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May 10, 2011

Employee organization's duty of fair representation

Employee organization's duty of fair representation
Ayazi v United Federation of Teachers, 32 PERB 3069

From time to time, a member of a negotiating unit will file an unfair labor practice claim with PERB contending that his or her union has breached its duty of fair representation. The Ayazi decision by PERB sets out the standards used by PERB in resolving such claims.

Maryam J. Ayazi, a former teacher of English as a Second Language employed by the New York City School District’s Grover Cleveland High School, filed charges with PERB alleging that her union, the United Federation of Teachers [UFT]:

1. Failed to properly represent her by declining to appeal an adverse “probation discontinuance appeal hearing” that sustained her termination for unsatisfactory service effective June 1997.

2. Refused to file a grievance for back pay based on the school district’s refused to hire her as a full time teacher following her termination as a probationer.

UFT responded to the charges indicating that:

1. It declined to challenge Ayazi’s termination for unsatisfactory performance during her probationary period because “her appeal raised no legal issues;” and

2. It did not file a grievance seeking back pay because “it did not believe that the grievance would be successful.”

Citing CSEA v PERB, 132 AD2d 430, PERB said that “[i]n order to establish a claim for breach of the duty of fair representation against a union, there must be a showing that the activity, or lack thereof, which formed the basis of the charge against the union was deliberately invidious, arbitrary or founded in bad faith.”


In contrast, PERB said that there is no violation of Section 209-a.2(c) if the union’s action, or inaction, was caused by “an honest mistake resulting from misunderstanding” or its lack of familiarity with matters of procedure.

PERB sustained its administrative law judge’s decision dismissing Ayazi’s complaint, commenting that the fact that Ayazi disagreed with UFT’s position and believed that her probationary termination should have been further appealed “is not sufficient to establish a violation of the Act.”

Another element in this action was Ayazi’s allegation that UFT said that it would no longer represent her because she had filed the unfair labor practice charge.

UFT conceded that it had told Ayazi that it would not communicate with her about matters that were the subject of this improper practice charge. Ayazi, on the other had, admitted that “UFT has continued to communicate with her about matters unrelated to those that are subject to this proceeding.”

PERB said that under the circumstances UFT’s action, without more, did not rise to a level of a violation of the Act.



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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com