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Friday, January 29, 2016

Decision (2015) in Morton v Mulgrew Concerning UFT Members Who Resigned After Nov. 1, 2011 and Were Denied Their Rights in the New UFT MOA

Dianna Morton
Plaintiffs, whose case was dismissed, claimed that:

"The amended class action complaint alleges that "(t)he exclusion of Plaintiffs and Class members from the 2014 CBA evidences a total lack of representation of their interest by the UFT during negotiations[, which was] beyond arbitrary, discriminatory, and in bad faith[, and constitutes] a breach of the UFT's duty of fair representation owed to the Plaintiffs and Class members....the UFT, in reaching an overall agreement on the 2014 MOA, "refused to negotiate on behalf of former teachers and union members who resigned after November 1, 2011 as it believed that it did not owe any duty to those individuals[, and that] the UFT did not endeavor to balance the rights of" such individuals. ."

The New York State Supreme Court dismissed the Plaintiff's case, and Plaintiffs appealed as 

Plaintiffs seek reversal on the following grounds:

1)             The court erred in determining that plaintiffs failed to allege a cause of action pursuant to CPLR 3211(a)(7),

2)             General Association Law § 13 was overruled by statute; and

3)             The Public Employment Relations Board cannot exercise jurisdiction over the Plaintiffs' class action claim.

Dated: August 21, 2015

Recent PERB decisions


2015 NY Slip Op 31363(U)Docket No. 652211/2014, Motion Sequence No. 1.
Supreme Court, New York County.
April 21, 2015


Upon this motion, defendant, Michael Mulgrew, as President of the New York United Federation of Teachers, Local 2, AFT, AFL-CIO (the UFT), moves, pursuant to CPLR 3211 (a) (7), to dismiss this class action, for breach of the duty of fair representation, brought by plaintiffs on behalf of persons who were members of the UFT, employed by the New York City Department of Education (DOE) at any time between November 1, 2009 and June 30, 2014, whose employment with the DOE ended on or before June 30, 2014 for reasons other than retirement or termination, and who would be entitled to retroactive benefits under the 2014 Collective Bargaining Agreement, negotiated between the UFT and the DOE (the 2014 CBA), if presently employed. Plaintiffs cross-move for leave to file a second amended class action complaint.


The UFT is recognized under the New York State Public Employees' Fair Employment Act, Civil Service Law § 200, et seq. (CSL, also referred to herein as the Taylor Law), as the exclusive bargaining agent for non-supervisory pedagogical personnel, and other titles, working predominantly in the New York City public schools. A collective bargaining agreement between the UFT and the DOE, expired in October 2009 without agreement on a successor contract.
In January of 2010, the UFT filed a declaration of impasse with the New York State Public Employment Relations Board (PERB), pursuant to CSL § 209. As of February 22, 2010, pursuant to its authority under CSL § 209 (3) (a), PERB issued a letter appointing a mediator to assist the parties in negotiations. As the mediation was unsuccessful, PERB then issued a letter, as of September 24, 2012, pursuant to its authority under CSL § 209 (3) (b), appointing a public fact-finding panel to make a non-binding recommendation as to potential terms and conditions of employment for a successor agreement.
On May 1, 2014, the parties announced that they had tentatively reached agreement on a new CBA covering the nine-year period from November 1, 2009 through October 31, 2018, which was memorialized in a Memorandum of Agreement (the 2014 MOA, and sometimes herein the 2014 Collective Bargaining Agreement, or the 2014 CBA; see Klinger affirmation, exhibit 8), and ratified by a vote of 69,815 UFT members in favor, and 20,655 UFT members against on June 3, 2014.
At issue in this action are provisions of the 2014 MOA regarding retroactive pay. The 2014 MOA states that
[u]pon ratification, the City shall establish a Structured Retiree Claims Settlement Fund in the total amount of $180 million to settle all claims by retirees who have retired between November 1, 2009 through June 30, 2014 concerning wage increases arising out of the 2009-2011 round of bargaining. The Fund will be distributed based upon an agreed upon formula.
2014 MOA, § 3C.
The 2014 MOA then goes on to delineate benefits for those who were active and continuously employed during the term of the agreement (id., § 3E), and those who retired from service after June 30, 2014 (id., § 3D). The 2014 MOA does not offer any benefits for those who are neither active nor retired. In other words, there is no benefit offered for the plaintiffs herein, i.e., former UFT members who resigned or were discontinued.
Plaintiffs now bring an action in which their sole cause of action against the UFT is for breach of duty of fair representation. The amended class action complaint alleges that "[t]he exclusion of Plaintiffs and Class members from the 2014 CBA evidences a total lack of representation of their interest by the UFT during negotiations[, which was] beyond arbitrary, discriminatory, and in bad faith[, and constitutes] a breach of the UFT's duty of fair representation owed to the Plaintiffs and Class members." Amended Class Action Complaint, ¶¶ 63-65.
In the proposed second amended class action complaint, the plaintiffs add the allegations that the UFT, in reaching an overall agreement on the 2014 MOA, "refused to negotiate on behalf of former teachers and union members who resigned after November 1, 2011 as it believed that it did not owe any duty to those individuals[, and that] the UFT did not endeavor to balance the rights of" such individuals. Second Amended Class Action Complaint, ¶¶ 54-56.


