Eugene Palladino, Appellant,v.CNY Centro, Inc., et al., Respondents.

Brief

N.Y.February 18, 2014

To be Argued by: ROBERT LOUIS RILEY (Time Requested: 30 Minutes) Appeal No. 2013-00067 Onondaga County Clerk’s Index Nos. 2008-8650 and 2009-0473 Court of Appeals of the State of New York EUGENE PALLADINO, Plaintiff-Appellant, – against – CNY CENTRO, INC., CHARLES WATSON, as the Business Agent of the AMALGAMATED TRANSIT UNION, LOCAL 580, and the AMALGAMATED TRANSIT UNION, LOCAL 580, Defendants-Respondents. BRIEF FOR PLAINTIFF-APPELLANT ROBERT LOUIS RILEY, ESQ. Attorney for Plaintiff-Appellant University Building, Suite 325 120 East Washington Street Syracuse, New York 13202 Tel.: (315) 254-4233 Fax: (315) 476-5208 APL-2013-00067 Date Completed: June 26, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................ iii DISCLOSURE STATEMENT ............................................................................... 1 JURISDICTION ....................................................................................................... 1 QUESTION PRESENTED ..................................................................................... 2 STATEMENT OF THE CASE ............................................................................... 2 STATEMENT OF FACTS ...................................................................................... 8 A. Preliminary Matters (Collective Bargaining Agreement provisions – Centro Rules and Regulations – Union Constitution and By-Laws) .................. 8 i. CBA Provisions ..................................................................................................... 8 ii. Centro Rules and Regulations .......................................................................... 10 iii. Union Constitution and By-Laws .................................................................... 11 B. Background ........................................................................................................ 13 C. Salient Facts ....................................................................................................... 23 ARGUMENT .......................................................................................................... 26 POINT I. THE APPELLATE DIVISION FOURTH DEPARTMENT COMMITTED REVERSIBLE ERROR OF LAW IN FINDING THAT PLEADING AND PROOF OF UNANIMOUS RATIFICATION BY MEMBERS OF AN UNINCORPORATED ASSOCIATION AS EXPRESSED BY THIS COURT IN MARTIN V. CURRAN, 303 NY 276 (1951), WAS APPLICABLE TO A LABOR ORGANIZATION IN AN ACTION COMMENCED AGAINST A LABOR ORGANIZATION FOR BREACH OF DUTY OF FAIR REPRESENTATION RATHER THAN THE EXCEPTION TO UNANIMOUS RATIFICATION CARVED OUT BY THIS COURT IN MADDEN V. ATKINS, 4 NY2D 283 (1958) WHERE ELECTED UNION OFFICIALS ARE DEALAGATED WITH AUTHORITY TO ACT ON BEHALF OF THE UNION MEMBERSHIP ...................................................... 26 i A. General Associations Law § 13 ................................................................... 26 B. Labor Law § 705 .......................................................................................... 26 C. The Dissent in Martin v. Curran ............................................................... 27 D. The Madden v. Atkins exception to the unanimous ratification rule ..... 32 E. The causes of action for breach of contract and breach of the duty of fair representation .................................................................................................. 34 F. The Decision appealed from is inconsistent with prior Decisions of the Appellate Division Fourth Department ............................................................... 35 G. The Appellate Division First Department refused to apply the unanimous ratification rule set forth in Martin v. Curran in an unintentional tort lawsuit brought against an unincorporated association ............................. 37 H. It is time to abrogate the unanimous ratification rule altogether in cases involving an unincorporated association labor organization ............................ 38 I. The unanimous ratification rule if applied is a grant of immunity from suit for breach of duty of fair representation which is antithetical to very concept of the fiduciary obligation imposed on a labor union to fairly represent its members ............................................................................................ 39 CONCLUSION ....................................................................................................... 42 ii TABLE OF AUTHORITIES Grahame v. Rochester Teachers Ass'n (NYSUT/AFT-AFL/CIO), 262 AD2d 963 (4th Dep't 1999) ................................................................................................. 35, 36 Jackson v. Reg'l Transit Serv., 54 AD2d 305 (4th Dept.1976) ................... 34, 35, 37 Madden v. Atkins, 4 NY2d 283 (1958) ............................................................passim Martin v. Curran, 303 NY 276 (1951) ..............................................................passim Matter Board of Educ. Commack Union Free School Dist. v. Ambach, 70 NY2d 501 (1987) ................................................................................................................ 34 Matter of Civil Service Bar Assn., Local 237, Int. Brotherhood of Teamsters v. City of New York, 64 NY2d 188 (1984) ................................................................. 35 Piniewski v. Panepinto, 267 AD2d 1087 (4th Dep't 1999) ............................... 35, 36 Salemeh v. Toussaint ex rel. Local 100 Transp. Workers Union, 25 AD3d 411 (1st Dept. 2006) ......................................................................................................... 38, 39 Smith v. Sipe, 109 AD2d 1034 (3rd Dept. 1985), rev’d on other grounds Smith v. Sipe, 67 NY2d 928 (1986) ....................................................................................... 34 Torres v. Lacey, 3 AD2d 998 (1st Dept. 1957) ................................................. 37, 38 Vaca v. Sipes, 386 US 171 (1967) ..................................................................... 34, 35 Yoonessi v. State of New York, 289 AD2d 998 (4rth Dept. 2001) ......................... 34 iii STATUTES CPLR §§ 5602 (a), 5602 (a)(1)(i) .............................................................................. 1 N.Y. Gen. Ass'ns Law § 13. Action or proceeding against unincorporated association .......................................................................................................... 26, 42 N.Y. Lab. Law § 705. Representatives and elections .............................................. 26 TREATISE 53 NY Jur. 2d Employment Relations § 525 ........................................................... 34 iv DISCLOSURE STATEMENT PURSUANT TO RULE 500.1 (f) The statement is not required. The Plaintiff-Appellant is an individual and not a corporation or business entity. JURISDICTION This Court has jurisdiction pursuant to CPLR §§ 5602 (a), 5602 (a)(1)(i). This Appeal is from a Memorandum and Order of the Appellate Division Fourth Department reversing Supreme Court Justice James P. Murphy and dismissing the amended verified complaints in their entirety. [RA pg 1446] This Appeal is from a Memorandum and Order which finally determines the case. Leave to Appeal was granted by this Court [RA pg 1449] The issue of law presented for review on this Appeal was preserved in the Record and addressed during oral argument of Plaintiff-Appellant’s Counsel on March 15, 2012 before the Nisi Prius Court, Supreme Court Justice James P. Murphy, citing Madden v. Atkins, 4 NY2d 283 (1958). [RA at 41-50] In this regard, Plaintiff-Appellant’s Counsel argued that the rule set forth in Martin v. Curran, 303 NY 276 (1951) was inapplicable to the circumstances of the case, in that pleading and proof of unanimous ratification of all members of an unincorporated association labor union was not required, in an action alleging breach of duty of fair representation. [RA pgs 41,42,43]. The issue Page 1 of 42 was argued before the Appellate Division Fourth Department and preserved for review by this Court [ADbrf pgs 9-10, 37-38, 55-57] QUESTION PRESENTED Question Presented: Whether the Appellate Division Fourth Department committed an error of law in finding that unanimous ratification by all members of an unincorporated association as expressed by this Court in Martin v. Curran, 303 NY 276 (1951) is applicable to an unincorporated association labor organization (Union), requiring pleading and proof of unanimous ratification by the entire Union membership, of decisions made by the Union’s executive board, not to take a case of employment discipline and a case of employment termination to arbitration, in actions commenced against the labor organization for breach of duty of fair representation. Brief Answer: Yes. In Madden v. Atkins, 4 NY2d 283 (1958) this Court squarely rejected the argument of the labor organization that unanimous ratification was required and carved out an exception to unanimous ratification by all members of an unincorporated association labor organization in cases where elected union officials are delegated with authority to act on behalf of the union membership. STATEMENT OF THE CASE This case involves two breach of duty of fair representation and breach of contract (Collective Bargaining Agreement hereinafter “CBA”) lawsuits, that were Page 2 of 42 consolidated, brought by the Plaintiff-Appellant Eugene Palladino (hereinafter “Palladino”) against an unincorporated association labor union (Amalgamated Transit Union Local 580, hereinafter the “Union”) and an employer (CNY Centro, Inc., hereinafter “Centro”) for the improper imposition of discipline (Case 1) and eventual wrongful termination of employment (Case 2), for Centro’s breach of the