Adjunct Law Prof Blog

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration

 Mahinda v Board of Collective Bargaining, 2012 NY Slip Op 00636, Appellate Division, First Department

After an informal conference and "Step II" hearing, disciplinary allegations against Josephine Mahinda, a provisional employee, were sustained, and her employment with the New York City Department of Transportation was terminated.

Subsequently Mahinda failed to establish that her employee organization, the Organization of Staff Analysts, [OAS], breached its duty of fair representation by failing to advance to arbitration the grievance arising out of her termination. 

Although Mahinda argued that OSA should have processed her grievance to arbitration, the Appellate Division said that she had not established that an agreement providing for provisional disciplinary procedures had been negotiated pursuant to §65(5)(g)* of the Civil Service Law. §65(5)(g) authorizes the City and certain other public employers to enter such agreements in the course of collective bargaining..

After considering other theories advanced by Mahinda to support her argument that she was entitled to submit the matter to arbitration, the Appellate Division ruled that “there was no basis on which to grant [Mahinda’s] request….”

Nor, said the court, was there any basis for granting her request to review the City's underlying decision to terminate her. As a provisional employee, Mahinda could be terminated at any time, "without a hearing, for almost any reason, or for no reason at all," unless such action constituted an unconstitutional or unlawful action.

Finding that Mahinda failed to demonstrate that in terminating her employment the City violated Civil Service Law §65, which governs provisional appointments, or any other constitutional or statutory provision,"nor had  she demonstrated that her employment was terminated in bad faith or that the termination was arbitrary and capricious," the Appellate Division dismissed her appeal

* Civil Service Law §65.5(g) authorizes “The city of New York; and any other entities whose civil service and examinations are administered by the New York City Department of Citywide Administrative Services [DCAS] and an Article 14 [Taylor Law] employee organization, to enter into agreements to provide disciplinary procedures applicable to provisional appointees who have served for a period of 24 months or more in a position which is covered by such an agreement. Further, no such provisional employee is to be deemed to be permanently appointed, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. [N.B. Repealed December 31, 2014]

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00636.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

SDNY Issues Excellent Primer On Duty of Fair Representation

Ramlogan v. 1199, ___F.Supp. 2d _____(S.D.N.Y. Jan. 12, 2012), is an interesting case. The case is also an excellent primer on DFR law. Most interesting is footnote 3 where the court indicated that state law discrimination claims are preempted by federal DFR law. 

Mitchell H. Rubinstein

2d Circuit Summarizes DFR Standards

Messina v. Local 1199, ___F.3d____ (2d Cir. Oct. 31, 2011), is brought to your attention because it summarizes DFR law in the 2d Circuit. As the court explained:

To establish a hybrid § 301/DFR claim, a plaintiff mustprove that: (1) the union breached its DFR; and (2) the employerbreached a collective bargaining agreement.   White v. White RoseFood, 237 F.3d 174, 178-79 (2d Cir. 2001) (citing  DelCostello v.Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983)).A union breaches its DFR when its conduct is arbitrary,discriminatory, or in bad faith, Marquez v. Screen Actors Guild,Inc., 525 U.S. 33, 44 (1998), and there is a causal connectionbetween its wrongful conduct and the plaintiff's injuries,Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2dCir. 1998).  "A union's actions are arbitrary only if, in lightof the factual and legal landscape at the time of the union'sactions, the union's behavior is so far outside a 'wide range ofreasonableness,' as to be irrational."  Id. at 129 (quoting AirLine Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991))(other internal quotation marks omitted).  "This 'wide range ofreasonableness' gives the union room to make discretionarydecisions and choices, even if those judgments are ultimatelywrong."  Marquez, 525 U.S. at 45-46.  A union's actions are inbad faith if they are fraudulent, deceitful, or dishonest.  Simv. New York Mailers' Union No. 6, 166 F.3d 465, 472 (2d Cir.1999).A union's DFR is not breached where the union fails to process a meritless grievance, fails to process a grievance dueto error in evaluating its merits, Cruz v. Local Union No. 3,  34 F.3d 1148, 1153-54 (2d Cir. 1994), engages in mere negligentconduct or errors in judgment, Barr v. United Parcel Serv., Inc.,868 F.2d 36, 43-44 (2d Cir. 1989), or decides not to arbitrate a1Messina does not argue on this appeal that theUnion's decision was discriminatory. -5-grievance, see Vaca v. Sipes, 386 U.S. 171, 191-92 (1967)(finding individual employee does not have "absolute right" to arbitrate). . .

