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

Brief

N.Y.February 18, 2014

To Be Argued by: Kenneth L. Wagner Time Requested: 20 Minutes Docket No. APL-2013-00067 Onondaga County 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 UNION DEFENDANTS-RESPONDENTS Kenneth L. Wagner Bryan T. Arnault BLITMAN & KING LLP Office and Post Office Address Franklin Center, Suite 300 443 North Franklin Street Syracuse, New York 13204 Telephone: (315) 422-7111 Facsimile: (315) 471-2623 Email: klwagner@bklawyers.com Attorneys for Union Defendants-Respondents Date Completed: August 23, 2013 i TABLE OF CONTENTS Page COUNTER-STATEMENT OF THE QUESTIONS PRESENTED ......................... 1 COUNTER-STATEMENT OF THE CASE ............................................................. 1 The October 5, 2007 Misconduct Incident ............................................................. 2 The August 19, 2008 Misconduct Incident ............................................................ 4 Palladino’s Rejection of a Settlement Agreement that Would Have Preserved his Employment ............................................................................................................ 6 Palladino’s Discharge and the Union’s Decision Not to Arbitrate ........................ 7 Procedural History .................................................................................................. 9 ARGUMENT ........................................................................................................... 12 POINT ONE ......................................................................................................... 12 THE MARTIN RULE SHOULD NOT BE OVERTURNED ........................... 12 A. The Martin Court Held that General Association Law Section 13 did Not Change the Common Law Rule ................................................... 12 B. The Stare Decisis Doctrine Counsels Strongly in Favor of Retention of the Rule ........................................................................................... 15 1. The Principles of Stare Decisis ...................................................... 15 2. If the Martin Rule is to be Jettisoned, the Legislature Must Do It 17 POINT TWO ........................................................................................................ 23 THE APPELLATE DIVISION CORRECTLY APPLIED THE MARTIN RULE TO THE PLAINTIFF'S DUTY OF FAIR REPRESENTATION CLAIMS ............................................................................................................ 23 A. The Duty of Fair Representation Doctrine Permits Unions to Exercise Broad Discretion .................................................................................. 23 B. The Martin Rule Applies to DFR Claims ........................................... 25 C. Madden Does Not Control DFR Claims ............................................. 28 D. The Duty of Fair Representation Standard is Incompatible with the Unintentional Tort Exception .............................................................. 33 ii E. There is No Need to Create a DFR Exception Because the Legislature has Created a Claim for Relief Under the Taylor Law that is Not Subject to the Martin Rule .................................................................. 35 CONCLUSION ........................................................................................................ 37 iii TABLE OF AUTHORITIES Page Cases A. Terzi Prods., Inc. v. Theatrical Protective Union, Local No. One, 2 F. Supp. 2d 485 (S.D.N.Y. 1998) ............................................................................................. 18 Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65 (1991) .............................................. 34 Altimari v. Parker, 189 A.D.2d 982 (3d Dep’t 1993) ....................................... 24, 25 Barrett v. New York Republican State Comm., 213 A.D.2d 989 (4th Dep’t 1995) . 32 Bennett v. Twin Parks Northeast Houses, Inc., 93 N.Y.2d 860 (1999) ................... 12 Building Industry Fund v. Local Union No. 3, IBEW, 992 F. Supp. 192 (E.D.N.Y. 1996), aff’d, 141 F.3d 1151 (2d Cir. 1998) ................................................... 18, 31 Butler v. McCarty, 191 Misc.2d 318 (Sup. Ct. Madison Cty.), aff’d, 306 A.D.2d 607 (3d Dep’t 2003) ............................................................................................. 