CBA, and the Union’s failure to take either grievance filed in both cases to Arbitration. This Court is aware of the common law and legislative history of the virtual immunity from suit an unincorporated association enjoyed as a consequence of the unanimous ratification rule as set forth in Martin v. Curran, 303 NY 276 (1951). For the reasons set forth in Madden v. Atkins, 4 NY 283 (1958), however, it is respectfully submitted that the unanimous ratification rule has no application under circumstances where the elected officials (Executive Board) of an unincorporated association labor organization (Union), are delegated with authority pursuant to the Union’s Constitution and By-Laws, to act on behalf of the Union membership, in making decisions concerning the resolution of employment disputes, pursuant to the terms of a CBA, which sets forth a procedure for the resolution of grievances. Madden v. Atkins, 4 NY 283 (1958) is a union expulsion case. To apply a narrow construction, however, to the ruling of the Madden Court to circumstances limited to union expulsion (by the elected officials of a Union) is misplaced. This is Page 3 of 42 especially so where it is claimed that the Union breached its duty of fair representation, as a consequence of the conduct of its elected officials (executive board), undertaken in bad faith, who in the course of their exercise of authority under the CBL, abused their discretion in refusing to take an employment dispute, which resulted in the imposition of discipline, and termination from employment, to arbitration. [RA Amended Verified Complaint (Case 1 "Discipline") pgs 262- 277, 275; RA Amended Verified Complaint (Case 2 "Termination") pgs 295-319, 317] It amounts to a distinction (union expulsion versus breach of the duty of fair representation) without a difference (in each case, it is the misfeasance, malfeasance, and nonfeasance of elected union officials delegated with authority to act by the Union membership, that provides the basis for, and is the gravamen of, the cause of action). The incongruous result of the application of the unanimous ratification rule in a breach of duty of fair representation case is that a member of an unincorporated association labor organization essentially has a right (to bring suit for breach of duty of fair representation) without a remedy. In this regard, the application of the unanimous ratification rule in such a case amounts to nothing less than the imposition of a standard of impossibility in pleading and proof. That, however, it is respectfully submitted, is not, and should not be, the law of the State of New York. Page 4 of 42 The Amended Verified Complaint in action 2008-8650 (Case 1-Disciplne) [RA pgs 262, 273 ¶ 48] states the following: “Upon information and belief, on or about July 1, 2008, without cause, reason, justification, and as a blatant abuse of discretion, the Amalgamated Transit Union via correspondence dated July 1, 2008, informed the plaintiff that the Amalgamated Transit Union had made a decision not to proceed to arbitration in connection with the "call-in", misrepresentation charge. Upon information and belief, the decision whether or not to take this matter to arbitration was submitted to the executive board members of the Union for a vote based upon false and misleading information given to the union membership by the Union Business Agent, Charles Watson. [RA pg 972, Watson letter to Palladino dated July 1, 2008] The Amended Verified Complaint filed December 29, 2008 sets forth two (2) causes of action: First cause of action alleges breach of contract; Second cause of action alleges breach of duty of fair representation. [RA pgs 274-276] The Amended Verified Complaint in action 2009-0473 (Case 2 – Termination) [RA pg 310 ¶ 63] states the following: “Upon information and belief, on or about December 12, 2008, without cause, reason, justification, and as a blatant abuse of discretion, the Amalgamated Transit Union via correspondence dated December 12, 2008, informed the plaintiff that the Amalgamated Transit Union had made a decision not to proceed to arbitration with respect to the plaintiff’s wrongful Page 5 of 42 termination. Upon information and belief, the decision whether or not to take this matter to arbitration was submitted to the executive board members of the union for a vote based upon false and misleading information given to the union membership by the Union Business Agent, Charles Watson.” [see, RA pg 975, Watson letter to Palladino dated December 12, 2008] The Amended Verified Complaint dated March 12, 2009 sets forth four causes of action: First cause of action alleges breach of contract; Second cause of action alleges wrongful termination/wrongful discharge/retaliatory termination; Third cause of action alleges breach of duty of fair representation; Fourth cause of action alleges violation of 42 USC §1983. [RA pgs 315-319] Centro and the Union filed motions for summary judgment seeking dismissal of the amended verified complaints, predicated, inter alia, on Palladino’s failure to plead and inability to prove unanimous ratification by each and every member of the Union of the “Union’s” decisions not to take the discipline and termination matters to arbitration. Oral argument in support of the motions and Palladino’s opposition thereto was heard on March 15, 2012 before Supreme Court Justice James P. Murphy. In a Decision from the Bench Justice Murphy rejected the Union’s unanimous ratification argument, denied the Union’s motion to dismiss the breach of duty of fair representation causes of action, and also denied Centro’s motion to dismiss the breach of contract causes of action. [RA pgs 36-57] Page 6 of 42 The Union and Centro appealed Justice Murphy’s Decision and Order to the Appellate Division Fourth Department. By Memorandum and Order dated and filed December 21, 2012 the Appellate Division Fourth Department unanimously reversed Justice Murphy and dismissed the amended verified complaints in their entirety, as follows: "Memorandum: Defendant's appeal from an order that granted only in part their respective motions seeking summary judgment dismissing the amended complaint against them. We agree with defendant's that Supreme Court should have granted their motions in their entirety. Defendants Amalgamated Transit Union, Local 580 (Union) and Charles Watson, as business agent of the Union, contend that the Union is a voluntary unincorporated association and that plaintiff has failed even to plead the Union's conduct was authorized or ratified by the entire membership of the Association. We agree (see Martin v. Curran, 303 NY 276, 282; Zanghi v. Laborers’ Intl. Union of N. Am., AFL-CIO, 8 AD3d 1033, 1034, lv. denied 4 NY3d 703). Thus, we further agree with those defendants that plaintiff's contention that the Union breached its duty of fair representation is "fatally defective". (Walsh v. Torres-Lynch, 266 Ad2d 817, 818). In light of our conclusion we do not address the defendants remaining contentions." [RA pg 1446] By Order dated and entered March 21, 2013, this Court granted Palladino’s Motion for leave to appeal to the Court of Appeals. [RA pg1449] Page 7 of 42 STATEMENT OF FACTS A. Preliminary Matters (CBA Provisions – Centro Rules and Regulations – Union Constitution and By-Laws) i. CBA Provisions. CBA Article II Grievances § 2.07 states the following in pertinent part: 2.07 (a) “The departmental supervisor or Employee/Union Business Agent who receives the first submission of a written grievance shall answer, in writing, to each such grievance within 10 calendar days after its receipt”. (b) “If the grievance is not settled by the written answer of the departmental supervisor or the Employee/Union Business Agent, in (a) above, the grievance may, within 10 calendar days of receipt of the written answer in (a) above, resubmitted grievance to the Grievance Review Board (GRB)” “The GRB shall function as follows: (1) Membership on the GRB shall consist of five individuals: two appointed by the Union, two appointed by the Company, and a mutually agreed-upon Mediator/Arbitrator and any costs associated with the Mediator/Arbitrator will be split among the parties”. [RA pg 71] CBA Article II Grievances § 2.07 (4) states the following: “GRB decisions shall be binding on all parties, the board shall not have any authority to add to, delete from, or in any way alter the collective bargaining agreement”. [RA pg 72] Page 8 of 42 CBA Article II Grievances § 2.09 states: “In the event a mediator cannot be made available as outlined in 2.07 (b) (1) above, the grievance process, following 2.07 (a) will revert to the procedure defined in Article 2.08.” [RA pg 72] CBA Article II Grievances § 2.08 states, “In cases where the grievance involves the discharge of an employee, or a violation of the company's substance abuse policy, the following process will be in effect after 2.07 (a) above.” CBA Section 2.08 thereafter goes on to explain the grievance process, first step, second step, and submission of the matter to Arbitration. [RA pg 72] CBA Article III Charge § 3.04 Suspension/Removal From Service states "(a) in the event of a serious or repeated rule violation, and a substantiated investigation of same, an employee may be suspended for a period not to exceed two (2) business days (Monday through Friday). No further discipline or suspension will be imposed upon the employee until hearing has been held between the employee, the employer, and a Union representative.” [RA pg 73] CBA Article III Charge § 3.07 Discipline states "(a) No disciplinary action shall be rendered, nor will charges be included in the employee's personnel file and/or record without a substantiated investigation.” CBA section 3.07 Discipline states “(b) for the purpose of imposing discipline