Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, October 27, 2008

Distinguishing Between Employees Is Not A Breach of The Duty Of Fair Representation

Collective bargaining often involves line drawings. Unions cannot always get the same amount of benefits for all classes of employees. Calkins v. PBA, ___A.D.3d___(4th Dep't. Oct. 3, 2008), is an important decision because it recognizes that such choices do not breach the duty of fair representation. As the court stated:

  To establish that a bargaining agent breached its duty of fair representation, a plaintiff must show that the bargaining agent's conduct was arbitrary, discriminatory, or in bad faith (see Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, 196). " [T]here must be substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate . . . objectives [of the bargaining agent]' " (Mellon v Benker, 186 AD2d 1020, 1021). [*2]

Here, the fact that defendant treated the Special Troopers differently from other State Troopers represented by defendant in its negotiations for a new CBA does not amount to a violation of the duty of fair representation. Defendant met its initial burden on the motion by establishing that it undertook "a good-faith balancing of the divergent interests of its membership and [chose] to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees" (Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters, 64 NY2d at 197), and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to plaintiffs' contention, the record establishes that defendant did not misrepresent its negotiating position in a "Contract Update" memorandum sent to its members. That memorandum expressly provides that the Special Troopers were excluded from "all new monetary aspects of the contract." In any event, even assuming, arguendo, that defendant did misrepresent the negotiating positions of the parties in that memorandum, we cannot conclude on the record before us that such conduct was arbitrary, discriminatory or in bad faith (see Matter of Buffalo Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 286 AD2d 993).

Though this case arose in the public sector, it should be applicable in the private sector as well.

Mitchell H. Rubinstein

Hat Tip: New York Public Personnel Law

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Duty of Fair Representation, Public Sector Labor Law | Permalink

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