New York Law Review

Tag: duty of fair representation

  • Matter of Dourdounas v. City of New York, 2025 NY Slip Op 01671: Exhaustion of CBA Grievance Procedures and Article 78 Proceedings

    2025 NY Slip Op 01671

    When a claim arises exclusively from a collective bargaining agreement (CBA) with a mandatory grievance process, an employee must pursue the grievance procedure, and may not bring an Article 78 proceeding to challenge the employer’s actions, unless a breach of the duty of fair representation by the union is alleged.

    Summary

    In Matter of Dourdounas v. City of New York, the New York Court of Appeals addressed the proper method for a unionized public employee to seek judicial review of a claim arising under a collective bargaining agreement. The court held that because the employee’s claim concerned a breach of contract under the CBA, and the CBA contained a mandatory grievance process, an Article 78 proceeding was improper. The employee could not bypass the CBA’s dispute resolution mechanism and bring the action directly, especially since the employee did not allege that the union breached its duty of fair representation. The court affirmed the dismissal of the Article 78 petition, clarifying the distinction between statutory claims, which can proceed under Article 78, and contract claims governed by a CBA, which require a different procedure and cause of action.

    Facts

    George Dourdounas, a high school math teacher, was assigned to the Absent Teacher Reserve (ATR) pool as per the CBA between the NYC Department of Education (DOE) and the United Federation of Teachers (UFT). The CBA allowed for a severance package for ATR teachers who retired by a certain date. Dourdounas was temporarily assigned to Bronx International High School. He requested the severance incentive, but was denied because he was considered permanently assigned to Bronx International. Dourdounas initiated a grievance process through the CBA. The grievance was denied at the school and Chancellor levels, and the UFT denied arbitration. Dourdounas then brought an Article 78 proceeding against the City.

    Procedural History

    Dourdounas initiated the grievance process under the CBA, which was denied at each step including a denial of arbitration by the UFT. Dourdounas then commenced an Article 78 proceeding in Supreme Court, which was dismissed as time-barred. The Appellate Division affirmed, also holding the claim was time-barred. The Court of Appeals reviewed the case.

    Issue(s)

    1. Whether an Article 78 proceeding is the proper mechanism for judicial review of a claim arising exclusively under a collective bargaining agreement, which has a mandatory grievance process, when the employee has exhausted the grievance procedure.
    2. Whether the statute of limitations for a claim arising under a collective bargaining agreement, and subject to a mandatory grievance process, begins to run when the employee is informed of the action, or when the grievance process is exhausted.

    Holding

    1. No, because the claim arose solely under the CBA, and the CBA included a mandatory grievance process, an Article 78 proceeding was not proper.
    2. The statute of limitations begins to run when the employee has exhausted the mandatory grievance process and is aware of the final decision.

    Court’s Reasoning

    The Court of Appeals relied heavily on Ambach v. Board of Education, which established that when a claim arises under a CBA with a mandatory grievance process, an employee may not sue the employer directly for breach of that agreement but must proceed through the union in accordance with the contract. Only if 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. The court emphasized that claims arising exclusively from an alleged breach of a term in a CBA must be brought through a civil action for breach of contract. The court distinguished this case from claims based on statutory or constitutional violations, which are properly brought in an Article 78 proceeding.

    The court explained that disrupting the contract’s settlement procedures threatens the union’s authority as representative and weakens the individual employee’s protection. Therefore, since Dourdounas’s claim was based solely on a contract right, and he did not allege a breach of the duty of fair representation by the UFT, the Article 78 proceeding was improper, and his claim should be dismissed.

    The court clarified that even if the claim could have been properly brought under Article 78, the Appellate Division’s application of the exhaustion rules would have been incorrect because the statute of limitations would not have begun to run until the grievance process was exhausted.

