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Tuesday, September 13, 2011

Duty of fair representation


Duty of fair representation
LeBlanc v Security Services Unit, Council 82, Appellate Division, Third Department, 278 A.D.2d 732

The LeBlanc decision illustrates some of the technical hurdles confronting members of an employee organization attempting to sue their collective bargaining agent on the grounds that it violated its duty of fair representation.

The ruling also demonstrates the proposition that a collective bargaining agreement belongs to the union, rather than to the employees covered by the agreement.

State Environmental Conservation Officer Hilary J. LeBlanc, together with other current and former officers, sued Council 82 alleging that it breached its duty of fair representation when it refused to file a grievance.

LeBlanc claimed that the State failed to pay conservation officers overtime compensation under the collective bargaining agreement in place at that time and that Council 82 should have filed a grievance to vindicate their rights under the collective bargaining agreement.

As it turned out, the complaint was untimely. The Appellate Division affirmed a Supreme Court ruling dismissing LeBlanc's petition on the grounds that the statute of limitations for bringing the action had expired.

The court pointed out that a claim against an employee organization alleging it breached its duty of fair representation must be commenced within four months of the date the employee knew or should have known that the breach occurred or when the employee suffered actual harm, whichever is later.

Although LeBlanc conceded that the officers were aware of the alleged breach in 1987, they attempted to persuade the court that they did not experience actual harm until July 2, 1999 when they:

1. Were paid overtime compensation in accordance with the Fair Labor Standards Act rather than “contractual overtime compensation;” and

2. Became obligated to pay counsel fees, costs and disbursements incurred in litigating their claim of entitlement to such overtime compensation [Mulverhill v State of New York, 257 AD2d 735].

The Appellate Division rejected LeBlanc's theory, holding that Council 82, assuming that it did in fact breached its duty of fair representation by refusing to file the grievance, did so in July 1987, more than 12 years prior to LeBlanc filing this complaint.

The Appellate Division also dismissed LeBlanc's claim of “breach of contract.” The court said that LeBlanc's breach of contract claims are based on the collective bargaining agreement between the State and Council 82.

Pointing out that the conservation officers are not parties to the contract, they lack what is called privity and thus they may not assert contractual claims directly against the State based on the collective bargaining agreement. In other words, only the State or Council 82 could sue the other for any alleged breach of the contract.*

Finally the Appellate Division ruled that LeBlanc's reliance on a claim that the officers are third-party beneficiaries of the contract between the State and Council 82 “is equally misplaced,” citing Lundgren v Kaufman Astoria Studios, 261 AD2d 513.

Although courts have ruled that members of a union may be “third party beneficiaries” of a contract between the employer and the union [Helt v Britten-Fenton Co., 180 Misc 1077], the Court of Appeals has declared that the benefit “must be one that is not merely incidental, but must be immediate in such a sense and degree as to indicate the assumption of a duty to make reparation if the benefit is lost” [Associated Flour Haulers and Warehousemen v Hoffman, 282 NY 173].

While the LeBlanc case concerned an individual suing his or her union for alleged breach of contract, sometimes an employee may attempt to sue his or her public employer alleging a breach of the collective bargaining agreement.

As a general proposition, when a public employer and a union enter into a collective bargaining agreement that sets out a contract grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement. He or she must attempt to cure the alleged breach through the employee organization.

This proposition was set in by the Appellate Division, Third Department, in Sinacore v State of New York, decided November 16, 2000. In this situation, the court said that:

Unless the contract provides otherwise, only when 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 Appellate Division ruled that because Sinacore “failed to allege that the union breached its duty of fair representation,” he cannot sue the State for any alleged procedural defects in his 1995 disciplinary hearing.

* Contract privity is defined as the relationship or connection between the contracting parties. Privity is essential to maintaining any legal action between a plaintiff and a defendant with respect to the matter being sued on.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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