or termination, review of the employees record shall not exceed the past eighteen (18) months of work, unless mutually agreed-upon, or unless this is not consistent with statutory laws.” [RA pg 74] Page 9 of 42 CBA Article III Charge § 3.07 states "(f) the Employer reserves the right to discipline and/or terminate for excessive absenteeism. It is understood that this is subject to the grievance procedure. Effective upon signing this agreement, the disciplinary code of the Companies Policy on Attendance is amended to prescribe termination of employment following twelve (12) instances of absenteeism in a twelve (12) month period.” [RA pg 75] CBA Article III Charge § 3.07 states "(g) When an employee’s eighteen (18) month general record and/or general performance is not satisfactory to the Employer and the employee is entering a possible probationary period, the details of the case will be reviewed with the Union before disciplinary action is taken.” [RA pg 75] ii. Centro Rules and Regulations. Centro Rules and Regulations (Plaintiff’s Exhibits Volume 1- Exhibit A P3) page 13 paragraph 14 states the following "14. Misrepresentation - If an employee willfully makes a false statement or representation for the purpose of obtaining or influencing the determination of any benefit, payment or preferential treatment, an employee has committed a deliberate act with the intent to defraud..." misrepresentation is a level (I) offense. [RA pg 907, 914] Centro Rules and Regulations provide for graduated discipline. The "suggested code of discipline" is found at page 40. The suggested discipline for a level (E) Page 10 of 42 offense is as follows: 1st warning, 2nd warning, 3rd 1 to 3 days, 4rth 3 to 5 days & letter, 5th discharge. The suggested code of discipline for a level (I) offense is as follows: "All. To be determined by circumstances". [RA pg 907, 928] iii. Union Constitution and By-Laws. The Constitution and By-Laws (hereinafter “CBL”) of the Amalgamated Transit Union Local 580 (Plaintiff’s Exhibits Volume 1 Exhibit A P13) states OBJECTIVES "The objectives of the Local Union shall be: To maintain and advance the position of our members and the Local Union, and to obtain by any legal means, fair economic compensation for our labors. To protect our members from broken contracts, unfair rules and unlawful discharge. To encourage participation of all members of this local Union in securing these objectives." [RA pg 956] CBL ARTICLE III REGULAR AND SPECIAL MEETINGS states the following: "Section I. regular meetings of this Local Union shall be held for the membership of Local Union 580 A.T.U. , employed by CNYRTA, on the second (2nd) Wednesday of each month at 11:00 A.M. and 7:30 P.M., and for the members employed at Syracuse & Oswego Coach Lines, Inc. Local 580 on the fourth Wednesday of each month at 7:00 P.M. Ten (10) members in good standing shall constitute a quorum for CNYRTA employee members meetings and five (5) Page 11 of 42 members in good standing for Syracuse & Oswego Coach Lines, Inc. employee members meetings.”[RA pg 958] CBL ARTICLE IV OFFICERS - TERMS OF OFFICE states the following: "Section I. The Officers of this Local Union shall consist of a President, Vice- President, Recording Secretary, Business Agent, Financial Secretary, Treasurer, the last three (3), to be combined, a Warden and an Executive Board of four (4) members, one of which shall be selected by and from three (sic) Mechanical Department, and one of which shall be selected by and from Syracuse & Oswego Coach Lines, Inc. [RA pg 959] Section II. All Officers shall be elected by the plurality voting system and by their own consent.” CBL ARTICLE V DUTIES OF THE PRESIDENT states in pertinent part: "Section III. The President shall be an ex-officio member of the Executive Board and Chairman thereof.” [RA pg 960] CBL ARTICLE XII DUTIES OF THE EXECUTIVE BOARD states in pertinent part: “Section I. It shall be the duty of the Executive Board to supervise and direct the management of the Local Union. Section II. The Executive board shall constitute the "Grievance Committee Board" and shall investigate all disputes and questions between members of the Local Union and the Company. Section III. The Executive Board shall constitute the "Arbitration Review Board" and shall by a Page 12 of 42 majority vote may decide whether or not a grievance shall be taken to the arbitration step of the Grievance procedure.” [RA pg 962] CBL Article XXVI states the following: "Section I: A majority of legal votes of members present and entitled to vote in a Regular or Special meeting shall decide all questions in this Local Union. Section II: A majority of the legal votes of members present at a Regular or Special meeting shall constitute the same as if a full membership were present and had voted. Section III: In the event no Regular Monthly Meeting is held for lack of a quorum, all actions of the Executive Board which would have reported to the membership at that meeting shall become final and binding upon the local Union without further action by the membership. [RA pg 964, 965] B. Background The Plaintifff- Appellant Eugene Palladino (hereinafter “Palladino”) was a member of the Union and had 24 years and 11 months of service as a bus driver when the decision was made by Centro on September 16, 2008, to terminate his employment. One year earlier, in September 2007, during the “sign up”, Palladino’s supervisor, KC Martin (hereinafter "Martin") questioned Palladino's claimed entitlement to five weeks of vacation signed for. Palladino advised Martin that he was entitled to the vacation based upon a years of service date of November 1, 1983. [RA Page 13 of 42 1077,1078. Exh.P62 (Pension Benefit Calculation) [RA 840, ¶ 9.01] RA 842, ¶ 9.06] [RA 887, ¶ 12.06 (Exh.P2 (CBA)] Martin’s actions thereafter precipitated a heated debate and disagreement concerning Palladino’s claim to vacation time and pension benefits. On October 9, 2007 Palladino was taken out of service (essentially suspended), without pay for five days, for calling in three hours before his scheduled report time on October 5, 2007. It was Palladino’s intent to take an unexcused absence without pay. Palladino was suspended for five days for allegedly having advised the dispatcher that he “had been called out of town the night before” and that this was a “lie”. Palladino has maintained from the outset, however, that whether he was called out of town the night before or not, it is completely irrelevant to the intent of his phone call, which was simply to advise Centro that he would not be in to work on October 5, 2007. [RA pg 993, Exh.P33 (CD recording & transcripts of 04.15.08 Meeting) Pg. 33, Line(s) 16 thru 18] [RA pg 993, Exh.P33 (CD recording & transcripts of 04.15.08 Meeting) Pg. 44, Line(s) 16 thru 20] [RA pg 993, Exh.P33 (CD recording & transcripts of 04.15.08 Meeting) Pg. 45, Line(s) 1 thru 16] Palladino was eventually charged with “misrepresentation” for the call-in. [RA pg 1235, 1236, Charge re: bus operator E. Palladino-October 5, 2007 Incident] Palladino’s removal from service was instigated by Martin. Centro claimed that Palladino was not truthful about the reason why he was not going to report for Page 14 of 42 work. He was taken out of service and suspended prior to a substantiated investigation. [RA pg 930, Exh.P4 (10.09.07 Meeting), Pg.4, Line(s) 7 thru 9] [RA pg 930, Exh.P4 (10.09.07 Meeting), Pg. 6, Line(s) 19 & 20] This was a clear violation of the CBA. [RA pg 876, ¶ 3.04 (a)] [RA pg 877, ¶ 3.07(a)] [RA pg 877 ¶ 3.07 (c)] [RA pg 878, ¶ 3.07 (g)]. It is claimed that the discipline imposed was in violation of the terms of the CBA and Centro’s Rules and Regulations. By letter dated July 1, 2008 the Union advised Palladino that the Union had decided not to take the matter to Arbitration. [RA pg 972] Three months earlier, on April 2, 2008 Palladino had commenced a Declaratory Judgment Action against Centro for a declaration of his rights under a "Memorandum of Agreement" dated January 6, 1987. Palladino claimed a years of service date of November 1, 1983 for calculation of benefits under the CBA. [RA pg 1077, 1078.Exh.P62 (Pension Benefit Calculation) [RA pg 1081, Exh.P63 (Employment Information)] The action was dismissed by Supreme Court Justice James P. Murphy by Decision dated September 15, 2008 for Palladino’s alleged failure to exhaust administrative remedies under the CBA. The dismissal was appealed to the Appellate Division Fourth Department. The Appellate Division reversed Justice Murphy holding that the “Memorandum of Agreement” constituted a contract independent of the CBA. Palladino thereafter brought a Page 15 of 42 motion for summary judgment which was granted by Justice Murphy thereby establishing a years of service date of November 1, 1983. [RA pg 1269] On July 30, 2008 lead supervisor Chuck Acevedo wrote Palladino a ticket for failure to report a bus delay, in connection with the tripper that he had been operating at Syracuse University. Chuck Acevedo initially refused to write this ticket.