 

Mitchell H. Rubinstein

2d Circuit Dismisses DFR Suit Against Employer Because Union Did Not Breach Its Duty

Jones v. Local 1199, ___F.3d____(2d Cir. Sep't. 6, 2010), is an interesting case which summarizes applicable DFR standards one of which is that to prevail a plaintiff must establish BOTH a breach of duty by the union and a breach of contract by the employer. As the court explained:

 Because the district court properly concluded that

SEIU was entitled to summary judgment, it follows that the University was also entitled to

summary judgment. See Sanozky v. Int’l Ass’n of Machinists & Aerospace Workers, 415

F.3d at 282 (noting that to prevail on hybrid § 301/duty of fair representation claim, plaintiff

must demonstrate both that employer breached collective bargaining agreement and that

union breached duty of fair representation).

Mitchell H. Rubinstein

1st Dep't. Issues Major Public Sector DFR Decision

Rosioreanu v. NYC OCB, ___A.D.3d____(1st Dep't. Nov. 4, 2010), is a major DFR decision in New York Public Sector Labor Law. The First Department holds that BOTH the public employer and the union are necessary parties in any DFR litigation. As the court stated:

The application court correctly found the City, petitioner's public agency employer and petitioner's union to be necessary parties to this proceeding, but incorrectly held they could not be joined because the statute of limitations had run. "When a person who should be joined . . . has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned" (CPLR 1001[b]), and after joinder, the necessary parties may assert the defense of statute of limitations, if so advised (Friedland v Hickox, 60 AD3d 426 [2009]). This Court, however, may consider the merits of the alternative ground raised in respondent's motion, which was to dismiss the petition for failure to state a cause of action (see Subolo Contr. Corp. v County of Westchester, 282 AD2d 737, 738 [2001]).

Mitchell H. Rubinstein

New Mexico Supreme Court Upholds $30,000 DFR Punitive Damage Award

The Supreme Court of New Mexico held that a United Steelworkers local union was liable for $30,000 in punitive damages for breaching its duty of fair representation. Akins v. United Steel Workers Local 187, No. 31,637, 6/22/10).

The state Supreme Court expressly rejected the union’s contention that punitive damages should be excluded in all state law breach of duty of fair representation (DFR) cases because such damages are not available against unions in federal DFR cases.  The court reasoned that while federal case law is a proper source of guidance when it does not conflict with New Mexico public policy, it is not controlling when a conflict exists. As the court explained:

 

As a preliminary matter, we reject the Union’s interpretation of our pronouncement

in Callahan. We stated that “arbitrary, fraudulent or bad faith conduct” as a standard of

liability in DFR actions “is consistent with” the standard of liability embraced by the U.S.

Supreme Court in Vaca. Callahan, 2006-NMSC-010, ¶ 11 (emphasis added). We did not

say, as the Union represents in its brief to this Court, that “the state duty . . . [is] to be

developed consistent with such precedent.” (Emphasis added.) The Union goes so far as to

refer to “the Callahan rule” that New Mexico courts “are obliged to develop the state [DFR]

consistent with United States Supreme Court precedent.” (Emphasis added.) Emphatically,

no such “rule” exists.

In developing a body of state common law, we may look to federal law for guidance

where it is persuasive and consistent with our state laws and policies. See State v. Long,

1996-NMCA-011, ¶ 7, 121 N.M. 333, 911 P.2d 227 (filed 1995). In Callahan, we relied on

Vaca to fashion the appropriate standard of liability for DFR claims because its rationale was

in line with New Mexico public policy. But just as we are free to embrace a federal

common-law principle that comports with New Mexico’s distinct needs and conditions, we

are also free to reject one that is inconsistent with or hostile to our circumstances.