26 Cenven, Inc. v. Bethlehem Steel Corporation, 41 N.Y.2d 842 (1977) .................... 15 Civil Service Bar Ass’n v. City of New York, 64 N.Y.2d 188 (1984) ...................... 35 CSEA, Inc. v. PERB, 132 A.D.2d 430 (3d Dep’t 1987), aff’d, 73 N.Y.2d 796 (1988) .................................................................................................................... 24 DelCostello v. Teamsters, 462 U.S. 151 (1983) ...................................................... 25 Duane Reade, Inc. v. Local 338, R.W.D.S.U., 17 A.D.3d 277 (1st Dep’t 2005) ..... 32 Duane Reade, Inc. v. Local 338, R.W.D.S.U., 3 Misc.3d 405 (Sup. Ct. N.Y. Cty. 2003) ..................................................................................................................... 31 Duane Reade, Inc. v. Local 338, Retail, Wholesale, Dep’t Store Union, 6 Misc.3d 790 (Sup. Ct. N.Y. Cty. 2004), aff’d 17 A.D.3d 277 (1st Dep’t 2005), appeal denied, appeal dismissed, 5 N.Y.3d 797 (2005) ........................................... 28, 33 Falu v Wagner, 185 A.D.2d 791 (1st Dep’t 1992) .................................................. 21 Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) .................................................. 24 Gaiden v. Guardian Life Insur. Co. of America, 94 N.Y.2d 330 (1999) ................. 12 Giffords Oil Co., Inc. v. Boss, 54 A.D.2d 555 (2d Dep’t 1976) .............................. 33 Grahame v. Rochester Teachers Ass’n, 262 A.D.2d. 963 (4th Dep’t), appeal dismissed by 94 N.Y.2d 796 (1999) ........................................................ 11, 26, 34 iv Grassel v. PERB, 301 A.D.2d 522 (2d Dep’t 2003) ................................................ 25 Great Northern Insur. Co. v. Interior Constr. Corp., 7 N.Y.3d 412 (2006) .... 16, 18 Herington v. CSEA, Inc., 130 A.D.2d 961 (4th Dep’t 1987) ............................ 25, 27 Hines v. Anchor Motor Freight, 424 U.S. 554 (1976) ............................................. 25 Jackson v. Regional Transit Service, 54 A.D.2d 305 (4th Dep’t 1976) .................. 25 Jund v. Town of Hempstead, 941 F.2d 1271 (2d Cir. 1991) .................................... 18 Kaplan v. Home Depot USA, Inc., 2012 U.S. Dist. LEXIS 113864 (S.D.N.Y. 2012) .............................................................................................................................. 22 Lahendro v. NYSUT, 88 A.D.3d 1142 (3d Dep’t 2011) ...................... 19, 26, 28, 36 Madden v. Atkins, 4 N.Y.2d 283 (1958) ............................................... 28, 29, 30, 31 Mamorella v. Derkasch, 276 A.D.2d 152 (4th Dep’t 2000). ............................ 34, 35 Martin v. Curran, 303 N.Y. 276 (1951) .......................................................... passim Matter of Eckert, 39 N.Y.2d 493 (1976) .................................................................. 15 Matter of Garwitt, 41 N.Y.2d 845 (1977) ................................................................ 15 McCabe v. Goodfellow, 133 N.Y. 89 (1892) .............................................. 13, 14, 33 McCoy v. Feinman, 99 N.Y.2d 295 (2002) ............................................................. 19 Mellon v. Benker, 186 A.D.2d 1020 (4th Dep’t 1992) ............................................ 34 Modeste v. Local 1199, Drug, Hosp. & Health Care Employees Union, 850 F. Supp. 1156 (S.D.N.Y.) , aff’d, 38 F.3d 626 (2d Cir. 1994) ................................. 18 Mohan v. United University Professions, Inc., 127 Misc.2d 118 (Sup. Ct. Chautauqua Cty. 1984) ......................................................................................... 25 Morrissey v. National Maritime Union, 544 F.2d 19 (2d Cir. 1976) ...................... 31 Moses Flores v. The Lower East Side Service Center, Inc., 4 N.Y.3d 363 (2005) . 19 Niven v. Spickerman & Stever, 12 Johns. 401 (1815) ............................................. 13 Ostrom v. Greene, 161 N.Y. 353 (1900) ................................................................. 13 Palladino v. CNY Centro, Inc., 101 A.D.3d 1653 (4th Dep’t 2012) .... 11, 25, 26, 28 People ex rel. v. Campbell, 145 N.Y. 587 (1895).................................................... 20 People v. Damiano, 87 N.Y.2d 477 (1996) ................................................ 15, 16, 18 People v. Forte, 277 N.Y. 440 (1938) ..................................................................... 19 People v. Hobson, 39 N.Y.3d 479 (1976) ................................................... 