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Wednesday, July 26, 2017

The collective bargaining representative's duty of fair representation


The collective bargaining representative's duty of fair representation
Henvill v Metropolitan Transp. Auth., 2017 NY Slip Op 01785, Appellate Division, First Department

One of the issues in Winston Henvill's Article 75 petition seeking to vacate the arbitration award that terminated his employment with the Metropolitan Transportation Authority [MTA] was his allegation that his collective bargaining representative, the Metropolitan Transportation Authority Police Benevolent Association [PBA], breached its duty of fair representation.

The Appellate Division, however, said that none of the allegations in Henvill's complaint supported his claim that that PBA's conduct in representing him at the disciplinary arbitration hearing that resulted in his termination was arbitrary, discriminatory or done in bad faith.

At most, said the court, Henvill alleged that PBA "was irresponsible or negligent" and that was not sufficient to show unfair representation. As the Appellate Division observed in Badman v CSEA, Inc., 91 AD2d 858, "To sustain a cause of action for breach of the duty of fair representation there must be substantial evidence of fraud, deceitful action or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives." Further, as the court held in Trainosky v Civil Service Empls. Assn, 130 AD2d 827, "the fact that the union was guilty of mistake, negligence or lack of competence does suffice" to prevail in an action for alleged unfair representation.

The Appellate Division then ruled that because Henvill failed to state an unfair representation claim against PBA, his claim against his employer, MTA, for its alleged breach of the collective bargaining agreement must also fail.

As to Henvill's challenge of the arbitration procedure itself, the court said that he failed to show the existence of any of the statutory grounds for vacating the arbitrator's award such as fraud, bias or the failure to follow proper procedure.

Finally, the Appellate Division rejected Henvill's argument that the arbitrator's fact-finding was irrational and required vacatur in light of "the well-settled principle that courts in considering a petition to vacate a voluntary arbitration may not review the arbitrator's findings of fact."

The decision is posted on the Internet at:


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