{16} The Foust majority, in denying punitive damages in federal DFR claims, explained

that it was implementing a remedial scheme that would “best effectuate the purposes of the

Railway Labor Act . . . to facilitate collective bargaining and to achieve industrial peace.”

442 U.S. at 47. Specially concurring, Justice Blackmun pointed out that the Foust majority

based its holding, in part, on the premise that the remedial federal labor policy is

“inhospitable to punitive awards.” Id. at 55 (Blackmun, J., concurring). 

Mitchell H. Rubinstein

 

Public Sector Union Did Not Breach Its Duty of Fair Representation

Delsante v. CSEA, ____Misc. 3d____(Richmond Co. June 15, 2010), illustrates how the duty of fair representation in the public sector is similar, though not identical to the private sector. The two differences are the statute of limitations in the public sector (in New York) is 4 months as opposed to 6 months in the private sector. Additionally, the standard is a bit more favorable to unions in the public sector. As the court explained:

With respect to claims based upon the alleged breach of a duty of fair representation, the plaintiff must establish that the defendants acted "deliberately invidious, arbitrary and founded in bad faith" (Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]; Gordon v. City of New York, 167 AD2d 509, 509-510 [2d Dept., 1990]; Garvin v. NYS Pub. Emply Relations Bd., 168 AD2d 446, 446 [2d Dept., 1990]). Here, the defendants have established that they pursued the avenues available to assist the plaintiff in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement § 33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Defendants established that Mrs. Zarvos, the Labor Relations Specialist with CSEA, met with the plaintiff; spoke with Mr. Lescinski in an effort to negotiate reinstating the plaintiff and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. As is well established, "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation" (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 446-447 [2d Dept., 1990]; Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]).

In opposition, the plaintiff failed to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The plaintiff has failed to present any evidence that the defendants acted in any way deliberately, arbitrary or in bad faith in not pursuing the grievance further and in fact, the plaintiff's failed to present any evidence or dispute the fact that the plaintiff was on probationary status (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 447 [2d Dept., 1990][dismissing the petition as no evidence of bad faith, arbitrariness or discriminatory conduct was presented]).

Mitchell H. Rubinstein

2d Reaffirms Narrow Duty of Fair Representation Standard

Matter of Vaughn v. ALPA, ___F.3d___(2d Cir. May 14, 2010), an RLA case, is brought to your attention because it provides an excellent summary of applicable DFR standards. As the court explains:

Plaintiffs contend that the district court erred in dismissing their causes of action alleging that ALPA breached its duty of fair representation. A union "has a duty to represent fairly all employees subject to the collective bargaining agreement." Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d Cir. 1998) (citing Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 74 (1991)). Our review of such allegations is "highly deferential, recognizing the wide latitude that [unions] need for the effective performance of their bargaining responsibilities." O'Neill, 499 U.S. at 78. To prove that a union has breached its duty of fair representation, the challenging members must establish two elements. First, they must prove that the union's actions or inactions "are either 'arbitrary, discriminatory, or in bad faith.' " Id. at 67. Second, the challenging members must "demonstrate a causal connection between the union's wrongful conduct and their injuries." Spellacy, 156 F.3d at 126; see also Sim v. New York Mailers' Union No. 6, 166 F.3d 465, 472-73 (2d Cir. 1999).

A union's actions are "arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational." O'Neill, 499 U.S. at 67 (citation and quotation marks omitted). Moreover, "[t]actical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union's part does not give rise to a breach." Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989). A union's acts are discriminatory when "substantial evidence" indicates that it engaged in discrimination that was "intentional, severe, and unrelated to legitimate union objectives." Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301 (1971). Bad faith, which "encompasses fraud, dishonesty, and other intentionally misleading conduct," requires proof that the union acted with "an improper intent, purpose, or motive." Spellacy, 156 F.3d at 126 (citations omitted).

