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Petitioner-Employee Did Not Demonstrate the Union Breached Its Duty of Fair Representation, Therefore Petitioner Did Not Demonstrate an Exception to the “Exhaustion of Remedies” Pre-Requisite for an Article 78 Proceeding

The Second Department determined petitioner’s Article 78 action should have been dismissed because petitioner did not demonstrate an exception to the requirement that she exhaust all the grievance remedies provided by the collective bargaining agreement. Petitioner was terminated from her employment at a county community college:

Generally, an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies … . However, the failure to exhaust administrative remedies may be excused where the employee can prove that the union breached its duty of fair representation in the handling of the employee’s grievance … . Breach of the duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith … . Here, the petitioner did not allege that the union’s conduct was arbitrary, discriminatory, or made in bad faith, and the record does not support such a conclusion … . Accordingly, as the petitioner failed to establish that an exception to the exhaustion doctrine was applicable, the Supreme Court should have denied the petition and dismissed the proceeding on the merits. Matter of McLaughlin v Hankin, 2015 NY Slip Op 07272, 2nd Dept 10-7-15

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