The UFT argues that the court should dismiss this case under the "Martin Rule," which established that "the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven." Martin v Curran, 303 N.Y. 276, 282 (1951). Alternatively, the UFT urges that the court decline to exercise jurisdiction in this matter, and leave the resolution of the dispute to PERB. Finally, the UFT maintains that the complaint fails to plead material facts giving rise to the essential elements of a claim sounding in breach of the duty of fair representation.
Plaintiffs argue that the court should find that New York General Association Law § 13 has been altered by common law and CSL § 209-a (2) (c); or otherwise that CSL § 209-a (2) (c) was satisfied by the union-wide ratification vote approving the MOA. Plaintiffs also urge that the court find that UFT owed the plaintiffs a continued duty of fair representation, and that UFT's alleged decision not to represent the plaintiffs at all was arbitrary, discriminatory, or in bad faith.

Cross Motion to Amend the Complaint

As a preliminary matter, UFT argues that the Court should deny plaintiffs' cross motion for leave to file the amended complaint because it "merely repackages the existing conclusory assertion that the UFT somehow failed or refused to represent Plaintiffs, with no supporting facts having been articulated," and the "amendment is futile as the proposed additions, even if accepted, could not cure the fatal deficiencies identified in Defendant's Motion to Dismiss." Memorandum in Opposition to Cross Motion at 10. This argument is rejected.
First, given a choice, this court, absent prejudice or surprise resulting directly from any delay in defining the causes of action, errs on the side of freely granting leave to amend. CPLR 3025 (d);Fahey v County of Ontario, 44 N.Y.2d 934, 935 (1978). Second, it is the longstanding preference, and strong public policy, in New York, that cases be decided on their merits. See Rivera v City of New York, 292 A.D.2d 246 (1st Dept 2002). Finally, UFT's assertion that the proposed amendments do not cure the deficiencies of the complaint suggests that there is no particular prejudice to UFT in allowing the amendment, and that the essence of UFT's motion to dismiss is undisturbed by directing it toward the second amended class action complaint. The cross motion to amend is granted, and the motion to dismiss is directed to that complaint.