[RA pg 712, Exh.R (Violation Ticket dated 07.30.08)] In the notes provided by Centro, Chuck Acevedo indicated that the investigation had been initiated by KC Martin, and that Chuck Acevedo told KC Martin that he did not want to write the ticket. Chuck Acevedo only signed the ticket when he was ordered to by Joseph DeGray [ RA Plaintiff’s Exhibits Vol. 1 P35, P56, P57; see also Acevedo EBT Transcript pg 76-84] It is clear that Chuck Acevedo did not want to get involved. On August 19, 2008, Palladino arrived at work at 11:20 a.m. At 11:50 a.m. he reported for work and proceeded to the call-a-bus that he had been assigned to operate that day. When he went to locate the bus it was not parked in its usual spot. [RA pg 1238, Exh.U7 (Palladino’s Statement of Fact dated 08.21.08) [RA pg 1012, Exh.P45 (CD recording & transcript of 09.02.08 Meeting)] [RA pg 1013, Exh.46 (CD recording & transcript of 09.04.08 Meeting)] Palladino was scheduled to depart Centro at 12 noon. Palladino’s cell phone record (Plaintiff Exhibits Vol. 1 P25) indicates that he called the Call-a-Bus dispatcher, Zelma Oropeza, at 11:58 a.m. and inquired about the location of Call-of-Bus No. Page 16 of 42 2593. The bus had been moved from its usual spot. Palladino had not been notified that the Bus was moved nor where the Bus was moved to. Zelma Oropeza advised Palladino that his Bus was parked outside door number one (1). This is the door where the Buses pull into the garage to park. Centro personnel admitted during their depositions that this is not someplace where someone would normally look to find the Bus. Unbeknownst to Palladino at the time, at 11:33 a.m., 17 minutes before Palladino was to report for work, someone at Centro had moved the Bus. [RA pg 996, pg 1440 Exh P36, pg 1441 Exh. P48 Bus Video] No one at Centro to this day has been able to provide any information as to who moved Bus 2593 or why the Bus was moved. Lettie Cardona testified during her deposition that she had planned on doing a line check on Palladino on August 19, 2008. [RA pg 1442 EBT Transcript Cardona pg. 17] Palladino went outside door number one and located Bus 2593. Because the Bus had been moved and he was already running late he was not able to do a complete pre-trip inspection. Within an hour he was back on schedule. He did not have any equipment problems. The wheelchair lift worked properly. And no complaints were filed by anyone concerning Palladino’s service that day. [RA 687, 1442 EBT Transcript Cardona pg. 37] Page 17 of 42 Unbeknownst to Palladino, the Call-a-Bus supervisor Lettie Cardona, had written a ticket charging him with a "Late Pull-Out Unnecessary” accusing him of having been in the driver’s room at 12:02 p.m. on August 19, 2008 when his scheduled pullout time was 12 noon. [RA pg 951] On August 20, 2008 when Palladino arrived at work he was scheduled to do a "Tripper" at Syracuse University. While he was on the tripper he received a radio transmission to report to Nordheim’s office as soon as he returned to Centro. [RA pg 1442 EBT Transcript Acevedo pg. 50] Upon Palladino’s arrival at Nordheim's office on August 20, 2008, he informed him that he was being removed from service pending an investigation into the reasons for the "late pull out". At that time he was immediately taken out of service. He did not have any union representation prior to being taken out of service. [RA pgs 1134, 1136] When Palladino arrived home he contacted Union executive board member Dominick LoSurdo and advised him what had happened. Union Business Agent Watson and Union President Burke were in Toronto at a convention. LoSurdo and Aiello met with Nordheim on the afternoon of August 20, 2008 to view the Bus video of call Bus 2593. [RA pg 1442 EBT Aiello pg. 18] On September 2, 2008, Palladino provided Nordheim with a copy of his cell phone records and a copy of a statement that he had obtained from a driver named Page 18 of 42 Ken Cameron. He provided his cell phone records as proof that he could not have been in the driver’s room at 12:02 as claimed by Lettie Cardona. Palladino's cell phone records indicate that he called the Call-a-Bus dispatcher at 11:58 while he was in the garage attempting to locate the Bus. He provided the statement Ken Cameron as proof from an eyewitness that he was not in the driver’s room at 12:02 p.m. All these things were ignored by Centro and the Union. [RA pg 949 Exh. P15, pg 976, 1012 Exh. P45, 1437 Exh. P4] On September 2, 2008 Watson requested a copy of the garage surveillance video. On September 3, 2008, Nordheim sent an e-mail to Waverley Faison requesting a copy of the garage surveillance video. Waverly Faison returned an e-mail to Nordheim on September 3, 2008 informing him that the garage surveillance video only went as far back as August 20, 2008. Consequently, the Union had waited too long to request the garage surveillance video due to the fact that it had been written over at the time it was requested. [RA pg 1012 Exh. P45] Call-a- Bus 2593 was equipped with cameras. Nordheim testified at his deposition that he established the times on the video by referencing the cell phone record Palladino had provided and comparing it with a cell phone call that he made while working that had been recorded by the video camera on Bus 2593. [RA 1442 EBT Norheim 10.14.11 pg 27) Page 19 of 42 Nordheim testified that the time depicted on the video recording, based upon his calculations, is off by approximately 2 hours and 54 minutes. Consequently, the video recording clearly shows Bus 2593 being moved at 11:33 a.m. and parked outside door number one. There are five different cameras on the Bus. Despite the fact that there are five different cameras on the Bus, the person moving the Bus does not appear on the videotape. [RA 1442 EBT Nordheim 10.14.11 pg 27, 28] The video clearly shows Palladino on the Bus at 12:02 p.m. There is a one minute and ten second tape delay from the time the Bus is started until the time the video cameras begin recording. Consequently the video puts Palladino on the Bus at 12:01 p.m. [RA pg 1142 EBT Aeillo pg 137] The video shows that Palladino left Centro at 12:04 p.m. the video shows that he called “in service” at 12:04 p.m. in accordance with Centro policy. Palladino drove directly to Thompson Road from the Bus garage. The Bus video shows that he was in road construction on Thomson Road and delayed approximately 4 minutes due to the traffic congestion occasioned by the roadwork. [RA pgs 996, 1440, 1441, Bus Video P36, P48] The Bus video shows that when Palladino reached the intersection of James Street and Manlius Center Road he radioed the dispatcher and stated the following "I'm running about 15 minutes down pause delayed due to construction on Thomson Road.” Palladino did not tell the dispatcher that he was running 15 minutes late Page 20 of 42 because he had been delayed for 15 minutes as a result of construction on Thomson Road. [RA pg 996, 1440, 1441, Bus Video P36, P48] On September 16, 2008, Palladino’s employment was terminated by Centro. The principal justification for his termination was alleged "misrepresentation" concerning his radio transmission at the intersection of James Street and Manlius Road. [RA pgs 1146, 1147, 1148, P90) On October 7, 2008, Palladino filed a first step grievance with respect to his termination. [RA pg 756] On October 15, 2008 Centro denied the first step grievance. [RA pg 759] On October 23, 2008 Palladino filed a second step grievance with respect to his termination. On November 3, 2008 Centro denied the grievance. On December 12, 2008, the Union via correspondence dated December 12, 2008, informed Palladino the Union had made a decision not to proceed to arbitration with respect to his termination. [RA pg 975 Exh. P24] Palladino was taken out of service and terminated prior to a substantiated investigation. This was a clear violation of the CBA. [RA 876, ¶ 3.04 (a)] [RA 877, ¶ 3.07(a)] [RA 877, ¶ 3.07 (c) [RA 878, ¶ 3.07 (g)] [RA 1134, Exh.P83] [RA 1135, Exh.P84] [RA 1136, Exh.P85] [RA 1137, Exh.P86] [RA 1138, Exh.P87] It is claimed that the termination was in violation of the CBA and Centro’s Rules and Page 21 of 42 Regulations. By letter dated December 12, 2008 the Union informed Palladino that the Union had decided not to take the matter to Arbitration. [RA 975] The terms and provisions of the CBA and Centro Rules and Regulations claimed to have been violated by Centro (which were not challenged nor enforced by the Union) include the following: Provisions of contract violated include: Article I; section 1.05; 1.06; Article II; Article III; section 3.02 (A); (B) (1) (2); (C); (D); Article III; section 3.04(A); Article III; section 3.05(A); (A)(1): (A)(2); (C); Article III; section 3.07 (A); (C); (D); (E); (G.); Articles VI; section 6.02 (B); Rules and Regulations violated include, Page 13; paragraph 14; Page 15; paragraph(s) (1); (2); (3); (4); (5); & (6); Page 16; paragraph (7); Page 20; paragraph (18); Page 21; paragraph (21) (B); Page 39; paragraph (2). [RA pg 310 ¶ 65] On September 18, 2008 Palladino was 52 years of age. Palladino was officially terminated by letter dated September 18, 2008, three days after Justice Murphy’s Decision dismissing the Declaratory Judgment Action. He was terminated 45 days before reaching 25 years of service. Early retirement at Centro was predicated upon two things, 25 years of service, and having reached the age of 55.[RA 886, ¶ 12.02 Exh.P2 (CBA)] Had Palladino not been terminated prior to accumulating 25 years of service he would have been eligible for early retirement at the age of 55. He would have been entitled to receive pension benefits. Most significantly, however, both he and his wife would have been entitled to the receipt of lifetime Page 22 of 42 health insurance benefits.