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Duty of fair representation

Duty of fair representation
Matter of Beattie, 32 PERB 3023

Representation by an attorney provided by a union is an important right of membership in an employee organization. The Matter of Beattie decision makes the point that an employee organization?s duty to represent a member ?in any further pursuit? of his or her claims against an employer, or in defense against any adverse action taken by the employer, ceases if the individual employs a private attorney to handle the matter.

Guilderland Teachers Aide Association member Patricia Beattie filed improper practice charges against the association with PERB in which she alleged that:

1. The association refused to file a complaint charging another school district employee with sexual harassment when asked to do so.

2. The association?s president told Beattie she would lose her job [sic] because she had employed a private attorney to represent her concerning her sexual harassment complaint.

According to the PERB decision, in response to a June 1996 complaint, Rex Trobridge, an association representative, initially determined that Beattie might have been sexually harassed by another school district employee. Trobridge later learned that in January 1996 the employee Beattie named in her complaint alleged the reverse: that Beattie had sexual harassed him. The association advised Beattie that it would provide her with legal representation in both cases.

Before the association?s attorney had filed any complaint with the Division of Human Rights or had met with the school superintendent on her behalf, Beattie hired private counsel. PERB said that at that point in time the association?s duty to represent her ceased.

Meanwhile, a private attorney named Thomas Kenney was employed by the Guilderland School District to investigate both sets of allegations. Kenney found that ?each interviewee with knowledge of the events covered by the complaints corroborated [the other employee?s] claims [of sexual harassment] and offered no support for Beattie?s claims [of sexual harassment].? Ultimately Beattie was told of Kenney?s findings and was formally reprimanded by the school superintendent.

PERB sustained its administrative law judge?s dismissal of the charges Beattie filed against the association. It ruled that Beattie?s claim that her complaint ?was handled in a perfunctory manner? by the association was not supported by the record.

PERB, in a footnote, observed that Association attorney Harold Beyer testified that he intended to pursue Beattie?s complaint with the State Division of Human Rights after exhausting the school district?s sexual harassment procedure.

As to Beattie?s allegation that association president Barbara Coogan violated the Taylor Law when she commented that ?Beattie was crazy to hire a private attorney...,? PERB said that ?there is simply nothing improper in the timing or content? of the statement.

PERB said that it viewed Cooper?s statement as ?merely an expression of [her] incredulity that a union member would choose not to utilize the counsel provided by the union, at no charge, and instead choose to pay a private attorney.?

Such a statement, said PERB, in no way violated the Taylor Law since it was an expression of an opinion by Cooper, and as such, ?is not actionable.
NYPPL

Full post as published by New York Public Personnel Law on November 02, 2010 (boomark / email).