*              *                *

Moreover, there is no requirement that unions treat their members identically as long as their actions are related to legitimate union objectives. See Ryan v. New York Newspaper Printing Pressmen's Union No. 2, 590 F.2d 451, 457 (2d Cir. 1979) ("The Union was trying to make the best out of a bad situation, and it was almost inevitable that the Union's drawing of a line would hurt someone. Although it is unfortunate that in this case the ultimate harm fell on appellants, drawing the line elsewhere would, or reasonably could have been thought would, have caused harm to others."); Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) ("Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected."). Given that US Airways could not successfully reorganize and emerge from bankruptcy protection without decreasing its pension obligations, it was inevitable that the resulting negotiations would affect some pilots more harshly than others. Without additional evidence that the union intended to discriminate against plaintiffs, the mere fact that older pilots were disproportionally affected is not sufficient to show that ALPA acted in a discriminatory manner.

Mitchell H. Rubinstein

Employee organization’s duty of fair representation

Cox v Subway Surface Supervisors Association, et al., 2010 NY Slip Op 00076, decided on January 7, 2010, Appellate Division, First Department

This decision makes two important points with respect to a union’s duty of fair representation:

1. The individual must be in the negotiating unit represented by the union when the breach of the union’s duty of fair representation is alleged to have occurred;* and

2. In the event the individual has standing to claim a breach in his or her union’s duty of fair representation, the fact that the individual disagrees with the union’s action or negotiating position does not, without more, constitute proof of union’s failure of its duty of fair representation.

In Badman v CSEA, 91 AD2d 858, the appellate division said that "to sustain a cause of action for breach of the duty of fair representation there must be substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives."

PERB has also explained that a union does not have an absolute duty to prosecute any and every complaint by a unit member regardless of circumstances solely because the member pays dues or an agency fee to the union. A union violates its duty of fair representation only if its conduct is arbitrary, discriminatory or in bad faith [see, for example, 24 PERB 3040].

* To the same end, in Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees. However, in Baker v Irondequoit CSD, 70 NY2d 314, the Court of Appeals held that a union's duty to process a former employee's grievance, under some circumstances, survives the employee's separation.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Statute of limitations for filing the violation of its duty of fair representation charge commences on the day member complained to union

Levi Mcintyre And Middle Island Administrators Association, PERB U-27349

The Public Employment Relations Board affirmed the decision of its ALJ that dismissed as untimely, a duty of fair representation charge filed by Levi McIntyre.

The duty of fair representation charge alleged that the employee organization had violated the Act by agreeing to a new 12-step salary schedule and placing him at the top of the schedule.

In affirming the ALJ’s ruling, the Board found that the alleged violation of the Act accrued on or before the date McIntyre sent a letter to the president of the employee organization complaining of the salary disparities resulting from the new step schedule. McIntyre's charge was filed well beyond the four-month filing period following his letter.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Union Did Not Breach DFR By Settling Grievance

Thompson v. Transportation Union, ___F.3d___(8th Cir. Dec. 8, 2009), is an interesting case. Railway union did not breach its fair-representation duty to former members when, after discovering that grievance settlement fund exceeded outstanding claims, it scrapped plan to make pro rata payments from fund to qualified grievants and instead used fund surplus to cover administrative expenses and to make distributions to all active union members regardless of whether they had filed covered grievances.

Mitchell H. Rubinstein

ALPA Agrees To Largest Ever Duty of Fair Representation Settlement

United Airline Pilots Union to Pay $44 M To Settle Suit By Some Members is an interesting Chicago Crains article dated Jan. 21, 2010.  The article states that this settlement is the largest DFR settlement in history. As the article states:

The pilots union at United Airlines has agreed to pay $44 million to about 2,000 senior pilots who claimed they were shortchanged by a lump-sum financial deal the union cut to get the Chicago-based carrier out of Bankruptcy Court four years ago.