15, 16, 17 v People v. Newspaper and Mail Delivers’ Union, 250 A.D.2d 207, 214 (1st Dep’t 1998) ..................................................................................................................... 36 People v. Rudolph, 2013 N.Y. Slip Op. 4840 (2013) .............................................. 17 People v. Taylor, 9 N.Y.3d 129 (2009) ................................................................... 17 Piniewski v. Panepinto, 267 A.D.2d. 1087 (4th Dep’t 1999) ..................... 11, 33, 34 Ponticello v. County of Suffolk, 225 A.D.2d 751 (2d Dep’t 1996) .......................... 24 Pratt Institute v. City of New York, 183 N.Y. 151 (1905) ....................................... 20 Prin v. DeLuca, 218 N.Y.S.2d 761 (Sup. Ct. Kings Cty. 1961) ....................... 27, 31 Rajter v. Local No. 294, 233 A.D.2d 559 (3d Dep’t 1996) ..................................... 27 Saint v. Pope, 12 A.D.2d 168 (4th Dep’t 1961) ................................................ 26, 31 Salemeh v. Toussaint, 25 A.D.3d 411 (1st Dep’t 2006) .......................................... 20 Sapadin v. Board of Educ. of City of New York, 246 A.D.2d 359 (1st Dep’t 1998) .............................................................................................................................. 24 Scivoletti v. Leckie, 4 A.D.2d 773 (2d Dep’t 1957) ................................................. 27 Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N.Y. 412 (19__) .......................... 17 Sizer v. Daniels, 66 Barb. 426 (1873) ...................................................................... 13 Skarpeletzos v. Counes & Raptis Corp., 228 N.Y. 46 (1920) ................................. 20 Smith v. Sipe, 67 N.Y.2d 928 (1986) ....................................................................... 24 Sperry Products, Inc. v. Association of Amer. R.R., 132 F.2d 408 (2d Cir. 1942), cert. denied 319 U.S. 744 (1943) ......................................................................... 14 Stark v. Molod Spitz DeSantis & Stark, P.C., 9 N.Y.3d 59 (2007) ......................... 12 Stteelworkers v. Rawson, 495 U.S. 362, 374-375 (1990) ........................................ 34 Symanski v. East Ramapo Cent. School Dist., 117 A.D.2d 18 (2d Dep’t 1986) ..... 24 Thornton v. Roosevelt Hospital, 47 N.Y.2d 780 (1979) .......................................... 21 Torres v. Lacey, 3 A.D.2d 998 (1st Dep’t 1957) .............................................. 26, 33 Trainosky v. CSEA, Inc., 130 A.D.2d 827 (3d Dep’t 1987) .................................... 35 Vaca v. Sipes, 386 U.S. 171 (1967) ......................................................................... 24 Walsh v. Torres-Lynch, 266 A.D.2d 817 (4th Dep’t 1999) .................. 11, 26, 27, 28 Wetherill v. Eli Lilly & Co.(In re N.Y. County DES Litig.), 89 N.Y.2d 506 (1997) 21 vi Zanghi v. Laborers’ Intl. Union of N. Am., AFL-CIO, 8 A.D.3d 1033 (4th Dep’t 2004), lv denied 4 N.Y.3d 703 (2005) .................................................................. 11 Statutes 42 U.S.C. § 1983 ................................................................................................. 9, 10 Civil Service Law §209-a.2(c) ................................................................................. 36 Election Law 612(1) ................................................................................................. 20 Election Reform Act of 1992 ................................................................................... 21 General Associations Law § 13 ....................................................................... passim Laws of 1961, ch. 518, § 1 ....................................................................................... 17 Laws of 1990, ch. 467, § 4 ....................................................................................... 36 Laws of 2000, ch. 235, § 1 ....................................................................................... 21 Public Authorities Law § 1332(5) .............................................................................. 2 Rules CPLR § 214 .............................................................................................................. 21 CPLR § 214-c ........................................................................................................... 21 CPLR. § 1411 ........................................................................................................... 