Theresa Aloi Et Al. v. Board Education West Babylon Union Free School District

through 10, 1978, the schools in which the employees worked were closed due to a snow emergency and the employees did not work on those days. Subsequently, on the make-up school days, the employees worked and were paid. The relevant clause in the collective bargaining agreement states: "When schools are closed because of snow on a regular school day, Food Service Workers will be paid as per their average work day." Pursuant to regulations promulgated by the board of education, a grievance was submitted by the West Babylon Non-Teaching Unit of the Civil Service Employees Association, which represented the food service employees. In the final step of the procedure, the board of education denied the grievance. The individual employees and their union bring this action seeking (1) a declaration of their rights under the collective bargaining agreement, and (2) money damages representing wages for the snow days of February 6 through 10, 1978. Initially we note that the individual members of the union have no standing to assert a claim under the collective bargaining agreement, except through their union (see Berlyn v Board of Educ., 80 A.D.2d 572). However, since the union is a party plaintiff the action need not be dismissed. The board of education, referring to its regulation which states that "The report of the Board of Education shall be final", contends that the courts cannot review its determination. We disagree. The regulation cannot preclude judicial review in the absence of a voluntary surrender of the unions right to resort to the courts to enforce the collective bargaining agreement (see Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 289). Nor does the unions submission of the dispute to the board of educations grievance mechanism result in a waiver of the unions rights. Otherwise, the failure of the union to avail itself of the remedy provided would preclude judicial review, under the exhaustion of administrative remedies rule (see Lewis v Macchiarola, 73 A.D.2d 663, affd 53 N.Y.2d 629). Special Term held that the notice of claim was untimely, since it was not served within three months of the accrual of the employees claim, pursuant to subdivision 1 of section 3813 of the Education Law. We hold that the board has waived noncompliance with the statute by adopting inconsistent regulations in the grievance procedure (see Matter of Florida Union Free School Dist. [Eastern Elec. Contr. Corp.], 75 A.D.2d 580). Moreover, the purposes of that section, to obtain evidence while it is still readily available and to adjust or make payment before litigation is commenced, are insured by the absolute bar against the union proceeding further if the notices required by each step of the grievance procedure are not timely filed (see Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 A.D.2d 85; Matter of Board of Educ. [Great Neck Teachers Assn.], 69 Misc. 2d 1061, affd 40 A.D.2d 950). Thus, the defendants regulations provide the only notice requirement that the union must meet (see Matter of Board of Educ. v Deer Park Teachers Assn., 66 Misc. 2d 794). Undisputably, the union has complied with all of the steps contained in the grievance procedure. Special Term also held that the Statute of Limitations had expired since the action was not commenced within four months of the date of the denial of the grievance by the board of education (see CPLR 217). The union, on behalf of its members, may properly bring a declaratory judgment action to construe their rights under the collective bargaining agreement (see Matter of OBrien v Board of Educ., 71 A.D.2d 605; Smith v Helbraun, 24 A.D.2d 518; Lecci v Nickerson, 63 Misc. 2d 756). The Statute of Limitations applicable to a declaratory judgment action depends upon the nature of the substance of the underlying claim (see Solnick v Whalen, 49 N.Y.2d 224). [81 A.D.2d 874 Page 876]