Standing to appeal an arbitrator's determinationDelgado v NYC Board of Education, 272 AD2d 207, Leave to appeal denied, 95 NY2d 768 The basic issue in the Delgado case concerns the right of an individual to bring a lawsuit involving the same issue[s] considered by an arbitrator in resolving a grievance filed in accordance with procedures negotiated under the Taylor Law. John Delgado, an employee of the Board of Education Office of School Food and Nutritional Services, was terminated from his position. His grievance protesting his dismissal was denied by an arbitrator. In an effort to vacate or modify an arbitration decision rejecting his grievance challenging his termination of his employment Delgado filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the arbitrator's award. The Board of Education opposed Delgado's motion. The Appellate Division affirmed a lower court ruling summarily dismissing Delgado's petition. The court's rationale: Delgado lacks standing to bring the instant petition since he was represented by the union at the arbitration. Significantly, the Appellate Division said that although the issue of standing was first raised by the Board of Education in its appeal, it presented a question of law — did the court have jurisdiction to adjudicate Delgado's petition — that could not have been avoided had it been raised before the lower court. Accordingly, it was proper to raise, and the court to consider, the question of jurisdiction at the appellate level. In other words, if Delgado did not have standing to bring the Article 75 action, the courts may not consider his petition in the first instance and that issue — jurisdiction — may be raised by a party at any stage of the proceeding. Clearly, had the union filed an Article 75 petition challenging the arbitrator's determination, it would have found to have standing. It is generally held that unless the Taylor Law agreement includes an uncommon provision — allowing an employee himself or herself to demand arbitration of his or her grievance independent of the union — the right to demand that a grievance be submitted to arbitration is vested exclusively in the employee organization.* Accordingly, as a general rule, only the union has to right to challenge an adverse determination by the arbitrator by filing an Article 75 petition seeking to vacate or modify the award. * Such a limitation is tempered, however, and the individual is typically permitted go forward with the arbitration in the event he or she can demonstrate that the union failed in "its duty of fair representation."
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