22 Other Authorities Wrightington on Unincorporated Associations and Business Trusts, § 64 ............. 14 Scholarly Commentary Rubinstein, Union Immunity From Suit in New York, 2 N.Y.U. J. L. & Bus. 641 (2006) ................................................................................................................... 36 1 COUNTER-STATEMENT OF THE QUESTIONS PRESENTED 1. Should this Court overrule Martin v. Curran, 303 N.Y. 276 (1951), which held that Section 13 of the General Associations Law did not alter the common law rule that to establish liability against an unincorporated association, the plaintiff must allege and prove the association’s membership unanimously authorized or ratified the alleged wrongful act? The courts below did not address this question. The Union defendants respectfully submit that this Court should not overturn its determination of more than six decades ago that the Legislature did not alter the common law rule. 2. Did the court below correctly apply the Martin rule to the plaintiff’s claims for breach of the duty of fair representation? The Union defendants respectfully submit that the Appellate Division correctly followed ample and unanimous precedent holding that the Martin rule applies to duty of fair representation claims and that the defendants were therefore entitled to summary judgment. COUNTER-STATEMENT OF THE CASE Until his discharge, plaintiff-respondent Eugene Palladino (“Palladino” or “Plaintiff”) was employed full time by defendant CNY Centro, Inc. “Centro”) as a 2 bus driver [R. 536].1 Centro is a public authority that provides public transportation services in the Central New York area. Public Authorities Law § 1332(5). Amalgamated Transit Union, Local 580 (“Local 580”) is a labor organization that represents a negotiating unit of Centro employees (including Palladino, at all times relevant) with regard to terms and conditions of employment [R. 63-64, 536-537]. At times relevant to this matter, Centro and the Local 580 were party to a collective bargaining agreement (“Agreement”) that contains a grievance and arbitration procedure [R. 536-537]. During the underlying events, the chief executive officer of Local 580 was Business Agent Charles Watson [R. 230-231].2 Local 580 is a chartered local union of the Amalgamated Transit Union (“International Union”) [R. 63]. The October 5, 2007 Misconduct Incident On October 15, 2007, Palladino was disciplined by Centro for his actions in misrepresenting his absence from work on October 5, 2007. The company alleged that Palladino had committed misrepresentation by telling the dispatcher that he could not work his shift, which began at 11:50 a.m. because he was unable to make it back from out of town. He was alleged to have told the dispatcher, “I’m not 1 References in this form are to the Record on Appeal. 2 For convenience, references to the “Union” include defendant Watson who was named as a party in his representative capacity. 3 going to make my run today. I was called out of town last night and I am not going to make it back in time” [R. 232, 243]. This statement was essentially false, the company said, because in fact Palladino had accepted an assignment from his part-time employer, Quality Coach, to serve as the driver on a charter trip to Washington, D.C. The trip began at approximately 8:00 a.m. on Friday, October 5, and the charter returned to Syracuse on Monday, October 8, 2007. Centro suspended Palladino without pay for five days and placed him on lifetime probation for the offense of misrepresentation. He was advised in writing that “[a]nother incident of misrepresentation will result in termination from employment” [R. 232, 243-244]. Local 580 filed a grievance on behalf of Palladino protesting the discipline, pursuant to the Agreement [R. 232, 245]. A second step hearing concerning the grievance was held on November 20, 2007. By letter dated December 4, 2007, Centro Senior Vice President John Renock denied the grievance [R. 232, 246]. The parties were not otherwise able to resolve the dispute, and pursuant to the grievance procedure, the Union requested arbitration. In March 2008, Local 580 requested an arbitration panel from the Federal Mediation and Conciliation Service (“FMCS”). In accordance with the FMCS selection process, the parties selected Arbitrator Timothy Gorman to hear and decide the grievance. Arbitrator Gorman was appointed by FMCS on or about April 15, 2008 [R. 233]. 