A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation

A union is not required to carry every grievance to the highest level to satisfy its duty of fair representationDelsante v CSEA Local 1000, AFSCME AFL-CIO, 2010 NY Slip Op 51145(U), decided on June 15, 2010, Supreme Court, Richmond County, Judge Judith N. McMahon [Not selected for publication in the Official Reports.] Camille Delsante was serving her probationary period. After she received her first "Probationary Progress Report," which indicated that her time and attendance was unsatisfactory, she submitted her resignation stating that "I hereby offer my resignation from my position with the New York State Office of Parks, Recreation and Historic Preservation to seek other employment effective August 6th, 2008." Kalliopi Zervos, a CSEA Labor Relations Specialist, met with Delsante to discuss her resignation and subsequently met with the Department's Associate Personnel Administrator, Joseph Lescinski, in an effort to resolve the dispute and possibly negotiate a rescission of the resignation. After reviewing Delsante's personnel record, Lescinski said that the appointing authority "would not rescind the resignation." Zervos then advised Delsante that because of her probationary status she could not further pursue any grievance. Delsante, contending that CSEA breached the duty of fair representation by failing to pursue a claim on her behalf, sued the union. In rebuttal, CSEA argued that it had fully represented Delsante but because of her probationary status the collective bargaining agreement limited the options for pursuing her claim. Accordingly, CSEA argued that it did not act in bad faith in not pursuing Delsante's claim. Although Judge McMahon dismissed Delsante's petition as untimely, she noted that although "academic," Delsante's petition would have been dismissed on the merits as CSEA "did not act arbitrary, discriminatory or in bad faith in addressing Delsante's claims." The court noted that with respect to claims based upon the alleged breach of a duty of fair representation, the charging party must establish that the union acted "deliberately invidious, arbitrary and founded in bad faith." Here, said the court, CSEA established that it pursued the avenues available to assist Delsante in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement Article §33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Significantly, CSEA demonstrated that its representative met with Delsante; spoke with Mr. Lescinski in an effort to negotiate her reinstatement; and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. Citing Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, Judge McMahon said "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation." The court granted CSEA's motion for summary judgment, dismissing Delsante's petition in its entirety. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51145.htm

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