Employee’s claim that her employee organization breached its duty of fair representation rejected as untimely

Nabors v Town of Somers, 2008 NY Slip Op 06972, decided on September 16, 2008, Appellate Division, Second Department

Elizabeth Miller Nabors sued both. her former employer, the Town of Somers, alleging that she had been wrongfully terminated and her negotiating unit representative, CSEA Local 1000, claiming that CSEA had breached its duty of fair representation by arbitrarily and capriciously denying her request to provide her with legal representation in a disciplinary hearing.

Supreme Court granted CSEA’s motion to dismiss the complaint insofar as asserted against it and granted the application of the Town of Somers to convert the action against it to a CPLR article 78 proceeding, and to transfer the converted proceeding to the Appellate Division.

The Appellate Division vacated the lower court’s action with respect to the Town’s motion, ruling that the Town of Somers raised objections in its answer that could terminate the proceeding and therefore converting the proceeding was premature. Further, said the court, the record before it “does not include transcripts of the disciplinary hearing,” and thus the record “is insufficient for us to decide whether the determination of the Town of Somers was supported by substantial evidence.”

As to that branch of Nabors involving CSEA, the Appellate Division, citing CPLR Section 217[2][a], said that a cause of action alleging that an employee organization such as CSEA has breached its duty of fair representation begins to accrue "within four months of the date the employee or former employee knew or should have known that the breach has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later." Agreeing with Supreme Court that Nabors “knew or should have known of an alleged breach was shortly after February 17, 2006, when the plaintiff admittedly received a letter from CSEA denying her request for legal representation.” However, the decision continued, the letter preceded the dates of the disciplinary hearing conducted by the Town, the date that the Nabors suffered "actual harm" was July 5, 2006, and/or July 6, 2006, when she appeared at the disciplinary hearing without counsel as a direct result of the refusal of CSEA to represent her.

However, Nabors had not commenced her action against CSEA until August 2007 and thus, said the Appellate Division, her claims

The Appellate Division modified Supreme Court’s order by deleting its granting that branch of the application of the Town of Somers to transfer the converted proceeding insofar as asserted against the Town to the Appellate Division, letting the lower court’s order granting CSEA’s motion to dismiss Nabors’ allegations against it. As the costs incurred by the parties in prosecuting the appeal, Nabors was directed to pay CSEA’s costs and the Town was directed to pay Nabors’ costs.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06972.htm

Reprinted with permission from New York Public Personnel Law. For subscription information contact publications@cap.rr.com. Mention Adjunct Law Prof Blog for a free extended 45 day trial.

Mitchell H. Rubinstein