[RA 1031,¶ 11.08(d), RA 1032,¶ 11.11(c) Exh.P59 (Employee Benefits Summary Booklet)] Because Palladino was terminated 45 days prior to accumulating 25 years of service, neither Palladino nor his wife, are entitled to lifetime health insurance benefits. Because Palladino was terminated, he will not be able to start collecting pension benefits until he is 62 years of age. [RA pg 886,¶ 12.02. Exh.P2 (CBA)] None of the offenses that Palladino was charged with, in connection with the August 19, 2008 "Unnecessary Delay Late Pullout” incident standing alone, were terminable offenses. [RA 686, 907, 928] Despite having a disciplinary record devoid of any allegations of misconduct warranting, suspension or termination, [RA pg 953 Exh. P18] Palladino, with twenty-four years and 11 months of service, was terminated by Centro within five months of the commencement of the Declaratory Judgment Action. C. Salient Facts During the depositions conducted in this case Union executive board members admitted that there are numerous employees of Centro who have committed offenses far more egregious, than anything Palladino was ever accused of or charged with, who were not terminated for their conduct. [RA pg 1442, EBT 11.18.11, pgs 80-83] Page 23 of 42 In this regard, those employees include the following members of the Union Executive Board who voted not to take either of Palladino's grievances to arbitration: (1) (charged with misuse of company property and suspended from duties as dispatcher but allowed to continue driving) for bringing a female, to whom he was not married, onto company property at night, where he was found alone with her in a training classroom [RA pg 1442; EBT 9.9.11 pg 14-16]. (This offense was subject to immediate termination under the Rules and Regulations) [RA pg 928]; (2) Union Executive Board Member charged with misuse of company property for driving a Bus home that he was supposed to be conducting a road test on. [RA pg 1442, EBT 11.18.11 pg 78, 79] (This charge was subject to immediate termination under the Rules and Regulations) [RA 928]; (3) Union Executive Board Member (charged with leaving his Bus filled with high school students unattended while he went into a Denny's Restaurant to use the bathroom); [RA pg 1442, EBT 10.5.11 pg 69]. Union President Tyrone Burke testified the executive board voted not to take the grievances to arbitration and that the vote was unanimous. [RA pg 1442 EBT Transcript pg. 88 Ln. 1-5]. Union president Tyrone Burke testified that the executive board did not submit the decision as to whether or not take either Page 24 of 42 grievance to arbitration because it was not something the executive board felt it was required to do [RA 1442, EBT transcript pgs 55-56] Union Executive Board Member Michael Aiello testified that the Executive Board Members voted not to take the grievances to arbitration and that the executive board vote was unanimous. [RA EBT Transcript pg. 17 Ln. 25] The Grievance, regarding the October 5, 2007 “call-in” - “misrepresentation” charge for each discipline was imposed, was submitted to Centro on October 30, 2007 [RA pg 245] The letter from Union business agent Charles Watson to Palladino dated July 1, 2008 clearly states that the "Union" made a decision not to take the discipline matter to arbitration. [RA pg 972] The Grievance, filed regarding the August 19, 2008 "unnecessary delay - late pullout" charge which morphed into a misrepresentation charge, leading to termination from employment, was submitted to Centro on October 7, 2008. [RA pg 254] The letter from Union business agent Charles Watson to Palladino dated December 12, 2008 clearly states that the “Union” made a decision not to take the termination matter to arbitration. [RA pg 975] Page 25 of 42 ARGUMENT POINT I. THE APPELLATE DIVISION FOURTH DEPARTMENT COMMITTED REVERSIBLE ERROR OF LAW IN FINDING THAT PLEADING AND PROOF OF UNANIMOUS RATIFICATION BY MEMBERS OF AN UNINCORPORATED ASSOCIATION AS EXPRESSED BY THIS COURT IN MARTIN V. CURRAN, 303 NY 276 (1951), WAS APPLICABLE TO A LABOR ORGANIZATION IN AN ACTION COMMENCED AGAINST A LABOR ORGANIZATION FOR BREACH OF DUTY OF FAIR REPRESENTATION RATHER THAN THE EXCEPTION TO UNANIMOUS RATIFICATION CARVED OUT BY THIS COURT IN MADDEN V. ATKINS, 4 NY2D 283 (1958) WHERE ELECTED UNION OFFICIALS ARE DEALAGATED WITH AUTHORITY TO ACT ON BEHALF OF THE UNION MEMBERSHIP. A. General Associations Law § 13. N.Y. Gen. Assn’s Law § 13. Action or proceeding against unincorporated association. An 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 service of summons, subpoena or other legal process of any court upon the president, vice president, treasurer, assistant treasurer, secretary, assistant secretary, or business agent, in his capacity as such, shall constitute service upon a labor organization. Such service shall be made on such individuals in the manner provided by law for the service of a summons on a natural person. B. NY Labor Law § 705 N.Y. Lab. Law § 705. Representatives and elections Page 26 of 42 1. Representatives designated by the board after a showing of majority interest or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes or by the majority of the employees voting in an election conducted pursuant to this section shall be the exclusive representatives of all the employees in the appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, that employees, directly or through representatives, shall have the right at any time to present grievances to their employer. C. The Dissent in Martin v. Curran. Martin was decided by a sharply divided 4-3 Court. The dissenting opinion of Judge Conway contains a scholarly analysis of the unanimous ratification rule and the reasons why its application in circumstances involving an unincorporated association Union has no application. The following is an excerpt from the dissenting opinion of Judge Conway that is directly applicable to the rule of law at issue on this appeal: “This is a libel action. Plaintiff, who is president of the National Organization of Masters, Mates and Pilots of America, affiliated with the American Federation of Labor, alleges that he was libeled in articles in The Pilot the official weekly newspaper published by National Maritime Union, affiliated with the Congress of Industrial Organizations (C.I.O.), an unincorporated association. Plaintiff joined as defendants officers of the National Maritime Union (hereinafter called NMU) in their individual capacities and in their representative capacities as officers of NMU and as those constituting the editorial board of The Pilot who published it. He also joined as defendants the editor of The Pilot (who was not an officer of NMU) and the corporation which printed that newspaper. The Appellate Division has granted leave to appeal to this court on a certified question reading as follows: ‘Was the order of this court granting the motion to dismiss the complaint as against the officers of the National Maritime Union in Page 27 of 42 their representative capacities and granting the motion to strike out paragraphs 13 and 15 of the complaint as against the other defendants, properly made?‘ The principal argument advanced against the sufficiency of the plaintiff's complaint is that it fails to allege expressly that the members of NMU ever authorized, participated in or ratified the alleged libelous statements. It was always fundamental in the jurisprudence of England and America that the common law was flexible, self-developing and all embracing so that all actual situations could be adjudicated. (Citations omitted)… As is well said in the Introductory Note (1937) to the American Law Institute's Restatement of the Law of Restitution (pp. 522-523): ‘Actions of tort are * * * based primarily upon wrongdoing and ordinarily, through the payment of money, compensate the injured person for the harm suffered by him as a result of the wrongful conduct, irrespective of the receipt of anything by the defendant.‘ To derogate from the common law the Legislature must declare its purpose so to do directly and substantively and then such statement must be strictly construed…Section 13 of the General Associations Law is an administrative and adjective statute. It was enacted to convenience a plaintiff, such as we have here, by enabling him to sue and more promptly reach the property of the association for the satisfaction of any judgment he may recover, without naming as defendants hundreds or even thousands of members of an association -- in this instance no doubt employed on ships scattered about the world. He is not bound to sue the officer, for section 17 provides that he may bring action against all the members of the association. (Citation Omitted) At common law an unincorporated association could neither sue nor be sued in its own name. It had to sue in the names of all the associates as parties plaintiff or when sued, all the members had to be made parties defendant. (Ctation Omitted) The members could neither sue nor be sued through their officers. (Ctation Omitted) Then were *290 enacted statutes commencing with chapter 258 of the Laws of 1849 and chapter 455 of the Laws of 1851 which eventuated as matters of convenience and expediency in General Associations Law. That was the purpose of section 13. It was not intended to affect or derogate from the common law of tort, had no such effect and a court is not free to hold that there was such derogation accomplished by indirection and without expressed intention... This motion involves only the construction of a pleading and a determination whether anyone may be brought to the bar of justice for publishing libels affecting the plaintiff in a newspaper alleged in paragraph 11 of the complaint to be owned and published by NMU, an unincorporated association... Under United Mine Workers v. Coronado Coal Co. (259 U. S. 344) it has been held that trades-unions are suable as distinct entities in tort and that the Federal Page 28 of 42 statutes have changed the common-law rule of nonsuability of such associations. The Supreme Court of the United States speaking through Mr. Chief Justice TAFT said (pp. 385-388): ‘Undoubtedly at common law, an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the names of its members, and their liability had to be enforced against each member. Pickett v. Walsh, 192 Mass. 572; Karges Furniture Co. v. Amalgamated Woodworkers Local Union, 165 Ind. 421; Baskins v. United Mine Workers of America, 234 S. W. 464. But the growth and necessities of these great labor organizations have brought