December 18, 2015

The aggrieved employee has the burden of proving that his or her employee organization’s action, or inaction, breached its “Duty of Fair Representation”

The aggrieved employee has the burden of proving that his or her employee organization’s action, or inaction, breached its “Duty of Fair Representation”
DeOliveira v New York State Pub. Empl. Relations Bd., 2015 NY Slip Op 08228, Appellate Division, Third Department

Donna Scarpinati DeOliveira filed an improper employee organization practice charge with the Public Employment Relations Board [PERB] alleging that the Cairo-Durham Teachers Association [Association], the employee organization representing her purposes of collective bargaining, violated its duty of fair representation.

The Cairo-Durham Central School District [District] had appointed DeOliveira a position in the elementary education tenure area subject to her satisfactory completion of a three-year probationary period. She subsequently absented herself for a “period of unpaid maternity leave.”

After DeOliveira returned to teaching full time the District abolished four positions in the elementary education tenure area and she was notified that she would be terminated at the end of the school year because her period of unpaid maternity leave that she took had the affected her seniority status. As a result she became one of the four least senior teachers in her tenure area.

DeOliveira asked the Association to file grievances on her behalf challenging the District's calculation of her seniority for the purposes of layoff but the Association decided that she had no viable claims and declined to file the grievance. DeOliveira later learned that, prior to the layoffs, the Association had agreed with the District's decision to exclude at least two sixth grade teachers from the elementary education tenure area — Peter Goodwin and Erin Murphy, both of whom were appointed by District after DeOliveira’s effective date of appointment.

In her improper practice charge filed with PERB, DeOliveira alleged, among other things, that the Association did not fairly represent her interests because it:

1. willfully failed to investigate her concerns regarding the impact of her unpaid maternity leave on her seniority status;

2. falsely represented to her that it had consulted with an attorney concerning the matter on her behalf; and

3. intentionally withheld from her the so-called "clandestine agreement" it made with the District to protect Goodwin and Murphy from being laid off.

Following a hearing, a PERB Administrative Law Judge [ALJ] dismissed the charge. PERB affirmed the ALJ’s ruling and ultimately DeOliveira commenced a CPLR Article 78 proceeding seeking review of PERB's decision. Supreme Court transferred the matter to the Appellate Division.

Citing Chenango Forks Central School District v PERB, 21 NY3d 255, the Appellate Division said that its review of a PERB determination is limited to whether it is supported by substantial evidence, that is, whether there is a basis in the record allowing for the conclusion that "PERB's decision was legally permissible, rational and thus not arbitrary and capricious.” The court said that in its view there was substantial evidence in the record supporting PERB's determination that the Association did not breach its duty of fair representation it owed to DeOliveira.

To establish a claim that the employee organization breached its duty of fair representation the Appellate Division explained that "there must be a showing that the activity, or lack thereof, which formed the basis of the charges … was deliberately invidious, arbitrary or founded in bad faith." DeOliveira, said the court, failed to made this showing regarding any of her specific allegations.

As to DeOliveira’s claim that the Association willfully failed to adequately investigate the District's exclusion of the time that she was on unpaid maternity leave from its calculation of her seniority, she had admitted that she met with Association representatives on multiple occasions regarding her concerns and the Association's president testified that a substantial investigation followed. Further, said the Association, DeOliveira was also advised in writing of its rationale and ultimate decision not to process her grievance.

As to DeOliveira’s allegation that the Association’s president told her that he would consult with a New York State United Teachers [NYSUT] attorney regarding her grievance, the Association president admitted that he did not consult with an attorney but said that he did consult with a NYSUT  Labor Relations Specialist. DeOliveira, said the court, did not offer any proof that the president’s misrepresentation was intentional or that he relied on the Labor Relations Specialist’s advice in bad faith.*

Turning to DeOliveira’s argument that the Association represented her in bad faith by making a "clandestine agreement" with the District to wrongly exclude Goodwin and Murphy from the elementary education tenure area at her expense, the court said there was nothing in the record to support such a claim.

Noting that the Commissioner of Education, in his ruling in an appeal** filed with Commissioner by DeOliveira, determined that Goodwin and Murphy should have been included in the elementary education tenure area for the purpose of layoffs, the Appellate Division said that “there is no evidence that the decision not to do so was motivated by animus toward petitioner or favoritism toward Goodwin and Murphy.” At worst, said the court, the Association's agreement with the District regarding the treatment of Goodwin and Murphy, and its attendant failure to pursue DeOliveira 's grievance about it, was an honest mistake, and "the fact that a union is guilty of mistake, negligence or lack of competence does not suffice [to prove] a[n unfair representation] claim."

The Appellate Division confirmed PERB’s determination and dismissed DeOliveira’s Article 78 petition.

* The president testified that he considered the Labor Relations Specialist to be the Association's "counsel" when it came to assessing teacher grievances.

** Appeal of Donna Scarpinati De Oliveira, from action of the Cairo-Durham Central School District, Decisions of the Commissioner of Education, Decision 16,411. The Commissioner ruled that even had Goodwin and Murphy been in retained in the elementary tenure area and DeOliveira seniority determined in consideration of their “seniority” in such tenure area, DeOliveira was still the least senior teacher in the elementary tenure area.

The decision is posted on the Internet at:

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on


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