The Union's duty of fair representation UFT Local 2 v NYC Board of Education, 34 PERB 4553 John Zito, a New York City teacher, was served with a notice of discipline pursuant to Section 3020-a of the Education Law while he was on an "extended sick leave" of absence without pay. He was told that he was to be suspended with pay pending resolution of the charges in accordance with Section 3020-a. The charges: excessive absenteeism and neglect of duty. The problem: according to the decision, Zito refused to terminate his "leave of absence without pay for restoration of health," a condition precedent to his being placed on leave with pay in connection with his being suspended in accordance with Section 3020-a. In the words of an internal union memorandum concerning the situation: "Zito wants to receive his salary while on a leave of absence without pay." Despite the union's position that there was no merit to Zito's seeking to have the Section 3020-a charges dismissed, he filed a grievance alleging the district's action violated various provisions of the collective bargaining agreement. UFT Local 2, after consultation with its attorneys and others, had declined to process Zito's grievance seeking dismissal of the disciplinary charges to "Step 3".* Local 2 concluded that insofar as relief sought by Zito — restoration to the payroll while continuing on sick leave without pay — "no contractual provision governed Zito's situation and that a grievance would, therefore, not be meritorious." Zito response to the Local's decision: he filed charges with PERB alleging that the union had violated its duty of fair representation. PERB's Administrative Law Judge [ALJ] Philip L. Maier ruled that the evidence did not demonstrate that the UFT acted in an arbitrary, discriminatory or bad faith manner when it refused to move Zito's grievance to Step 3. Further, said Maier, even if the UFT's decision not to process the grievance to Step 3 was incorrect, "this mistake would not in and of itself rise to the level of a violation of the [union's] duty of fair representation." The test announce by the ALJ to be used to determine if a union has violated its duty of fair representation: A union violates its duty of fair representation if a charging party's interpretation of the merits of the grievance is "the only possible interpretation," but the union nevertheless refuses to process the grievance, since such action amounts to arbitrary conduct. Concluding that Zito's interpretation of the contract clauses he contended had been violation was not the only possible interpretation of the collective bargaining agreement, Maier dismissed the improper practice charge filed against Local 2. * The collective bargaining permitted an employee to process a grievance at Steps 1 and 2; only the UFT could process a grievance to Step 3.
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