The employee organization's duty of fair representation

The employee organization's duty of fair representation
Pietraszewski and CSEA Local 1000, 32 PERB 3019

Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.

CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.

Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.

CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”

PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.

This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.

PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.

According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.

In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
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Accidental disability retirement

Accidental disability retirement
Bloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]

Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school. Former New York City Board of Education Chancellor Joseph Fernandez sustained her grievance, holding that Bloom had suffered “a line of duty injury.”

But when Bloom filed an accidental disability retirement application with the New York City Teachers’ Retirement System [TRS], TRS held that her injuries were not causally related to the alleged exposure to construction materials and rejected her application. TRS’ decision was upheld by the courts (Bloom v TRS, 233 AD2d 254, dismissed in part and denied in part, 90 NY2d 838.

Bloom then sued the district and the City for “a personal injury,” negligence and reckless conduct. The board of education moved for summary judgment, arguing that TRS’s determination “has a collateral estoppel effect.”

Bloom, also relying on “collateral estoppel,” asked the court for summary judgment based on the favorable grievance determination by the Chancellor, contending that the Chancellor’s determination constituted an admission of the district’s liability.

As to the board’s claim of collateral estoppel, the court explained that Bloom had “voluntarily chose to participate in the adjudicative resolution process of TRS by applying for benefits, and thus she may fairly be collaterally estopped by the TRS determination.”

With respect to Bloom’s argument, the court said that the Chancellor’s acknowledgement of the causal connection in the grievance adjudication normally would be a binding admission against the board.

Justice Braun said that although “... a quasi-judicial agency determination can have a collateral estoppel effect” that would bar further litigation; here there are “two conflicting decisions.” Therefore, the court concluded, “logically they must be held to cancel out each other.”

Since there is a significant issue of fact exists as to whether the actions and inactions of board was the proximate cause of Bloom’s injuries, granting summary judgment to either Bloom or the board would not be appropriate.

Accordingly, a trial was required.
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Union sued for negligence for allegedly providing misinformation concerning retirement benefits

Union sued for negligence for allegedly providing misinformation concerning retirement benefits
Grahame v Rochester Teachers Association, 262 AD2d 963, motion to appeal dismissed, 94 NY2d 796

May a union be sued for alleged negligence with respect to information it provided to a member? This was the question presented by Harriet E. Grahame, as the executrix of the estate of Carole A. Wemett. Grahame is suing the Rochester Teachers Association for negligence, alleging that it provided Wemett with “erroneous information ... regarding her retirement benefits.” The Appellate Division has upheld a State Supreme Court’s refusal to dismiss Grahame’s negligence action.

The association attempted to have the case dismissed because Grahame “failed to allege that the individual members of defendant union ratified the acts of their representative.” The Appellate Division said that it was unnecessary for Grahame to do so as her action against the union is based on the negligence of its agent “in the course of performing an essential activity of the [union].” Also rejected was the association’s argument that Grahame’s complaint “is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems.”

The Appellate Division said that because the collective bargaining agreement does not address employees’ retirement benefits, “the alleged negligent misrepresentation action was not subsumed by the duty of fair representation.”
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Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement

Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department

Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.

Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.

The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.

The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL

Collateral estoppel

Collateral estoppel
Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542

The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.

The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.

Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”

The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.

Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.

According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.

The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.

The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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