The settlement puts to rest a class-action lawsuit brought by several former leaders of the union, which potentially could have cost the Air Line Pilots Assn. nearly $200 million had it gone to trial.

Legal experts believe it to be the largest settlement ever in a case based on the “duty of fair representation,” an area of labor law where courts usually give union leaders a lot of leeway to define what’s fair.

“That’s a substantial settlement,” said Martin Malin, a Chicago Kent College of Law professor who has written a reference book for lawyers on the duty of fair representation. “It sounds like the union had a lot to be worried about.”

There is a recent court decision where the court denied ALPA summary judgment. My guess is that this court decision is what lead the parties to settle. Mansfield v. ALPA, 2009 WL 2386281 (N.D. Ill. Jan. 29, 2009), Download Denial.Motion.Summary.Judgment.7-29-09

Mitchell H. Rubinstein

Rare DFR Breach Found, But No Liability Because No Breach Of Contract

Nemsky v ConocoPhillips Co, ___F.3d___ (7th Cir. August 3, 2009), is an exceeding rare and critically important DFR case. After an employee was terminated, the union refused to arbitrate. Why? Because that same employee filed charges with the NLRB against the union. That was bad faith in breach of the unions duty of fair representation. However, under DelCostello as well as 7th Cir. law, to establish liability in hybrid DFR claims, both a breach of the duty of fair representation must be shown as well as breach of contract (the CBA). Here, there was no breach of the CBA, so the claim failed.

The decision is well written and full of helpful cites.

Mitchell H. Rubinstein

Case Raises Issues Whether Union Can Be Responsible For Lawyers Malpractice?

Matter of PBA v. NYC OCB, ___Misc. 3d___(N.Y. Co. Aug. 5, 2009), is an interesting public sector labor law case.
A discharged police officer claimed that she had be ill advised by lawyers retained by the PBA and brought an improper practice alleging a breach of the duty of fair representation. The union claimed that 1. a private lawyer could not be deemed an agent of the PBA and 2. that union cannot be held responsible for any failings by the attorney.

The court dismissed the union's appeal because it was not timely filed. However, though this decision is poorly written, it appears that the improper practice was dismissed on the merits so it is unclear why the union was appealing.

There is actually a significant body of law with respect to this important issue which was not cited by the court. Basically, the lawyer is the agent for the union and the only duty owed is that of fair representation. The client of the lawyer, in most cases, is the union-not the individual.

Mitchell H. Rubinstein 

Rare DFR Win For Plaintiffs

Addington v. U.S. Airline Pilots, ___F.Supp 2d___(D. Az. July 17, 2009), Download Findings_of_Fact_and_Conclusions_of_Law[1]is an important DFR case to be aware of. We had previously reported on an earlier decision denying a motion to dismiss. The case went to a jury trial and the plaintiffs won. The merits of the case concerned the integration of a seniority list after the merger of two airlines. The decision is lengthly (53 slip opinion pages) and full of helpful cites for researchers.

The court also ordered an interesting remedy-that an arbitration award over seniority lists must be respected; however the parties are also ordered to bargain about the seniority list. Readers will definately want to take note of this decision. My guess is that an appeal will be filed.

Mitchell H. Rubinstein

Hat Tip John Steiner

Union's Negligence About Failing To Fully Inform Grievant Does Not Establish Breach Of Duty of Fair Representation

Hansen v. Communication Workers of Am., No. 08-2051 , ___F.3d___(8th Cir. May 6, 2009), demonstrates how difficult it is to establish a breach of the union's duty of fair representation.Here, the union failed to disclose a 18 month limitation on back pay because the union chose to submit the dispute to advisory arbitration instead of full blown arbitration. Though the court recognized the union's actions were improper, at most they were negligent which does not establish a breach of the duty of fair representation. As the court explained:

It is the Union, not the individual employee, who decides how to proceed and
whether to submit a grievance to arbitration. See Vaca, 386 U.S. at 191, 192
(reasoning unions have the “contractual power honestly and in good faith to settle
grievances short of arbitration,” and “[i]f the individual employee could compel
arbitration of his grievance regardless of its merit, the settlement machinery provided
by the contract would be substantially undermined”). Further, “while a union’s failure
to notify a grievant may be negligent and in poor judgment, such an omission, without
anything more, does not violate a union’s duty of fair representation.” Demars v.
General Dynamics Corp., 779 F.2d 95, 98 (1st Cir. 1985) (citations omitted); see also
Buford, 160 F.3d at 1202 (“Mere negligence, poor judgment, or ineptitude by a union
is insufficient to establish a breach of the duty of fair representation.”).