Motion to Dismiss Breach of the Duty of Fair Representation

On a motion to dismiss, pursuant to CPLR 3211, the challenged pleading is afforded a liberal construction, and the facts alleged therein are generally accepted as true, and it is given the benefit of every possible favorable inference. The court seeks only to determine whether the facts as alleged fit within any cognizable legal theory. See e.g. Leon v Martinez, 84 N.Y.2d 83, 87-88 (1994). Despite this, unsubstantiated speculation is insufficient to defeat an otherwise properly brought motion to dismiss. See Mark Hampton v Bergreen, 173 A.D.2d 220, 220 (1st Dept 1991) (inherently incredible, unsupported, or flatly contradicted facts, as well as allegations consisting of bare legal conclusions are not entitled to the presumption of truth and the benefit of every favorable inference).
As a backdrop to this matter, the court notes that General Associations Law § 13 provides that
[a]n action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section.
The liability aspect of General Associations Law § 13 operates within the context of CSL § 209-a, under which "[a] breach of the duty of fair representation entails a showing of conduct by a union that is arbitrary, discriminatory or founded in bad faith." Butler v McCarty, 306 A.D.2d 607, 608 n1 (3d Dept 2003). Under New York common law, courts have required "substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives." Badman v Civil Serv. Empls. Assn., 91 A.D.2d 858, 858 (4th Dept 1982) (emphasis added), citing Street, Railway & Motor Coach Empls. v Lockridge, 403 U.S. 274, 299 (1971), and Humphrey v Moore, 375 U.S. 335, 348 (1964). "[A]bsent [such] improper intent, a union does not breach the duty of fair representation [under New York law] by entering into an agreement which favors some employees over others." McGovern v Local 456, Intl. Bhd. of Teamsters, Chauffeurs & Warehousemen & Helpers of Am., AFL—CIO, 107 F.Supp.2d 311, 319 (SD NY 2000); see also Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. Of Teamsters v City of New York, 64 N.Y.2d 188, 197 (1984) ("[w]here the union undertakes a good-faith balancing of the divergent interests of its membership and chooses to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees, such accommodation does not, of necessity, violate the union's duty of fair representation"); CSL § 209-a (2).
The standing aspect of General Associations Law § 13 was recently treated in Palladino v CNY Centro(23 N.Y.3d 140, 147-48, rearg denied 23 N.Y.3d 1030 [2014]). Palladino maintained, contrary to the assertions of plaintiffs, that the court's prior statutory interpretations of the operation of General Associations Law § 13 remain in place. More specifically, the court stated that "New York [clings] to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue." Id. at 148 (citation and internal quotation marks omitted).
Here, plaintiffs' cursory allegation added in the second class action complaint, even if afforded the benefit of every favorable inference, is conclusory at best. Plaintiffs merely state that the UFT did not bargain on their behalf. However, the existence of retroactive pay provisions in the MOA is a clear indication that retroactive pay was, indeed, a part of the negotiation. See Matter of County of Erie v State of New York, 14 A.D.3d 14, 16 (3d Dept 2004) ("[w]here, however, a CBA is silent on an issue,the unilateral implementation of procedures regarding matters subject to collective bargaining violates the statutory duty to bargain under Civil Service Law § 209-a [1] [d]") (emphasis added); see also Matter of Roma v Ruffo, 92 N.Y.2d 489, 494 (1998) ("when the dispute between public employer and the employees' representative arises during term of an CBA, the statutory duty to bargain collectively and the improper practice of failing to do so in good faith apply only when the parties' dispute is outside the terms of the CBA, but not when the condition of employment in question is expressly provided for in the parties' agreement") (emphasis added); CSL § 209-a. Moreover, as indicated in Matter of Civil Service Bar Assn. (64 NY2d at 197), that the UFT gained the benefit of retroactive pay for some members, and not for plaintiffs, is not actionable.
In addition, plaintiffs make the conclusory allegation that UFT's decision not to represent the plaintiffs at all was arbitrary, discriminatory, or in bad faith. First, as noted above, there is every indication that no such decision was made. Moreover, plaintiffs fail to give any indication that facts indicating UFT's purported decision could be discovered. See e.g. CPLR 3211 (d) ("[s]hould it appear from affidavits submitted in opposition to a motion [to dismiss] that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion").
The court finds the various citations to PERB decisions offered by the plaintiffs referring to the jurisdiction of PERB to be taken out of context. In all of the decisions offered, the subject unions refused to represent an individual with regard to discharge or disciplinary procedures. For example, the quote from Matter of Jeffrey Kaufman, Charging Party, and United Federation Of Teachers, Local 2, AFT, AFL-CIO, Respondent (39 PERB ¶ 4540) that "[t]he Board does not permit the filing of class action charges by individuals" is taken from a footnote (note 3) in that decision. Meanwhile, plaintiffs ignore the concluding admonition of the decision that "[a]s long as employee organizations and employers do not impinge upon basic organizational or collective negotiation rights in dealing with employees as union members, their conduct is not within the purview of the Act." First emphasis added; second emphasis original. This is, thus, an indication that while PERB does not permit class actions, PERB is willing to hear complaints of plaintiffs where the matter involves collective negotiation rights. See e.g. Matter of Thomas C. Barry, Charging Party, and United University Professions, Respondent, 21 PERB ¶ 3025 ("[w]hile we have held many times that PERB's procedures do not permit the filing of class action improper practice charges, and that PERB will accordingly not order remedial relief on a class-wide basis, we have also held that an agency fee payer has standing to file an improper practice charge alleging that certain aspects of an agency fee refund procedure are violative of his own Taylor Law rights, even if he has acted in conformity with a challenged procedure").
Given PERB's position, the court perceives no reason that the parties adversely affected by the MOA cannot be named; it is beyond question that the DOE will have records of its employees. As such, that PERB does not permit class actions is irrelevant to the plaintiffs' ability to gain relief if a breach of the duty of fair representation has occurred; the plaintiffs can obtain the names of affected parties and, with permission, institute proceedings on their behalf.
Finally, plaintiffs rely on De Cherro v Civil Serv. Empls. Assn. (60 A.D.2d 743, 744 [3d Dept 1977]) to assert that this matter may not be referred to PERB because "[t]he Supreme Court retains jurisdiction over all labor contracts when the question of fair representation arises. This provides employees with assurance of impartial review of union conduct. To hold otherwise in this case would strip the public employee of the protection afforded by the fair representation doctrine." Citations and internal quotation marks omitted. This reliance is misplaced. Plaintiffs fail to note the immediately prior passage in DeCherro, which indicates that the question was not whether PERB had any jurisdiction, but, rather, whether it had exclusive jurisdiction: "PERB's sphere of exclusive jurisdiction is limited and does not preclude judicial relief in matters outside its range of jurisdiction. .At issue in this case is not an improper employment practice over which PERB has exclusive authority, but rather, an issue concerning whether or not the duty of fair representation guaranteed to plaintiff by the employment contract has been fulfilled." Emphasis added.
Given the well-established jurisprudence in this area, this court adopts the position of the Court of Appeals in Palladino, which is that although the standards set under General Associations Law § 13 and the Martin Rule are onerous, "union members like [plaintiffs] 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 pursuant to the Taylor Law." 23 NY3d at 152.
In accordance with this decision, it is hereby
ORDERED the motion of cross motion of plaintiffs to amend the complaint is granted; and it is further
ORDERED that the motion of defendant, Michael Mulgrew, as President of the New York United Federation of Teachers, Local 2, AFT, AFL-CIO, to dismiss this class action, for breach of the duty of fair representation is granted; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of defendants dismissing this action, together with costs and disbursements to defendants, as taxed by the Clerk upon presentation of a bill of costs.