4 In the Spring of 2008, the Union prepared for the upcoming arbitration: among other things, it retained counsel, Nathaniel Lambright, to investigate and present the Union’s case challenging the discipline; Business Agent Watson and Attorney Lambright met with Palladino on two occasions to work on case preparation; and Watson and Lambright attempted to speak with two witnesses - Steve Bailey and Charles Simpson [R. 233-234]. Due to concerns over the merits of the grievance and Palladino’s ongoing lack of cooperation in regard to the two potential witnesses, Business Agent Watson put the question of whether to proceed with the arbitration to Local 580 officials at an executive board meeting on June 27, 2008. After a discussion of the merits and Palladino’s lack of cooperation, the Union determined to withdraw the grievance [R. 235]. Palladino was notified by letter from Watson dated July 1, 2008 [R. 236, 249]. The August 19, 2008 Misconduct Incident On August 20, 2008, Palladino was taken out of service due to an alleged late pull out and unnecessary delay during his Call-A-Bus (a service providing reservation-based pick-ups and drop-offs) run the previous day. At his request, Palladino was initially represented by Local 580 executive board member Dominic LoSurdo, who was assisted by executive board member Mike Aiello. In the course of its investigation, Centro alleged Palladino had committed additional misconduct 5 including, most seriously, a charge of misrepresentation concerning a statement he made to the dispatcher while on his run the day before. This eventually resulted in the employer’s issuing a set of misconduct charges [R. 236, 250]. At Palladino’s request, an investigatory meeting with Labor Relations Manager Gary Nordheim was postponed until September 2, 2008. On Friday, August 29, Watson met with Palladino at length to review the facts and circumstances of the matter. The meeting with management was not concluded on September 2 and was resumed on September 4, 2008. During the meeting, Nordheim advised the Union and Palladino that the company would be moving next to a termination hearing to be scheduled the following week [R. 237]. Centro’s principal and most serious charge was the aforementioned misrepresentation, as revealed on a bus video tape. Palladino had left the Centro garage approximately three minutes after his scheduled departure time of 12:00 p.m. He then took a circuitous, unnecessarily long route to get to his first scheduled pickup in East Syracuse, New York. As Palladino neared the destination, he traveled north on Thompson Road from the I-690 West off ramp. He continued until James Street, at which point he turned right, heading east, toward the passenger pickup. Without traffic delays, the stretch of Thompson Road would take two minutes or less. However, on this occasion there was a lane closure due to road work for a portion of Thompson Road just south of the 6 intersection with James Street. Palladino mostly avoided the slow traffic in the left lane, bypassing a line of cars on the right. Palladino was delayed at most two minutes by the lane closure. However, shortly after turning on to James Street, he called into Centro and advised the dispatcher, “I just wanted to let you know, I am down about 15 minutes - I was delayed due to construction on Thompson Road.” [R. 237]. Palladino’s Rejection of a Settlement Agreement that Would Have Preserved his Employment Following the investigatory meeting on September 4, Centro and the Union began settlement discussions in an effort to save Palladino’s job. On multiple occasions, Watson met with management officials Gary Nordheim, Joe DeGray, and John Renock and negotiated a draft settlement that would avert termination of Palladino’s employment [R. 238]. Over the course of September 8, 9, and 10, Watson met with and had several telephone conversations with Palladino to advise him on the course of the negotiations and to discuss the terms of the proposed settlement. Watson went over the terms in detail with Palladino in a meeting on September 9 and in telephone conversations on September 10, 2008. Watson also offered to hand- deliver a copy of the document, but Palladino declined [R. 238, 1387-1388]. The proposed terms included an unpaid suspension for 12 days, general probation for 130 working days, indefinite probation