    Practical Implications

    This decision highlights several key considerations for attorneys dealing with public sector employees in New York. First, it underscores the importance of identifying the source of the legal claim. If the claim is solely based on the CBA, the employee must exhaust the CBA’s grievance process before any judicial review can be sought. Second, it clarifies that an Article 78 proceeding is not the proper mechanism for a breach of contract claim arising from a CBA with a mandatory grievance process; a breach of contract action is required. Third, to bring a claim against the employer, the employee must allege both breach of contract by the employer and breach of the duty of fair representation by the union. Fourth, the statute of limitations for a claim arising under a CBA with a mandatory grievance process starts to run once the grievance process is exhausted. This case should inform how attorneys analyze cases involving public employees and their rights under a collective bargaining agreement, as the decision makes clear the path that must be taken to pursue a legal action. Finally, it underscores that the failure to allege a breach of the duty of fair representation will result in the dismissal of the claim.

    This case, especially concerning the analysis of when the statute of limitations begins to run, distinguishes claims involving mandatory versus optional grievance processes, and its emphasis on the Ambach rule, are crucial for attorneys practicing in employment law in New York.

    The decision reinforces the importance of adhering to established procedures and the limits on individual employees’ rights when collective bargaining agreements are in place. The ruling is consistent with prior cases concerning the need for exhaustion of remedies and the scope of Article 78 proceedings.

  • Palladino v. CNY Centro, Inc., 23 N.Y.3d 140 (2014): Continued Adherence to the Martin v. Curran Rule for Suits Against Unions

    23 N.Y.3d 140 (2014)

    New York adheres to the rule established in Martin v. Curran, requiring a plaintiff suing an unincorporated association (like a union) to demonstrate that every single member of the association authorized or ratified the conduct giving rise to the cause of action.

    Summary

    Eugene Palladino, a bus driver, sued his union, Amalgamated Transit Union, Local 580, alleging a breach of the duty of fair representation after he was terminated. The Appellate Division dismissed the complaint, citing Martin v. Curran, because Palladino failed to allege that every union member ratified the union’s conduct. The Court of Appeals affirmed, declining to overrule Martin, emphasizing the principle of stare decisis and the Legislature’s role in modifying existing statutory interpretations. The court acknowledged criticisms of the Martin rule, but ultimately deferred to the legislature to determine whether to change the requirements for suing unincorporated associations.

    Facts

    Eugene Palladino, a bus driver for CNY Centro, Inc. (Centro), was a member of Amalgamated Transit Union, Local 580 (the Union). Centro terminated Palladino for incidents in 2007 and 2008, including allegedly misrepresenting his whereabouts and actions. The Union initially filed grievances on Palladino’s behalf, but later withdrew them based on Palladino’s lack of cooperation. Palladino did not accept a settlement agreement negotiated by the Union regarding the second incident, which ultimately led to his termination. Palladino claimed that his termination occurred just before he would have become eligible for early retirement and lifetime health insurance benefits.

    Procedural History

    Palladino filed two separate actions against Centro and the Union, which were consolidated. Supreme Court denied the Union’s motion for summary judgment on the breach of duty of fair representation claim. The Appellate Division reversed, finding Palladino’s claim “fatally defective” under Martin v. Curran. Palladino appealed to the New York Court of Appeals.

    Issue(s)

    Whether the rule in Martin v. Curran, requiring proof that every member of an unincorporated association authorized or ratified the conduct giving rise to the cause of action, applies to a union member’s suit against the union for breach of the duty of fair representation, and whether the Court of Appeals should overrule Martin v. Curran.

    Holding

    No, because the rule in Martin v. Curran applies, and the Court declines to overrule its precedent, emphasizing the principles of stare decisis and the role of the legislature in modifying statutory interpretations.

    Court’s Reasoning

    The Court reaffirmed the Martin v. Curran rule, which treats unincorporated associations, including labor unions, as aggregates of individual members. Under this rule, a plaintiff must prove that each member of the union authorized or ratified the allegedly wrongful conduct to hold the union liable. The Court acknowledged criticisms of the Martin rule, noting that it has been described as an “onerous and almost insurmountable burden” for plaintiffs suing unions. The Court distinguished the present case from Madden v. Atkins, where an exception to the Martin rule was created for wrongful expulsion cases involving a vote by the membership.

