A cause of action can be and commonly is, brought after termination, premised on breach of the collective bargaining agreement or breach of the duty of fair representation during employment. (See, e.g., DelCostello v Teamsters, 462 U.S. 151, supra; Vaca v Sipes, 386 U.S. 171; Gosper v Fancher, 49 A.D.2d 674, affd 40 N.Y.2d 867, cert denied 430 U.S. 915; Ferri v Public Employees Fedn., 92 A.D.2d 1054; Jackson v Regional Tr. Serv., 54 A.D.2d 305.) The fact that employment has terminated, in such instances, cannot absolve the labor organization of its responsibilities under the collective bargaining agreement and the law.
Although the State and its political subdivisions are excluded from the definition of "employer" contained in subdivision (2) of section 2 of the National Labor Relations Act ( 29 U.S.C. § 152), the courts in New York have recognized a similar duty of fair representation on the part of public sector unions predicated on their role as exclusive bargaining representatives (e.g., Gosper v Fancher, 49 A.D.2d 674, affd 40 N.Y.2d 867, cert den 430 U.S. 915; Menkes v City of New York, 91 A.D.2d 654, 655; De Cherro v Civil Serv. Employees Assn., 60 A.D.2d 743; Jackson v Regional Tr. Serv., 54 A.D.2d 305).
The duty of a labor organization to fairly represent its members, which was created by Federal case law, is violated where a union's conduct toward a member is arbitrary, discriminatory or in bad faith ( see, Vaca v. Sipes, 386 U.S. 171, 190; see also, Hines v. Anchor Motor Frgt., 424 U.S. 554, 568-569). A showing that a labor organization handled a member's grievance in a perfunctory manner is also sufficient to establish a breach of the duty of fair representation ( Vaca v. Sipes, supra, p 191; see, Gosper v. Fancher, 49 A.D.2d 674, affd 40 N.Y.2d 867, cert denied 430 U.S. 915). The duty of fair representation has been recognized in New York ( see, Gosper v. Fancher, supra) and has been applied to public employment situations ( see, Matter of Civil Serv. Bar Assn. v. City of New York, 64 N.Y.2d 188; De Cherro v. Civil Serv. Employees Assn., 60 A.D.2d 743, 744).
Special Term erred in refusing to dismiss the third cause of action in the amended complaint. Said cause of action, which seeks damages for loss of reputation arising out of defendant's breach of duty of fair representation, is not recognized by the courts of this State. In Gosper v. Fancher ( 49 A.D.2d 674, affd 40 N.Y.2d 867) the limit of a union's liability for damages is set forth: "The union * * * was only liable for loss of employment damages `to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer' (Czosek v. O'Mara, 397 U.S. 25, 29; Schum v. South Buffalo Ry. Co., 496 F.2d 328)." Clearly, damages for loss of reputation do not fall under this category.
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. The Supreme Court retains jurisdiction over all labor contracts when the question of fair representation arises (Gosper v Fancher, 49 A.D.2d 674, affd 40 N.Y.2d 867, cert den 430 U.S. 915). This provides employees with assurance of impartial review of union conduct.
In this area, the State law closely parallels the Federal rules as interpreted pursuant to the provisions of the NLRA. (See, Gosper v Fancher, 49 A.D.2d 674, affd 40 N.Y.2d 867, cert denied 430 U.S. 915; Menkes v City of New York, 91 A.D.2d 654, 655; De Cherro v Civil Serv. Employees Assn., 60 A.D.2d 743; Jackson v Regional Tr. Serv., 54 A.D.2d 305.) The allegations of plaintiff's complaint outline a chain of events which terminated, for determination of the Statute of Limitations, on June 2, 1983.