3d 1697 (4th Dept. 2012), where the contract clearly provided that submission of a notice of intent to arbitrate "shall be a condition precedent .... " Section 2(B) of Article XXIII sets forth the operative language: "Failure to exercise such option as provided will automatically foreclose use of the grievance and arbitration procedure". As noted above, there is no explicit provision that the employee's timely election operates as a condition precedent to arbitration. Further, in the case of termination, under the language of Article XXIII of the CBA, the employee's election to proceed under the grievance and arbitration process effectively constitutes the demand for arbitration. There is no further notice required under W0295374.1 24 Article XXIII to seek arbitration. As such, the "election" is not a condition precedent to the entitlement to arbitration, but operates as the demand itself, the timeliness of which is a matter to be resolved within the CBA by the arbitrator. Here, Petitioner has satisfied all conditions required to invoke her right to arbitration under the CBA. Article XXIII § (2)(B) of the CBA states: Such employee must indicate in writing to the Department Head within jive (5) 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 the rights provided by Section 75. Failure to exercise such option as provided will automatically foreclose use of the grievance and arbitration procedure. (R. 53) (Emphasis added). Both Petitioner and counsel provided written statements to Appellants which clearly communicated that Petitioner elected to exercise her rights under the CBA to commence a grievance and arbitration procedure challenging her termination. (R. 93 and R. 100-101). Petitioner submitted her request for arbitration immediately upon returning to New York State after tending to an urgent family matter in Texas from November 19 to November 29. (R. 28). In accordance with the CBA, Petitioner’s and counsel’s written statements were submitted within five work days after Petitioner received written Notice and Statement of the Charges and disciplinary action against her (R. 89-92). All conditions precedent under the CBA were satisfied. CONCLUSION Based on the foregoing, it is respectfully submitted that the lower court was correct in granting Petitioner’s Article 75 Petition, and denying Appellant’s request to dismiss the Petition W0295374.1 25 and/or stay arbitration, since the lower court heard and decided the central issue before it, which was the request for arbitration, based on the complete record before it, and Petitioner respectfully requests this Court to affirm this decision in all respects, f A- . X-7 /Dated: May 10, 2017 Stephen Ciotoli O’HARA, O’CONNELL & CIOTOLI Attorneys for Petitioner-Respondent 7202 East Genesee Street Fayetteville, New York 13066 Tel: (315) 451-3810 TO: Frank W. Miller THE LAW FIRM OF FRANK W. MILLER Attorney for Respondents-Appellants 6575 Kirkville Road East Syracuse, New York 13057 W0295374.1 26