    The Court emphasized the importance of stare decisis, particularly in cases involving statutory interpretation. General Associations Law § 13, which governs actions against unincorporated associations, was interpreted in Martin to limit suits against association officers to cases where the individual liability of every single member can be alleged and proven. The Court noted that since the Martin decision, the legislature has not acted to correct or clarify that interpretation. The Court stated that while it was willing to overrule precedent involving statutory interpretation, it did not believe that it was best course of action here. It argued that the legislature is best suited to address the policy concerns and to limit the applicability of any new rule removing or amending the requirements for maintaining an action against unincorporated associations. The Court stated that “the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven.”

    The court also observed that public employees in New York have an alternative remedy: they can bring an improper practice charge before the New York State Public Employment Relations Board pursuant to the Taylor Law (Civil Service Law § 200 et seq.).

  • Diaz v. Civil Service Employees Association, Inc., 75 N.Y.2d 798 (1990): Scope of PERB Review Limited to Original Charge

    Diaz v. Civil Service Employees Association, Inc., 75 N.Y.2d 798 (1990)

    The Public Employment Relations Board (PERB) review of an Administrative Law Judge’s (ALJ) decision is limited to matters included in the original charge or developed at the formal hearing, and any exception to the ALJ’s ruling not specifically raised is waived.

    Summary

    This case addresses the scope of review by the Public Employment Relations Board (PERB) of an Administrative Law Judge’s (ALJ) decision regarding an improper practice charge. Luis Diaz, a terminated employee, filed a charge against his union, CSEA. The ALJ dismissed the charges, but PERB reversed, finding CSEA grossly negligent in training and supporting its representatives, an issue not raised in the original charge. The Court of Appeals held that PERB’s review is limited to matters in the original charge or developed at the hearing, and issues not specifically raised are waived. Therefore, PERB’s decision based on inadequate training and support was improper.

    Facts

    Luis Diaz, an employee, was terminated after his union, CSEA, failed to timely file a grievance for arbitration on his behalf. The failure was due to mistakes and omissions by CSEA representatives. Diaz then filed an improper practice charge against CSEA with PERB.

    Procedural History

    The Administrative Law Judge (ALJ) framed the charges against CSEA, and after a hearing, dismissed them. PERB confirmed the dismissal but went further, finding CSEA grossly negligent in failing to adequately train or support its representatives, which constituted a breach of its duty of fair representation. This finding was based on issues not raised in the original charge. The Court of Appeals reviewed PERB’s decision.

    Issue(s)

    Whether PERB’s review of an ALJ’s decision is limited to matters included in the original charge or developed at the formal hearing.

    Holding

    Yes, because PERB’s review is limited to matters included in the original charge or developed at the formal hearing, and any exception to the ALJ’s ruling not specifically raised is waived.

    Court’s Reasoning

    The Court of Appeals reasoned that PERB’s power of review is circumscribed by the allegations made in the initial charge and the evidence presented during the formal hearing process. The court emphasized the importance of adhering to procedural rules designed to ensure fairness and adequate notice to the parties involved. The court stated that, “PERB’s review of the ALJ’s decision is limited to matters included in the original charge or developed at the formal hearing. Any exception to the ALJ’s ruling not specifically raised is waived”. The court cited Matter of Margolin v Newman, 130 AD2d 312, appeal dismissed 71 NY2d 844, and 4 NYCRR 204.10 [b] [4] in support of this principle. Because Diaz’s original charge did not include allegations of inadequate training or support, and he did not raise these issues in his exceptions to the ALJ’s order, PERB acted improperly in basing its decision on these grounds. This decision reinforces the importance of clearly articulating the basis of a complaint from the outset and preserving issues for appeal by specifically raising them in exceptions to an initial ruling. The court’s ruling ensures that administrative bodies like PERB remain within the bounds of the issues properly presented to them, safeguarding the rights of all parties involved.

