IN RE OF CITY EMPL UN LOCAL 237, IBT AFL-CIO

Supreme Court erred in granting this petition. Petitioner initially alleged that DOE wrongfully terminated one of its membership in violation of the Civil Service Law. However, after the court correctly rejected those claims, petitioner alleged a violation of the parties' collective bargaining agreement in that it requires that the union receive advance notice of layoffs and an opportunity to meet with DOE officials to discuss "feasible alternatives to all or part of such scheduled layoffs." Since such dispute fell within the ambit of the "Complaint and Grievance Procedure" of the parties' collective bargaining agreement, petitioner was bound, in the first instance, to proceed in accordance with the agreement and not bring suit directly against the employer ( Matter of Board of Educ., Commack Union Free School Dist. v. Ambach, 70 NY2d 501, 508, cert denied sub nom. Margolin v. Board of Educ., Commack Union Free School Dist., 485 US 1034 ["Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer"]). Consequently, at that point, in the absence of a showing of any grounds for CPLR article 78 relief or of the futility of pursuing the grievance procedure, the petition should have been dismissed ( see Matter of Moreira-Brown v. New York City Bd. of Educ., 288 AD2d 21; Parisi v. New York City Hous. Auth., 269 AD2d 210; Matter of Sapadin v. Board of Educ. of City of N.Y., 246 AD2d 359).