affirmative legal recognition of their existence and usefulness and provisions for their protection, which their members have found necessary. * * * More than this, equitable procedure adapting itself to modern needs has grown to recognize the need of representation by one *293 person of many, too numerous to sue or to be sued (Story Equity Pleadings, 8th ed., §§ 94, 97; St. Germain v. Bakery, &c., Union, 97 Wash. 282; Branson v. Industrial Workers of the World, 30 Nev. 270; Barnes & Co. v. Chicago Typographical Union, 232 Ill. 402); and this has had its influence upon the law side of litigation, so that, out of the very necessities of the existing conditions and the utter impossibility of doing justice otherwise, the suable character of such an organization as this has come to be recognized in some jurisdictions, and many suits for and against labor unions are reported in which no question has been raised as to the right to treat them in their closely united action and functions as artificial persons capable of suing and being sued... Let us now turn to the Federal as well as our State court decisions respecting the responsibility of trades-unions for tort. As noted in appellant's brief, trades-unions, since 1902, when we decided National Protective Assn. v. Cumming (170 N. Y. 315) have played an increasingly important role in modern life. Recognized as juristic entities under both Federal and State statutes for many purposes (see United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 385-389, supra; Kirkman v. Westchester Newspapers, Inc., 287 N.Y. 373, supra; United States v. White, 322 U. S. 694, 703-704) they have frequently thousands of members and have been subjected to and paid fines and damages out of their treasuries. (International Union, United Mine Workers v. United States, 177 F. 2d 29, certiorari denied 338 U. S. 871; United States v. United Mine Workers, 330 U. S. 258.) Trades-unions are no longer mere unincorporated associations, as that term was formerly understood. As a practical matter, it has been held that labor unions have as perpetual an existence as corporations. (United States v. White, supra, p. 701.) They are not sporadic or transitory associations projecting *294 ‘spasmodic moral Page 29 of 42 movements‘ as in the case of McCabe v. Goodfellow (133 N.Y. 89, 95 [1892], supra). Recent decisions emphasize that the realities of present day trades-union organization require a recognition of its unified character. (See Kirkman v. Westchester Newspapers, Inc., supra.) We there held that a union was a legal entity to the extent necessary to permit suits for libel to be brought on behalf of the union by its officers... On the basis of our holding there that an unincorporated trades- union is an entity which may sue under section 12 of the General Associations Law for a libel published against its officers, it follows by a parity of reasoning and as a necessary corollary that under section 13, it may be sued for a libel published by it as an entity in its official publication against a union officer charging him with wrongdoing. Just as the membership as a whole in an unincorporated association has the right as plaintiff to protect the good name and reputation of its union and to act as an entity, so as an entity it must respond in damages for libel as defendant when it has published a newspaper which libels the good name and reputation of a union officer of another union whose members have the same right of protection for the good name and reputation of their union. The United States Court of Appeals, District of Columbia, held in Busby v. Electric Utilities Employees Union (147 F. 2d 865 [1945]) that even without enabling legislation, a trades-union could sue and be sued in its common name and its treasury funds subjected to execution. After remand (in 323 U. S. 72), in which the United States Supreme Court held that the question of whether an unincorporated trades-union is without capacity to sue or be sued in its own name, is one which must *295 first be decided under local law, the Court of Appeals quoted at length from the testimony of the general counsel of the American Federation of Labor before the Judiciary Committee of the House of Representatives in relation to rule 17 (b) of the Rules of Civil Procedure (U. S. Code, tit. 28), authorizing suits by and against unincorporated associations in the common name. A portion of his testimony, so quoted, is as follows (pp. 866-867): ‘'For many years there was holy horror on the part of labor organizations to the inclusion of a provision of this kind. They did not wish to be in the position of being sued, or to sue in their common name. They objected to that. That arose out of experience, just as a child burns its fingers and learns its lesson. * * * ‘’* * * In the last dozen years a change has taken place in this attitude on the part of labor. We do not object, in a sense, and under proper circumstances, to being sued in our common name, or to suing in our common name. Not that we like it, but we do not object. Because the entire history of the law has changed -- and the Page 30 of 42 relation of labor unions to litigation has changed, and to getting into court and getting out of court. Where at one time we were defendants, and only [in] injunction cases and took our lickings quite frequently, today, in many cases we are both plaintiffs and defendants. Your entire enforcement of the Wagner Act is based upon the vehicle of injunction, and must be used by labor unions; the enforcement of the National Labor Relations Board Act is based upon injunctive decrees, and in those cases where we disagree with employers we have to go before the appellate court and ask for injunctive decrees. You will notice that in the proposed wage-and-hour bill enforcement is by injunctive decree. ‘'Since 1932, or since the passage of the Norris-LaGuardia Act [29 U. S. C. A. § 101 et seq.] our attitude toward this suability has changed entirely. Today we have not the fear that we did have in the past. * * * So we are not opposed to being sued in proper cases, because we too have to sue in proper cases to obtain our rights. ‘'Incidentally, it was stated by someone here yesterday that most States do have laws that permit labor organizations to be sued in their proper names or common names, and also to bring *296 suits in law. That is so. We have had, as a result of disputes between the C. I. O. and the A. F. of L., to go into court and seek relief in respect to the funds in one organization or another. We can only do so properly in our own common name. So today labor is not objecting to being sued in its common name.’‘ Later in its opinion the court said (p. 868): ‘It would be unthinkable that in such circumstances the union itself should not be answerable for its contracts or its torts made or inflicted by one of them in the common business.‘ So the general counsel whose language was thus quoted in the Busby case (supra) was a common-law lawyer who was merely restating the principle that the common law is a living organism which moves in response to the fuller development of man and of the State and nation so as to include, in its flexibility, all changes in their surroundings, growth and interdependence. As Lord COLERIDGE said of those who declare the common law in Lumley v. Gye (2 El. & Bl. 216, 267), ‘Judges are not necessarily to be ignorant in Court of what everybody else, and they themselves out of Court, are familiar with * * *.‘ Since this is an action in tort, the cases that deal with the contractual responsibility of membership associations are not apposite. Knowledge of the limited liability of the association's members and the limited authority of the association's agent in entering into the specific contract is chargeable to the third party. Nor in our opinion are the numerous cases having to do with wrongful expulsion and damages therefor to a wronged member. Those have to do with the internal affairs of the association. Those cases which have held trades-unions not liable for the violence Page 31 of 42 of individual members are analogous to cases where an employee of a corporation has gone outside of his *297 employment and without regard to his service and, acting maliciously, has committed an assault. The following cases, in principle, all support the view that an unincorporated union, as an entity, may be held responsible for libel. (National Variety Artists, Inc., v. Mosconi, 169 Misc. 982; Pandolfo v. Bank of Benson, 273 F. 48, 50; Tonelli v. Osman, 54 N. Y. S. 2d 793; Peterson v. Cleaver, 105 Neb. 438.) In the Pandolfo case, the Circuit Court of Appeals, Ninth Circuit, in holding an unincorporated association of bankers liable for a defamatory letter published in one of its books said: ‘The members of an unincorporated association are liable in their collective capacity for tort (5 C. J. 1369; 25 R. C. L. 67), and they are answerable for damages for libel published by their agent with their authority while the agent is acting within the scope of his employment, just as a corporation is liable under like circumstances [citations].