Some exceptions to the Doctrine of the Exhaustion of Administrative Remedies

Some exceptions to the Doctrine of the Exhaustion of Administrative Remedies

McLaughlin v Hankin, 2015 NY Slip Op 07272, Appellate Division, Second Department

In a CPLR Article 78 proceeding challenging the determination of the president of Westchester Community College to terminate petitioner Catherine McLaughlin’s employment with the college, the college raised an affirmative defense contending that McLaughlin failed to exhaust her administrative remedies under the relevant collective bargaining agreement [CBA] between the college and the Westchester Community College Federation of Teachers, American Federation of Teachers Local 2431 [Local 2431].

Supreme Court granted McLaughlin’s petition, finding that the McLaughlin was prevented from availing herself of the remedial provisions of the CBA by Local 2431’s decision not to press her claim.*

The Appellate Division reversed the lower court’s ruling, explaining that, as a general rule, an employee covered by a CBA that provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies except where the individual can prove that the union breached its duty of fair representation in the handling of the employee's grievance. Further, said the court, citing Civil Service Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, a union’s breach of its duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or its decision was made in bad faith.**

In her complaint McLaughlin did not allege that Local 2431’s conduct was arbitrary, discriminatory, or that its decision was made in bad faith, and, said the court, the record does not support such a conclusion.  

Accordingly, the Appellate Division ruled that as McLaughlin failed to establish that an exception to the exhaustion doctrine was applicable, Supreme Court should have denied her petition and dismissed the proceeding on the merits.

Additionally, in Cox v Subway Surface Supervisors Association, et al., 69 AD3d 438, the Appellate Division, addressing a union’s duty of fair representation, said:

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 Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, the court held that "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.”

** Should a unit member sues a union for its alleged violation of its duty of fair representation, he or she must name the specific individual or individuals involved in, or whose actions constituted, the violation [see Grahame v Rochester Teachers’ Associations, 262 AD2d 963, motion for leave to appeal denied, 94 NY2d 796].

*** 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. 

N.B. 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.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07272.htm