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January 02, 2018

Union's duty of fair representation


Union's duty of fair representation
Okpo v City of New York, 2017 NY Slip Op 09272, Appellate Division, First Department

In the words of the Appellate Division, "[t]he nature and purpose of the duty of fair representation — representation in collective bargaining grievances — thus does not support expansion of the duty to cover article 78 proceedings."*

Pauline Okpo, a probationary employee, was terminated from her position and filed a grievance objecting to her dismissal. The union declined to challenging Okpo's dismissal and Okpo initiated an Article 78 in Supreme Court. Supreme Court granted the union's motion for summary judgment and dismissed Okpo's complaint.

The Appellate Division unanimously affirmed the Supreme Court's ruling, explaining:

1. As a probationary employee, Okpo's termination was not the basis for a "grievance" under the controlling collective bargaining agreement [CBA]. Accordingly, the employee organization had no duty of fair representation with respect to Okpo's challenging her termination during her probationary period:

2. Assuming that the employee organization did, in fact, owed Okpo a duty of fair representation, it would nonetheless have had no duty to initiate a CPLR Article 78 proceeding on her behalf challenging her termination while serving as a probationary employee as "[t]he duty of fair representation is rooted in the bargaining agent's exclusive statutory authority to pursue grievances on behalf of covered employees under the CBA"; and

3. The nature and purpose of the duty of fair representation — representation in collective bargaining grievances and such a duty does not support expansion of the duty to cover Article 78 proceedings.

In contrast, the Appellate Division pointed out that as a probationary employee, however, Okpo could have challenged her termination herself in an Article 78 proceeding (see e.g. Matter of Castro v Schriro, 140 AD3d 644, affd29NY3d 1005).

* Typically litigation arising involving collective bargaining grievances would be prosecuted pursuant to Article 75 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:


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