  • Baker v. Board of Education, 70 N.Y.2d 314 (1987): Statute of Limitations for Teacher’s Fair Representation Claim

    Baker v. Board of Education, 70 N.Y.2d 314 (1987)

    In New York, the six-year statute of limitations applies to actions by public sector employees against their unions for breach of the duty of fair representation, and a teacher’s resignation does not automatically divest them of a cause of action for such a breach if the resignation is effectively a constructive discharge.

    Summary

    A teacher, Baker, sued her union for failing to fairly represent her grievance after she resigned, claiming constructive discharge. The New York Court of Appeals addressed the statute of limitations for such claims and whether resignation negated the union’s duty. The Court held that the six-year statute of limitations applied, rejecting shorter federal or state alternatives. It also ruled that a constructive discharge claim allowed the teacher to sue the union for breaches occurring before her resignation, as if she had been wrongfully terminated. The Court reversed the Appellate Division’s dismissal, allowing the case to proceed.

    Facts

    Baker, a math teacher, requested an extension of her education leave to complete a master’s degree. Her request was denied. She then requested relief from certain administrative duties to continue her studies part-time, but this was also largely denied. She resigned, later learning that male teachers in similar situations had been granted leaves and relief. The union refused to represent her grievance, arguing that her resignation terminated their duty to represent her.

    Procedural History

    Baker sued the Board of Education and the union, alleging gender-based inequitable treatment and constructive discharge by the former, and breach of duty of fair representation by the latter. The union moved to dismiss the claim against it, arguing the claim was untimely, that they had no duty to represent her post-resignation, and failure to exhaust remedies. Special Term denied the motion, but the Appellate Division reversed, finding the federal six-month statute of limitations applicable and holding the union’s duty ceased upon resignation. The Court of Appeals reversed the Appellate Division decision.

    Issue(s)

    1. Whether the applicable statute of limitations for a public sector employee’s claim against their union for breach of the duty of fair representation is the federal six-month period, a 90-day period for vacating arbitration awards, a four-month period for PERB unfair labor practice charges, or the state’s six-year default statute of limitations.

    2. Whether a union has a duty to represent a teacher who has resigned when the teacher claims the resignation amounted to a constructive discharge resulting from a breach of the collective bargaining agreement during employment.

    Holding

    1. No, because neither the Taylor Law nor the CPLR prescribes a specific statute of limitations, and until the Legislature acts, the six-year statute of limitations (CPLR 213[1]) applies.

    2. Yes, because an employer cannot extinguish an employee’s rights under a collective bargaining agreement by terminating employment, and a claim of constructive discharge is premised on a breach of the agreement occurring during employment.

    Court’s Reasoning

    Regarding the statute of limitations, the Court reasoned that while the duty of fair representation originated in federal law, New York’s Taylor Law governs public sector employment, explicitly distinguishing it from private sector labor law. The Court rejected applying the federal six-month statute from DelCostello v. Teamsters, as well as the 90-day arbitration award challenge period and the four-month PERB rule, because they were not analogous. The Court determined that because no specific statute of limitations governed the action, the catch-all six-year period of CPLR 213(1) applied. The court acknowledged the policy concerns of a longer limitations period in labor disputes, urging the Legislature to address the issue.

    Regarding the duty of fair representation, the Court distinguished Smith v. Sipe, noting that the case did not address the status of a former employee. The Court stated that an employer cannot extinguish an employee’s rights under a collective bargaining agreement simply by terminating employment. The court emphasized that Baker’s claim of constructive discharge meant she was, in effect, claiming a wrongful termination stemming from a breach during her employment. Therefore, her post-resignation status did not automatically absolve the union of its duty. The Court viewed Baker’s situation as analogous to an employee claiming wrongful discharge and therefore deserving of representation.

    The Court also found that Baker had adequately attempted to exhaust her contractual remedies, thus negating the Union’s argument for dismissal on those grounds.