regarding misrepresentation 7 offenses, and disqualification from working Call-A-Bus assignments for approximately five months. The proposed settlement agreement also provided that its contents would not establish any precedent or limit management’s ability to discipline other employees and that the terms of the agreement itself were not subject to the grievance procedure [R. 238, 251]. Palladino told Watson on September 10, a Wednesday, that he wanted to consider the proposed settlement over the weekend and would call Watson by Monday, September 15 [R. 238-239]. However, Palladino did not contact Watson on September 15 and did not do so until September 19, 2008, upon learning that his employment had been terminated [R. 239]. Palladino’s Discharge and the Union’s Decision Not to Arbitrate Meanwhile, in the absence of acceptance of its offer, on September 12 the company sent Palladino a letter scheduling a review for termination hearing on September 16, 2008. The letter advised Palladino that he was requested to attend, but that the hearing would take place regardless of his attendance [R. 239, 252]. The hearing took place, as scheduled, on September 16, 2008. Business Agent Watson and board member LoSurdo attended on behalf of the Union; Palladino did not attend or call to explain his absence. Nordheim and DeGray presented management’s reasons for termination. Watson represented Palladino to the best of his abilities, but management was unpersuaded. At the conclusion of 8 the hearing, Centro announced it was terminating Palladino’s employment [R. 239]. By letter dated September 18, 2008, Centro advised Palladino of his employment termination, effective September 16, 2008 [R. 239, 253]. A grievance protesting the discharge was drafted by Palladino and filed by the Union on October 7, 2008 [R. 240, 254-256]. By letter from DeGray dated October 15, 2008, the company denied the grievance [R. 240, 257]. By letter from Renock dated November 13, 2008, Centro denied the grievance at the second step [R. 240, 258]. The parties were otherwise not able to resolve the matter under the grievance procedure [R. 240]. The Union’s executive board held a special meeting on or about December 11, 2008 to consider whether to take the discharge grievance to arbitration. The entire executive board was present, including: President Tyrone Burke, Bill Montroy, Reynard Hutchinson, Dominic LoSurdo, Michael Aiello, Brenda Sparo, Frank Chapman, and Scott Hamilton. Attorney Lambright appeared for a portion of the meeting to address the executive board and to discuss the matter. After Attorney Lambright left the meeting, the executive board members completed their deliberations and voted unanimously not to submit the grievance to arbitration [R. 240]. 9 On December 12, 2008, Local 580 sent Palladino a letter advising him that the Union had determined to withdraw the grievance from arbitration [R. 241, 259]. Procedural History The Plaintiff commenced the first-captioned action (Index No. 2008-8650) in Supreme Court, Onondaga County, by the filing of a verified complaint on October 31, 2008 (later amended on December 26, 2008) against Centro and defendant Local 580. Therein, Palladino asserted claims of breach of contract against both defendants and breach of the duty of fair representation (“DFR”) against Local 580, all in connection with the discipline imposed against him by Centro in connection with the October 2007 misconduct. Responsive pleadings denying the allegations and any liability were filed by Centro and Local 580 [R. 1- 2]. Palladino later commenced a second action (Index No. 2009-0473) in the same court by the filing of a complaint on January 20, 2009 (later amended on March 12, 2009) against Centro and defendants Watson and Local 580. In this second action, Palladino asserted claims of breach of contract and deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983 against all defendants, wrongful termination against Centro, and breach of the duty of fair representation against the Union, all in connection with his discipline and subsequent termination 10 from employment by Centro. Responsive pleadings denying the allegations and any liability were filed by Centro and the Union [R. 1-2]. Following substantial documentary and testimonial discovery, in January 2012 the Union and Centro served and filed papers in support of their motions for summary judgment dismissing all claims