Mitchell H. Rubinstein

6th Holds Union Does Not Breach Its DFR By Advising Grievant To Plead Mercy

Hayes v. UPS, Inc., ___F.3d___(6th Cir. May 19, 2009), is an interesting as well as important DFR case. The 6th held that a union's decision to plead a "mercy case" at a grievance panel on behalf of a terminated employee did not breach the duty of fair representation.

The employer terminated the employee for dishonesty.  The union steward privately advised the member that the supervisor might reinstate him if he admitted his mistake.  The court does a nice job of summarizing the applicable DFR standards and the decision is fairly well written.

The decision can also stand for the proposition that an apology does not always work. 

Mitchell H. Rubinstein

Union has no duty to act after member files a grievance on his or her own behalf

George Carr and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO and County Of Westchester. ALJ Blassman, PERB U-27258

The ALJ dismissed Carr's charge, which alleged that CSEA violated §§209-a.2(a) and (c) of the Act when it refused his request that it file a contractual grievance on his behalf challenging the County's failure to promote him and when it failed to respond to his request that it represent him in a grievance he filed on his own behalf.

The ALJ found that the record did not establish that CSEA had acted arbitrarily, discriminatorily or in bad faith, but only that Carr disagreed with CSEA's opinion that the matters he complained of did not violate the collectively negotiated agreement.

The ALJ further found that CSEA had no duty under the Act to contact Carr after he filed a grievance on his own behalf, since CSEA had already explained to Carr that it would not represent him in the matters he complained of in the grievance and Carr did not specifically contact CSEA to request that it represent him or contact him regarding the grievance.

Reprinted With Permission From New York Public Personnel Law

Mitchell H. Rubinstein

Breach of Contract (CBA) Action Allowed To Proceed Due To Union's Possible Breach Of Its Duty Of Fair Representation

Spano v. Kings Park Cent. School Dist., ___A.D.3d___ (2nd Dep't. April 7, 2009), illustrates an important principle of both private and public sector labor law.  Normally, an action cannot be maintained for breach of a collective bargaining agreement. However, the law is otherwise, if the union breaches its duty of fair representation. As the court explains:

Contrary to Kings Park's contention, it was not entitled to summary judgment on the grounds that the plaintiff failed to exhaust his administrative remedies and lacked standing to enforce the terms of the CBA. Generally, an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies (see Matter of Plummer v Klepak, 48 NY2d 486, 489-490). In this case, the CBA set forth a four-step grievance procedure, and the plaintiff did not complete any of the steps in that procedure. Moreover, an individual union member normally lacks standing to enforce the terms of a collective bargaining agreement between the union and the employer (see Hickey v Hempstead Union Free School Dist., 36 AD3d at 761; Berlyn v Board of Educ. of E. Meadow Union Free School Dist., 80 AD2d 572, affd 55 NY2d 912). Nonetheless, a union employee may maintain a direct action against an employer, despite a failure to exhaust available administrative remedies, where the employee can prove that "the union as bargaining agent breached its duty of fair representation in the handling of the employee's grievance," including situations where "the union refuses to press . . . the individual's claim" (Jackson v Regional Tr. Serv., 54 AD2d 305; see Vaca v Sipes, 386 US 171, 186; Matter of Bd. of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508; Hickey v Hempstead Union Free School Dist., 36 AD3d at 761). Here, since there exists a question of fact as to whether the CSEA's conduct constituted a breach of its duty of fair representation, there exists a concomitant question of fact as to whether that conduct prevented the plaintiff from exhausting the remedies provided in the CBA (see Vaca v Sipes, 386 US at 185), thus affording him standing to sue Kings Park for a breach of the CBA and overcoming Kings Park's defense of failure to exhaust administrative remedies. Although Kings Park contends that the plaintiff could have processed his grievance by himself without assistance from CSEA (see Matter of Lewis v Klepak, 65 AD2d 637), we perceive a triable issue of fact as to whether such steps would have been futile, in light of Sobotkin's statements to the plaintiff indicating that CSEA would not be supporting him at any stage of the grievance process. 