  • Civil Service Bar Ass’n v. City of New York, 64 N.Y.2d 188 (1984): Union’s Duty of Fair Representation in Settlement Agreements

    Civil Service Bar Ass’n v. City of New York, 64 N.Y.2d 188 (1984)

    A union does not violate its duty of fair representation when it settles an appeal from an arbitration award by agreeing to modify benefits for some employees in exchange for benefits to others, absent arbitrary, discriminatory, or bad-faith conduct.

    Summary

    This case addresses whether a union breached its duty of fair representation by settling an appeal of an arbitration award. The union negotiated a settlement with the City of New York that altered the benefits awarded to some employees in exchange for broader benefits for the entire union membership. A group of employees who would have received greater benefits under the original arbitration award challenged the settlement. The New York Court of Appeals held that the union did not violate its duty of fair representation because the settlement was not arbitrary, discriminatory, or made in bad faith, acknowledging the union’s need to balance competing interests within its membership and the public policy favoring settlement of litigation.

    Facts

    In March 1975, the City of New York appointed an attorney at a salary exceeding the stated minimum for the position. The Civil Service Bar Association (Union) filed a grievance, claiming this triggered a requirement to raise minimum salaries for all grades. The grievance was denied and went to arbitration. The arbitrator ruled for the Union, ordering the City to increase all minimum salaries and award back pay. The City appealed the confirmation of the arbitration award (the “Helman judgment”). During the appeal, the City and Union negotiated a settlement resulting in a lump-sum payment of $2,000 to employees, an increase in minimum and maximum salaries by $2,500, and these increased salaries would form the basis for upcoming collective bargaining.

    Procedural History

    The initial arbitration award was confirmed in the Helman judgment. The City appealed. While the appeal was pending, a settlement was reached and embodied in a “Final Supplemental Award,” which the Supreme Court confirmed in the Korn judgment, vacating the Helman judgment. A group of employees sought to intervene and set aside the Korn judgment, arguing the settlement breached the Union’s duty of fair representation. The Supreme Court initially denied intervention, but the Appellate Division reversed, remanding for a hearing. On remand, the Supreme Court vacated the Supplemental Award and reinstated the Helman judgment. The Appellate Division reversed again, denying the motion to vacate the Korn judgment, finding no breach of the duty of fair representation. The New York Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    Whether the Union violated its duty of fair representation by settling the appeal of the arbitration award in a manner that diminished benefits for some employees in exchange for benefits to other employees not affected by the original award.

    Holding

    No, because the Union’s conduct in settling the appeal was not arbitrary, discriminatory, or in bad faith; thus it did not violate its duty of fair representation.

    Court’s Reasoning

    The Court of Appeals relied on federal precedent, particularly Vaca v. Sipes, to define the duty of fair representation as requiring unions to act fairly towards all employees they represent. A breach of this duty occurs only when a union’s conduct is arbitrary, discriminatory, or in bad faith. The court emphasized that ascertaining whether the duty was violated is a factual determination. Here, the Appellate Division found no reason to believe the Union acted dishonestly or in bad faith. The court noted that both the City and the Union were unsure of their chances on appeal, and both sides were dissatisfied with aspects of the original award. The court reasoned that “It was not unfair to use the original award as a lever, or a club, to obtain for all the members of the Union a more equal benefit.” The court acknowledged the conflicting interests within the union membership and stated that unions must have leeway to resolve these conflicts. Quoting Humphrey v. Moore, the court emphasized that “Conflict between employees represented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining and grievance processes.” The court also highlighted the strong policy favoring the settlement of litigation. The settlement avoided salary schedule compression that would diminish increases based on seniority. The court concluded that the Union engaged in a good-faith balancing of divergent interests and that the settlement was not arbitrary, discriminatory, or in bad faith.

  • Phalen v. Theatrical Protective Union No. 1, 22 N.Y.2d 34 (1968): Union’s Duty to Fairly Consider Membership Applications

    Phalen v. Theatrical Protective Union No. 1, 22 N.Y.2d 34 (1968)

    A labor union, acting as the exclusive bargaining agent for a group of employees, has a duty to consider membership applications based on fair standards, fairly applied, and may be compelled by a court to admit members if it acts arbitrarily or in bad faith.