List of Documents:

Amended Summons and Complaint
Affirmation of Alan Klinger for the UFT
Memorandum of Law - UFT
Opposition - Plaintiffs
Notice of Appeal
Pre-Argument Statement

EXCLUSIVE: Ex-teachers will sue union for retroactive pay under new contract

Educators who resigned before the new teachers contract was ratified will sue the United Federation of Teachers on Monday for their share of retroactive pay. These former educators argue that they're owed retroactive pay from 2009 to 2011, which is when the union was without a contract. Up to 9,000 former employees resigned during that two-year span.

NY Daily News, 
Monday, July 21, 2014

Educators who resigned prior to ratification of the new teachers contract will sue Monday to get their piece of retroactive pay.

Lawyer Daniel Shimko said his fim, Salem and Shimko, will file a class action suit against the United Federation of Teachers seeking retroactive pay for teachers and other eligible Education Department employees who quit their jobs between Oct. 31, 2009, and June 30 before their eligible retirement.

He will argue that the union did not properly represent members when it agreed to exclude educators who quit during that period from some $3 billion in retroactive pay to be doled out under the new contract.

“If you’re going to try and get retroactive wages for retirees, why exclude resignees? They were part of the UFT’s workforce, they paid their dues, they weren’t fired for cause,” said Shimko, who will file in Manhattan Supreme Court.

More than 6,800 teachers quit of their own volition between the 2009-10 and 2011-12 school years, according to a January 2013 article in the union’s newspaper. If similar attrition patterns held for the subsequent year, the number of teachers potentially eligible in the class action suit could approach 9,000.

One of the four initial plaintiffs in the suit, Dianna Morton, 54, said she resigned in 2011 after 14 years as a paraprofessional due to a disability.

“That’s the raise we should have gotten all along — and now we’re not getting it. We deserve it!” said Morton, who worked with special education students, mainly at Public School 73 in Brooklyn.

Morton said she earned about $25,000 when she quit, meaning she’d be eligible to receive $2,040 in back pay if the suit prevails in court.

A spokeswoman for the teachers union would not comment on the potential lawsuit.

The new nine-year contract includes a 4% bump for both 2009-10 and 2010-11 — years teachers went without a contract and other city unions got raises.

Both 2012-13 and 2013-14 come with 1% raises.

With Ben Chapman


Anonymous said...
All workers who were employeed are entitled to retroactive pay and more importantly, the incentives that may go along with future retirement benefits they worked for. Teachers working an established period of time (5 or 10yrs) are entitled to some form of pension at a certain age, regardless if they are still employeed, retired, or resigned. Therefore, the working class citizens should get every dollar earned, even if they resigned.
Anonymous said...
The lawyers will cut in to your class action suit costs if your retro monies prevail BUT since you quit the DOE, you've forfeited all future benefits. The ones who retired completing those years are the only ones entitled to these monies.
Anonymous said...
Any teacher who has worked during those years are entitled to the retroactive pay, regardless if they have resigned or retired. The retroactive money is not an entitlement or a benefit. It was money already earned!