Opinion
December 17, 1982
Appeal from the Supreme Court, Erie County, Stiller, J.
Present — Hancock, Jr., Doerr, Denman, Boomer and Schnepp, JJ.
Order unanimously reversed, without costs, defendant's motion granted and complaint dismissed. Memorandum: Plaintiff Stempien was terminated from his position as a bus driver for the Lackawanna School District on June 30, 1978. He alleges that his duties were illegally subcontracted out by the school district and that CSEA should have filed a grievance on his behalf in light of a decision rendered three months prior to his discharge in Matter of Saratoga Springs City School Dist. ( New York State Public Employment Relations Bd.) ( 68 A.D.2d 202, mot for lv to app den 47 N.Y.2d 711) which held that the contracting out of duties performed by public employees was a mandatory subject of bargaining under section 209-a (subd 1, par [d]) of the Civil Service Law. The record indicates that the school district had been subcontracting transportation services for several years prior to Stempien's termination and that the union acted in the belief that plaintiff's termination, along with that of several others, was caused by the economic problems of the school district as well as by reduced student enrollment. In any event, the Saratoga decision does not give rise to a meritorious grievance on behalf of plaintiff. Unlike the situation in Saratoga, the Lackawanna School District did not refuse to bargain in good faith regarding the subcontracting issue, since the union, recognizing that the discharges were warranted by economic necessity, did not demand that the school district bargain. In order to succeed on a theory of breach of "duty of fair representation" against CSEA, plaintiff must allege and prove bad faith, arbitrariness or discrimination on the part of the union ( Vaca v Sipes, 386 U.S. 171; Matter of Hoffman v Board of Educ., 84 A.D.2d 840; Albino v City of New York, 80 A.D.2d 261), none of which are alleged by plaintiff or supported by the facts. Even though plaintiff could proceed on a theory of common-law negligence against the union (see Parker v Borock, 5 N.Y.2d 156, 161-162; Donato v American Locomotive Co., 283 App. Div. 410, 415, affd 306 N.Y. 966; Pacilio v Pennsylvania R.R. Co., 381 F.2d 570, 572; Ann., 34 ALR3d 884, 900-901), the facts do not indicate that the union breached its fiduciary duty to plaintiff in failing to file a grievance which was deemed to be meritless. Since "only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" ( Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231, citing Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 N.Y.2d 285, 290), CSEA's motion for summary judgment dismissing the complaint is granted.