    Summary

    Non-union stagehands sued their union, the exclusive bargaining agent for their profession, seeking a court order compelling the union to admit them as members. They alleged discriminatory practices hindered their employment. The New York Court of Appeals held that while mandamus was not the appropriate remedy, the plaintiffs stated a valid claim for equitable relief. The court determined that state courts had jurisdiction, despite potential federal preemption, to address the union’s duty of fair representation. The case was remanded to allow the plaintiffs to pursue an action for injunctive relief.

    Facts

    Petitioners were employed as stagehands in theaters within the respondent union’s jurisdiction but were not union members. They claimed their non-membership caused difficulty in obtaining employment and led to dismissals at the union’s behest, replaced by union members. Two petitioners alleged reduced pension eligibility due to lost earnings from the union’s actions. They also alleged they were required to pay 4% of their earnings to a union fund benefitting only union members. They asserted they had repeatedly applied for union membership, but were denied due to a requirement for sponsorship by existing members, typically favoring relatives of existing members.

    Procedural History

    The petitioners filed an Article 78 proceeding in the Supreme Court, Bronx County, seeking a mandamus order to compel the union to admit them as members. The union cross-moved to dismiss the petition. The Supreme Court denied the union’s motion and granted the petitioners’ motion, ordering the union to admit them unless an answer was filed. The union appealed, and the Appellate Division reversed, dismissing the petition, finding no statutory duty violation and suggesting federal preemption. The petitioners appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether state courts have jurisdiction over a claim that a labor union breached its duty of fair representation, despite potential federal preemption under the National Labor Relations Act?

    2. Whether mandamus is the appropriate remedy to compel a labor union to admit non-members to its membership?

    3. Whether a labor union can be compelled to accept non-members into its membership if the non-members can prove discriminatory denial of membership?

    Holding

    1. Yes, because the U.S. Supreme Court in Vaca v. Sipes clarified that state courts retain jurisdiction over fair representation claims, even if the conduct arguably constitutes an unfair labor practice under federal law.

    2. No, because mandamus is not the appropriate remedy as an action in equity seeking a mandatory injunction can provide the same relief, and unincorporated labor unions are not the type of bodies against whom mandamus traditionally lies.

    3. Yes, because a labor union may be compelled to accept non-members into its membership if the non-members can prove discriminatory denial of membership and if that is the only way to assure nondiscriminatory representation.

    Court’s Reasoning

    The Court of Appeals reasoned that recent Supreme Court decisions, particularly Vaca v. Sipes, limited the scope of federal preemption, allowing state courts to address breaches of a union’s duty to fairly represent all members of a bargaining unit. The court emphasized that unions have a federal statutory obligation to serve the interests of all members without hostility or discrimination. While acknowledging the unprecedented nature of compelling union membership, the court stated it would be prepared to do so if it was the only means to ensure non-discriminatory representation, but found that the petitioners had not yet made such a showing.

    The court found mandamus inappropriate because an ordinary action in equity for a mandatory injunction could achieve the same result. The court noted the gravamen of the petition was economic injury resulting from discriminatory acts by the union, which could be remedied by an injunction and incidental damages. Compelling membership was viewed as a drastic remedy, especially in light of New York’s policy favoring full freedom of association for labor organizations. The court acknowledged that persistent disregard for non-members’ rights might warrant compelling membership, but that no such showing was made here.

    Chief Judge Fuld, in concurrence, argued that unions have a quasi-public character and should not arbitrarily exclude qualified individuals from membership. He emphasized that union membership critically affects a person’s ability to earn a living. Fuld also noted that the NLRB lacks the power to order a union to admit a worker to membership. Quoting Machinists v. Gonzales, he asserted that precluding state court jurisdiction “would in many cases leave an unjustly ousted member without remedy for the restoration of his important union rights.” Fuld would have reinstated the Special Term’s order denying the motion to dismiss the petition.