‘ Thus it matters not whether we hold that the members of NMU are the owners and publishers of The Pilot and jointly or severally liable for libelous articles published therein or whether we hold the entity the unincorporated association trades-union NMU to be publisher and owner of The Pilot with consequent responsibility for libel. In either or both views, the complaint states a cause of action.” (Martin, supra at 283, 289-300) D. The Madden v. Atkins exception to the unanimous ratification rule. It is respectfully submitted, that the proposition advanced by the Union under the facts of this case is contrary to the holding and rationale of this Court in Madden v. Atkins, 4 NY2d 283 (1958). Madden is a union expulsion case. It is respectfully submitted, however, that it is not the fact that it is a union expulsion case that is critical to an analysis of the holding in that case, but that the union raised the unanimous ratification rule set forth by this Court in Martin v. Curran, 303 NY 276 (1951) as a defense to the action. The Madden Court, however, squarely rejected the union’s argument as follows: Page 32 of 42 “It is certainly not too much to expect that a labor union, of all organizations, should not deprive its members of their jobs or of job opportunities without proof, fairly raised and fairly heard, of substantial wrongdoing. Nor, as the cases earlier cited recognize (e.g., Polin v. Kaplan, 257 N. Y. 277, supra.; Blek v. Wilson, 262 N. Y. 253, supra), is it too much to require the union to assume responsibility for the wrongful expulsion of a member by a number less than all where the membership has expressly provided for such a delegation of disciplinary power. By sanctioning the delegation of authority, the membership subjects the funds of the union to liability for the abuse of such power by those entrusted with it.” (Madden, supra at 296) In the present case, under the CBL the executive board was delegated with the exclusive authority regarding decisions concerning grievance investigation, prosecution, resolution, and whether a grievance should be taken arbitration. This is especially so in matters involving termination. The CBA sets forth a specific procedure for the resolution of employment grievances involving termination from employment. Palladino was not just being defacto expelled from the Union (upon termination) but he had been terminated from his employment after 25 years of service and deprived of substantial benefits under the CBA as a result of the termination. The Union did nothing in this case to protect Palladino's job. The Union had a clear obligation to do so under the doctrine of duty of fair representation, as expressed by the United States Supreme Court, infra, and the explicit terms of the CBL and CBA. In the present case, it is respectfully submitted, as set forth in Madden, it is certainly not too much to require the Union to assume responsibility for the wrongful conduct of the executive board, where, as here, Palladino was disciplined Page 33 of 42 and terminated without proof, fairly raised and fairly heard, of substantial wrongdoing. By sanctioning such delegation of authority to the executive board the membership subjected the funds of the Union to liability for the abuse of such delegated authority. E. The causes of action for breach of contract and the breach of the duty of fair representation. The courts of the State of New York clearly recognize direct actions against an employer for wrongful discharge and breach of contract in actions brought for breach of duty of fair representation against a Union. (see, Matter Board of Educ. Commack Union Free School Dist. v. Ambach, 70 NY2d 501 ( 1987); Smith v. Sipe, 109 AD2d 1034 (3rd Dept. 1985), rev’d Smith v. Sipe, 67 NY2d 928 (1986); Yoonessi v. State of New York, 289 AD2d 998 (4th Dept. 2001); Jackson v. Regional Tr. Serv. 54 AD2d 305 (4th Dept. 1976)) “The duty of fair representation was judicially evolved to enforce fully the important principle that no individual union member may suffer invidious, hostile treatment at the hands of the majority of his or her coworkers. The concept is designed to protect individual union members from arbitrary abuses by the union in the negotiation or administration of collective bargaining agreements and in the procedures for settlement of grievances by providing him or her with recourse against both his or her employer and the union. (Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Buttry v. General Signal Corp., 871 F. Supp. 136 (N.D. N.Y. 1994), judgment aff'd, 68 F.3d 1488 (2d Cir. 1995)).” (53 N.Y. Jur. 2d Employment Relations § 525) In Vaca v. Sipes, 386 US 171 (1967), the United States Supreme Court stated the following in relevant part: Page 34 of 42 “It is now well established that, as the exclusive bargaining representative of the employees …., the Union had a statutory duty fairly to represent all of those employees, both in its collective bargaining …, see Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048; Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785, and in its enforcement of the resulting collective bargaining agreement, see Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370. The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, and was soon extended to unions certified under the N.L.R.A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U.S., at 342, 84 S.Ct., at 367.” (Vaca v. Sipes, 386 US 171, Supra at 177.) Whether a Union has breached its duty of fair representation in a particular case is essentially a factual determination (Matter of Civil Service Bar Assn., Local 237, Int. Brotherhood of Teamsters v. City of New York, 64 NY2d 188, 196 (1984)). F. The Decision appealed from is inconsistent with prior Decisions of the Appellate Division Fourth Department. The Decision Appealed from is inconsistent with the prior Decisions of the Appellate Division Fourth Department in Piniewski v. Panepinto, 267 AD2d 1087 (4th Dep't 1999); Grahame v. Rochester Teachers Ass'n (NYSUT/AFT-AFL/CIO), 262 AD2d 963 (4th Dep't 1999); and Jackson v. Reg'l Transit Serv., 54 AD2d 305 (4th Dept.1976). Page 35 of 42 In Piniewski v. Panepinto, 267 AD2d 1087 (4th Dep't 1999) the Appellate Division Fourth Department held: “With respect to the negligence causes of action, plaintiff was not required to allege that the members of Local 210 authorized or ratified the alleged negligence of the business manager in appointing, hiring or retaining Panepinto as a laborer steward (see, Grahame v Rochester Teachers Assn., 262 AD2d 963; Torres v Lacey, 3 AD2d 998). Local 210, however, established its entitlement to judgment dismissing those causes of action by submitting proof that it had no knowledge of Panepinto's propensity for the type of behavior that caused plaintiff's injuries (see, Start v Sugarcreek Stores, 234 AD2d 933; Curtis v City of Utica, 209 AD2d 1024, 1025). Plaintiff's submissions in opposition to the motion fail to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562).” (Piniewski, supra at 1088) In Grahame v. Rochester Teachers Ass'n (NYSUT/AFT-AFL/CIO), 262 AD2d 963 (4th Dept. 1999) the court held: “Supreme Court properly denied defendant's motion to dismiss the complaint, which alleges a cause of action for negligent misrepresentation. Plaintiff alleges that defendant's representative provided erroneous information to plaintiff's decedent regarding her retirement benefits (see, Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417). We reject the contention of defendant that the complaint must be dismissed because plaintiff failed to allege that the individual members of defendant union ratified the acts of their representative. Plaintiff is not required to allege ratification of the alleged negligent act where the action against defendant union *964 is based on the negligence of its agent “in the course of performing an essential activity of the [union]” (Torres v Lacey, 5 Misc 2d 11, 13, mod on other grounds 3 AD2d 998). Defendant further contends that plaintiff's cause of action is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems. We disagree. The collective bargaining agreement does not address employees' retirement benefits, and thus the alleged negligent misrepresentation action was not subsumed by the duty of fair representation (see, McClary v Civil Serv. Empls. Assn., 133 AD2d 522; see generally, United Steelworkers v Rawson, 495 US 362, 371).” (Grahame, supra at 963-964) Page 36 of 42 In Jackson v. Reg'l Transit Serv., 54 AD2d 305 (4th Dept.1976) the court summed up the entire essence of the present case when it stated the following: “The rationale which permits direct suits by employees against employers, even when the employer has done nothing to prevent the hearing on the merits of a grievance, is simply that when an employer has wrongfully discharged an employee in breach of a collective bargaining agreement, that breach could be remedied through the grievance procedure to the employee's benefit were it not for the union's breach of its duty of fair representation to the employee. Such lack of fair representation leaves the employee remediless to hold his job and, therefore, constitutes a serious injustice to the employee. It is not section 301 (Hines v Anchor Motor Freight, supra, p 566), which is violated but rather, the fact that the Legislature has conferred upon the employers and unions exclusive power to establish grievance procedures. We cannot believe that the Legislature intended to vest in the unions such unfettered discretion as to deprive injured employees of all remedies for breach of contract. To permit the employer wrongfully to discharge an employee and then be shielded from the natural consequences of such breach by the collective bargaining agreement or by wrongful or perfunctory union conduct in the enforcement of such agreements is contrary to the public policy relating to public as well as private sectors of employment where it is plain that public employers and their employees' interests are best served when grievances are heard and decided on the merits (Civil Service Law, § 200).” (Jackson, supra at 309) G. The Appellate Division First Department refused to apply the unanimous ratification rule set forth in Martin v. Curran in an unintentional tort lawsuit brought against an unincorporated association. In Torres v. Lacey, 3 AD2d 998 (1st Dept. 1957) the court stated the following: “Order denying the motion to dismiss