Opinion
December 3, 1990
Appeal from the New York State Public Employment Relations Board.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with one bill of costs.
The petitioner was employed by the University of the State of New York (hereinafter SUNY) as an administrative assistant at Downstate Medical Center in Brooklyn. In June 1984, her supervisor asked her to resign. Since her personnel file did not contain a performance program, as required by the collective bargaining agreement between SUNY and her employee organization, United University Professions (hereinafter UUP), was successful in bringing about a settlement, whereby the petitioner remained in her position and an appropriate evaluation program was established. Ultimately, the petitioner was not reappointed to her position, based on a poor evaluation.
Under the terms of the collective bargaining agreement between SUNY and UUP, there existed a four-step procedure for the bringing of grievances. Accordingly, the petitioner, through the efforts of UUP, instituted a contractual grievance procedure against SUNY. The petitioner's grievance was denied through step III. UUP then declined to bring the grievance to step IV (arbitration), finding no sound contractual basis which would justify seeking arbitration. The petitioner brought an improper practice charge against UUP pursuant to Civil Service Law § 209-a (2) (a) to the respondent New York State Public Employment Relations Board (hereinafter PERB). After a hearing was held before a PERB Administrative Law Judge, the petitioner's case was dismissed for failure to prove a prima facie case. Upon review, PERB adhered to the Judge's decision. Garvin then brought the instant proceeding to review PERB's determination.
In order to establish a breach of the duty of fair representation against a union, there must be a showing that the activity, or the lack thereof, was arbitrary, discriminatory, or in bad faith (see, Matter of Civil Serv. Bar Assn. Local 237 v. City of New York, 64 N.Y.2d 188, 195-196; Matter of Civil Serv. Employees Assn. v. Public Employment Relations Bd., 132 A.D.2d 430, affd. 73 N.Y.2d 796). 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 (see, Symanski v. East Ramapo Cent. School Dist., 117 A.D.2d 18, 21; Matter of Trainosky v. New York State Dept. of Taxation Fin., 105 A.D.2d 525). There is no evidence in this record that the conduct of UUP was the product of bad faith, arbitrariness, or discriminatory conduct. Accordingly, we conclude there was substantial evidence for PERB's determination (see, Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176; Matter of Hartnett v. Wade-Mark Eleven, 156 A.D.2d 559). Lawrence, J.P., Kooper, Sullivan and Rosenblatt, JJ., concur.