Mitchell H. Rubinstein

Rare Cause of Action For Breach of Duty Of Fair Representation Stated

Addington v. U.S. Airlines, 588 F. Supp.2d 1051 (D. Az. 2008)Download 588_F_SUPP_2D_1051_2-11-09_1331.txt  is a rare plaintiff DFR win-or at least the successful defeat of a motion to dismiss. This is an RLA case where pilots of a smaller airline that merged with a larger airline stated a claim that after the merger, the union breached its duty of fair representation to the minority. The court reasoned in part:

  USAPA vehemently argues that it had every right to renounce its express obligation to the ALPA Merger Policy and the arbitrated seniority award, to which it is bound by the 2004 CBA and the Transition Agreement. It says it may recant a prior bargaining position and adopt a seniority policy based upon date of hire. Seniority rights “are creations of the collective bargaining agreement, and so may be revised or abrogated by later negotiated changes in this agreement.” Hass v. Darigold Dairy Prods. Co., 751 F.2d 1096, 1099 (9th Cir.1985). As a general proposition, the seniority scheme under the Nicolau Award is not the only permissible way to resolve post-merger seniority issues *1060 within unions. For instance, there is nothing per se unacceptable about a seniority agreement based on the date of hire. Laturner, 501 F.2d at 599; Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1533 (7th Cir.1992). USAPA refers repeatedly to these principles at their highest level of generality. The problem is, though the benefit of the Nicolau Award is surely what motivates the West Pilots, their legal objection to USAPA's date-of-hire seniority policy is not directly substantive, but rather procedural. The alleged breach of the duty stems from the bad faith manner of USAPA's determined attempts to evade the Award. Irrespective of whether seniority rights “vest” in a proprietary sense, a union may not arbitrarily abridge those rights after a merger solely for the sake of political expediency. Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 800 (7th Cir.1976); see also Rakestraw, 981 F.2d at 1531.

The Ninth Circuit has not dealt directly with this fact situation, but the union's position flies against the headwind of cases from other circuits. The D.C. Circuit has held that a union breaches its duty of fair representation when it “arbitrarily adopt[s] and announce[s] a bargaining policy on seniority merger motivated only by a desire to win the votes of a majority of the employees.” Truck Drivers & Helpers, Local Union 568 v. NLRB, 379 F.2d 137, 145 (D.C.Cir.1967). This is so because to adopt such a policy under the circumstances “would ... constitute a default by [the union] in its obligation to represent fairly all the employees in the unit for which it becomes the exclusive bargaining representative.” Id. Along the same lines, a union may not delegate its decision-making function to a referendum of employees “with the understanding that their actions will be motivated solely by their own personal considerations” because such a referendum violates the union's duty to consider the views of all those it represents. Branch 6000, Nat'l Ass'n of Letter Carriers v. NLRB, 595 F.2d 808, 812 (D.C.Cir.1979). USAPA was formed and has taken action as a creature of majority will. Though the will of the majority is not inherently discriminatory, see id., in this case the East Pilots are alleged to have targeted the Nicolau Award in a way that gives scant consideration to the West Pilots' interest. By casting off the brokered arrangement after its predecessor agreed to the process by which it was reached, USAPA “has renounced any good faith effort to reconcile the interests” of both pilot groups. Truck Drivers, 379 F.2d at 142-43.

This decision is lengthly and well worth a read.

Mitchell H. Rubinstein