the complaint or the second cause of action for insufficiency, unanimously modified by dismissing the second cause of action, without costs to either party, with leave to replead. Martin v. Curran (303 N. Y. 276) is not applicable to an unincorporated association's unintentional tort, such as is involved in this second cause of action. Special Term correctly ruled that to require membership authorization or even ratification of such an unintentional tort is, in effect, to attempt to transmute a negligent act into a willful wrong. This is an inadmissible result, straining both law and logic. Still the complaint is not without its inadequacies: (1) Though clearly inferable from the allegation that plaintiff entered the premises lawfully and peacefully and was assaulted without cause or Page 37 of 42 provocation, plaintiff's freedom from contributory negligence has not been affirmatively pleaded. The new complaint should reduce this inference to an affirmative statement of fact; (2) Paragraph 10 may fairly be criticized as pleading the legal conclusion of defendant's negligence rather than spelling out the ultimate facts that constitute defendant's alleged neglect and failure to take the necessary steps for the safety of plaintiff while on the premises. Settle order on notice.” (Torres, supra at 998) H. It is time to abrogate the unanimous ratification rule altogether in cases involving an unincorporated association labor organization. The problems occasioned by the unanimous ratification rule in cases involving labor organizations were directly and succinctly addressed in the dissenting opinion of Appellate Division Justice Saxe in Salemeh v. Toussaint ex rel. Local 100 Transp. Workers Union, 25 AD3d 411 (1st Dept. 2006) In this regard Justice Saxe wrote in relevant part: “…The policy question presented here is a rhetorical one: how can the law permit a union to be relieved of collective responsibility as a matter of law, and to avoid any financial obligation, … simply because the legal form under which it chose to conduct its business was that of an unincorporated association? Chief Justice William Howard Taft addressed these issues years ago in Mine Workers v Coronado Coal Co. (259 US 344 [1922]), stating: “It would be unfortunate if an organization with as great power as this International Union has in the raising of large funds and in directing the conduct of 400,000 members in carrying on, in a wide territory, industrial controversies, and strikes out of which so much unlawful injury to private rights is possible, could assemble its assets to be used therein free from liability for injuries by torts committed in course of such strikes. To remand persons injured to a suit against each of the 400,000 members, to recover damages and to levy on his share of the strike fund, would be to leave them remediless” (id. at 388-389). It is an inappropriate burden to force upon injured plaintiffs, who could bring suit against any other form of organization, to prove that every member of a union had Page 38 of 42 authorized or ratified the assault and battery which caused them physical harm before being able to hold the union liable. Realizing that it was virtually impossible to obtain the 100% ratification obstacle that victims of union violence must overcome, the Court in Mine Workers v Gibbs (383 US 715 [1966]) noted: “There can be no rigid requirement that a union affirmatively disavow such unlawful acts as may previously have occurred. What is required is proof, either that the union approved the violence which occurred, or that it participated actively or by knowing tolerance in further acts which were in themselves actionable under state law or intentionally drew upon the previous violence for their force” (id. at 739 [citation omitted]). Our state law has not moved yet in the direction of similar claims asserted in federal actions. But, in Martin v Curran (supra), Judge Conway, in dissent, hit the nail on the head when *415 he noted that section 13 of the General Associations Law is simply a procedural law, not a grant of substantive rights to a union existing as an unincorporated association. He presciently noted **4 that General Associations Law § 13 “was enacted to convenience a plaintiff, such as we have here, by enabling him to sue and more promptly reach the property of the association for the satisfaction of any judgment he may recover, without naming as defendants hundreds or even thousands of members of an association—in this instance no doubt employed on ships scattered around the world. . . . It was not intended to affect or derogate from the common law of tort, had no such effect and a court is not free to hold that there was such derogation accomplished by indirection and without expressed intention” (303 NY at 289-290). Recognizing then that since a union may sue as an entity under section 12 of the General Association Law for a libel published against its officers, Judge Conway noted that it would be incongruous if it were not obligated to respond in damages for libel as a defendant (id. at 294). That is the essence of the position I propose. I believe that there is no good reason to give continuing recognition to a decision that is not sound on the law and more importantly defies common sense. Accordingly, I vote to reinstate the complaint against the union. [Citations Omitted]" (Tousant, supra at 412-415) I. The unanimous ratification rule if applied is a grant of immunity from suit for breach of duty of fair representation which is antithetical to very concept of the fiduciary obligation imposed on a labor union to fairly represent its members. The proposition advanced by the Union and adopted by the Fourth Department Page 39 of 42 concerning unanimous ratification will provide the Union with blanket immunity from suit for breach of duty of fair representation in any case where a decision concerning whether or not to take a matter to arbitration was not presented to the entire Union membership for a vote. The CBL states that one of the "objectives" is to encourage membership participation. Under the CBL, however, a quorum is established by participation of as few as ten (10) Union Members. It is respectfully submitted that the proposition advanced by the Union amounts to a standard of impossibility soundly rejected by this Court in the Madden case. In the present case the executive board acted pursuant to the terms of the CBL when it voted not to take the matters to arbitration - without presenting the matter to the entire Union membership for a vote. The CBL clearly delegated authority to the executive board to make the decision on behalf of the entire Union membership. If, on the other hand, the executive board was required to present the issue of whether or not to take a matter to arbitration to the entire Union membership for a vote and did not do so, whether, negligent, grossly negligent, reckless or willful, that failure to do so could be used under the proposition advanced in the present case as a shield from suit for breach of duty of fair representation, if the rule of unanimous ratification is the standard to be applied. In this regard then, the worse the conduct of the executive board complained of, the more the protection afforded by the rule of unanimous ratification. The proposition Page 40 of 42 advanced by the Union under the facts and circumstances of this case is antithetical to every extant principle of law and equity in this State. The Union's proposition carried to its logical conclusion would require a grievant to drag each and every member of the Union into a meeting and hold out until there was a unanimous decision one way or the other to take a matter to arbitration. If one Union member disagreed with the decision of the executive board not to take a grievance to arbitration there could not be unanimous ratification. If a Union member was out of town and did not attend a union meeting there could not be unanimous ratification. If a Union member was ill and did not attend a union meeting there could not be unanimous ratification. If a Union member was on vacation and did not attend a union meeting there could not be unanimous ratification. According to the Union without a unanimous vote there could never be ratification and hence never any liability for anything the Union did or did not do. The proposition advanced by the Union, given the circumstances of this case, and the black letter of the Union’s Constitution and By-Laws, stands logic and the law on its head. The Appellate Division Fourth Department’s adoption of the unanimous ratification argument advanced by the Union constitutes reversible error of law. Page 41 of 42 CONCLUSION The proposition advanced by the Union, concerning General Associations Law § 13 and the requirement of unanimous ratification, is wholly inconsistent with this Court’s ruling in the Madden case and the decisions of United States Supreme Court in cases involving a labor union’s fiduciary duty of fair representation. Consequently, for all of the foregoing reasons, as well as all prior proceedings heretofore had herein, Plaintiff-Appellant respectfully requests that this Court issue a Decision and Order, reversing the Appellate Division Fourth Department’s Memorandum and Order, and directing further proceedings consistent with the Decision of this Court on this appeal, of all remaining unresolved issues on appeal before the appellate court, as well as for such other and further relief as to this Court seems just and proper. Dated: June 26, 2013 Respectfully submitted, ____________________________ Robert Louis Riley, Esq. Attorney for Plaintiff-Appellant University Building, Suite 325 120 E. Washington St. Syracuse, NY 13202 Telephone: (315) 254-4233 Facsimile: (315) 476-5208 Page 42 of 42