(AUD) is a pro-labor, non-profit organization dedicated to advancing the principles and practices of democratic trade unionism in the North American labor movement.

No DFR recourse for NY State public sector employees

On April 8, 2014, the highest court in New York State upheld a rule which essentially prohibits public sector unionists from filing duty of fair representation (DFR) suits against their unions. DFR is a body of law regarding the duty a union owes its members as a bargaining agent. Most frequently, DFR relates to how unions handle grievances relating to termination. In theory, a union member has the right to sue their union if they can prove that a grievance was lost due to arbitrary, discriminatory, or bad-faith conduct on behalf of the union’s representative. DFR suits, in effect, are intended to be a stopgap for people where both the employer and the union can be shown to be biased in their handling of the initial grievance. Michael Goldberg, a member of AUD’s Board of Directors, published an article, entitled “The Duty of Fair Representation: What the Courts Do in Fact,” in which he reported that under 5% of DFR cases succeed, while up to 45% never even reach the merits of the case itself due to procedural obstacles, including short time limits on filing or requirements to exhaust internal union remedies before going to the court. Goldberg concludes that DFR is “little more than an empty promise which ultimately fails to provide workers with meaningful protection from arbitrary, discriminatory, or perfunctory union conduct.”

Public sector union members in New York State have a difficult time even bringing a DFR suit against their union due to precedent called the Martin rule, which was upheld in the April 8 decision. The Martin rule holds that one cannot sue a “voluntary unincorporated association,” as it has no existence independent of its members. Voluntary unincorporated associations include public sector unions. Rather than sue the union as a whole, the individual must sue every member of the union and prove that each member of the union is individually responsible, which effectively prevents any DFR case for public employees in New York State. Because the decision comes from highest court there is no option to appeal. Now the only recourse is the Public Employee Relations Board (PERB).

The dissent in the original Martin case “stressed that trades unions had been ‘[r]ecognized as juristic entities under both Federal and State statutes for many purposes’ and ‘are no longer mere unincorporated associations as that term was formerly understood. As a practical [matter], it has been held that labor unions have as perpetual an existence as corporations’” The opinion in the most recent case, Eugene Palladino v. CNY Centro, Inc., Charles Watson, as the Business Agent of Amalgamated Transit Union, Local 580, and ATU, Local 580, also notes that decisions regarding grievances are made by a union’s executive board, and not the general membership. There is no situation in which the entire membership could feasibly be held responsible for a union’s failure to meet the duty of fair representation because that is not how unions are structured. Yet the majority opinion still held that this was not reason enough to overturn the precedent set in Martin, stating that the “plaintiff and other union members like him are not without a remedy. Public employees in New York may bring an improper practice charge before the New York State Public Employment Relations Board.”
The majority decision in Palladino further separates the remedies available to members of private sector unions from those available to members of public sector unions. Members of private sector unions, after exhausting internal remedies, can go to the National Labor Relations Board (NLRB) before filing a DFR suit in Federal Court. Members of public sector unions, having exhausted internal remedies, can go to the PERB, but are denied the right to pursue a DFR suit because of precedent that even the majority opinion acknowledges is outdated and inconsistent with the current status and structure of public sector unions.

The dissent in this case takes a stronger stance against Martin, noting that the standard has not been applied since it was set in 1951. Judge Pigott states that the statute referenced in Martin was “enacted for the convenience of a plaintiff […] by enabling him to sue […] without naming, as defendants, hundreds or even thousands of members of that union” and further contends that “where the Martin court went wrong was finding that, despite the fact that a plaintiff could now bring an action directly against the union, the union could then face no liability under the law.” The very purpose of the union, he notes, is to act on behalf of the members without needing a full member vote on every issue. By bringing suit against the executive board of the union, who are elected to represent the full membership, Palladino should have met the standard. Judge Pigott states unequivocally that Martin should be removed for all unincorporated associations.

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