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January 23, 2020

Agency's alleged failure to process an employee's contract grievance does not state a claim that the union breached its duty of fair representation


PERB's ruled that petitioner [Employee] in this CPLR Article 78 action failed to state a claim of improper practices against his employer [Agency] and his employee organization [Union] based on his allegation that the Agency "did not process his grievances quickly enough." The Employee appealed but the Appellate Division unanimously affirmed PERB's determination.

Citing Civil Service Bar Association, Local 237 v City of New York, 64 NY2d 188, the Appellate Division explained that PERB had rationally found that Employee failed to allege facts that would show that his Union had engaged in arbitrary, discriminatory or bad faith conduct, which is necessary to state a claim that the Union had breached its duty of fair representation within the meaning of Article 14 or the Civil Service Law, typically referred to as the Taylor Law.

Noting that Employee had acknowledged that a Union representative had sent an email to the Agency seeking to schedule three of Employee's grievances for a "Step II hearing" with respect to Employee's primary complaint that the Agency "did not process his grievances quickly enough," the court opined that such an allegation "does not present a basis for finding that [the Union] breached its duty of fair representation." As the Employee failed to show that the Union had breached its duty of fair representation, he was precluded from litigating directly against the Agency for any alleged improper employer practice within the meaning of Civil Service Law §209-a(1).

Further, said the court, PERB "rationally concluded that [Employee's] charge failed to allege facts that would show that [the Agency] refused to process his grievances on the basis of improper motivation or discrimination. Indeed, the Appellate Division observed that "construed liberally in [Employee's] favor, the allegations in the charge are conclusory and fail to establish that PERB acted arbitrarily and capriciously in dismissing the charge."

The decision is posted on the Internet at:

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