Availability of direct action in the event the employee organizations refuses to process unit member's grievance to arbitrationBurning v Niagara Frontier Transit Metro System and Local 1342, 273 AD2d 830, Motion for leave to appeal denied, 95 NY2d 765 Few collective bargaining agreements allow a unit member to file a demand to arbitrate a grievance. In the absence of such authority, the general rule is that only the employee organization can demand that a grievance be submitted to arbitration. Suppose the employee organization decides not to appeal a disciplinary or other grievance to arbitration. What, if any, action — usually referred to as direct action — can the unit member take in an attempt to challenge or go around the union's decision? The Burning case considers the major exception to the general rule barring direct action by a unit member — the unit member may initiate direct action against the employer if he or she can establish that he or she was denied fair representation by employee organization. Kenneth L. Burning was terminated from his position with the Niagara Frontier Transportation Authority. Burning sued in an effort to overturn his dismissal, contending that his union, Local 1342, Amalgamated Transit Union, breached its duty of fair representation when it decided not to demand arbitration challenging his termination by the Authority. The Appellate Division, however, noted that the mere failure of a union to proceed to arbitration does not establish a breach of the duty of fair representation. If an employee organization declines to arbitrate a grievance over the objections of its member the individual may take direct action only if he or she can demonstrate that the Union's conduct was arbitrary, discriminatory or in bad faith. As Burning did not show that the union's decision was arbitrary, discriminatory or made in bad faith, the Fourth Department ruled that Supreme Court properly dismissed Burning's petition challenging his dismissal.
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