against them [R. 62-351, 352-762]. The Plaintiff served and filed opposition papers to both motions [R. 763-1378 and electronic exhibits]. The Union served and filed reply papers [R. 1379-1391], as did Centro [R. 1392-1433]. Immediately following oral argument of the motions, the court (Honorable James P. Murphy, Justice) issued a bench decision, granting partial summary judgment [R. 50-59]. The court denied the Union’s motion with respect to the claims for breach of the duty of fair representation and dismissed all other claims against the Union [R. 51-56]. Centro’s motion was denied with respect to Palladino’s claims for breach of the collective bargaining agreement and pursuant to section 1983 for violation of his equal protection rights [R. 53-56]. In rejecting the applicability of the Martin defense, Justice Murphy explained: Contrary to, I think, the Union’s and Mr. Watson’s contentions that the General Association Law, Section 13, bars Mr. Palladino’s action, I find that Palladino’s claim alleging breach of duty of fair representation does not rise to the level of an intentional tort requiring proof that the individual members of the Union ratified the 11 alleged negligence complained of. I’m citing two 4th Department cases, Piniewski v. Panepinto, 267 A.D.2d 1087; also, Grahame v. Rochester Teachers Association, 262 A.D.2d 963. [R. 52]. The Union and Centro each appealed to the Fourth Department. In unanimously reversing the partial denial of the defendants’ summary judgment motions, the court held as follows: We agree with defendants 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 that 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 defendants’ remaining contentions. Palladino v. CNY Centro, Inc., 101 A.D.3d 1653, 1654 (4th Dep’t 2012).3 3 The Union also argued that Supreme Court erred in denying its motion based on (1) its affirmative defense that the plaintiff had failed to exhaust internal remedies under the International Union constitution [R. 63, 180-181, 272, 310] and (2) the merits of the hybrid-breach of contract/duty of fair representation claims. Centro also presented arguments on the merits. In light of its holding on the Martin rule issue, the Fourth Department did not address these contentions. If the Court determines that the defendants’ motions should not have been granted on the basis of the Martin rule, the appeal should be remitted to the Fourth Department to determine the unaddressed issues. See, e.g., Stark v. Molod Spitz DeSantis & Stark, P.C., 9 12 ARGUMENT POINT ONE THE MARTIN RULE SHOULD NOT BE OVERTURNED A. The Martin Court Held that General Associations Law Section 13 did Not Change the Common Law Rule Section 13 of the General Associations Law provides, in relevant part: 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 of 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. Gen. Ass’ns Law § 13. In Martin v. Curran, 303 N.Y. 276 (1951), a divided Court of Appeals held that the common law conception of the unincorporated association and the resultant rule that authorization or ratification by the entire membership is necessary to establish liability of the association were not altered by the Legislature’s enactment of Section 13. The plaintiff in Martin sued for libel for statements that were contained in the official newspaper of the National Maritime Union. Among the defendants were union officers who constituted the editorial N.Y.3d 59 (2007); Gaiden v. Guardian Life Insur. Co. of America, 94 N.Y.2d 330, 350 (1999); Bennett v. Twin Parks Northeast Houses, Inc., 93 N.Y.2d 860, 860 (1999). 13 board of the paper, which had a circulation of some 125,000 copies. Id. at 684- 685. The majority opinion reviewed the theory, history, and rules of the common law governing associations: A voluntary, unincorporated membership association is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members (Ostrom v. Greene, 161 N.Y. 353, 361; see Niven v. Spickerman & Stever, 12 Johns. 401). No agency of one member for another is implied (McCabe v. Goodfellow, 133 N.Y. 89, 95, supra). “A part of the members of a voluntary organization cannot bind the others without their consent before the act which it is claimed binds them is done, or they, with full knowledge of the facts, ratify and adopt it” (Sizer v. Daniels, 66 Barb. 426, 432-433). Id. at 685. Until the Legislature enacted statutes in 1849 and 1851, a plaintiff seeking damages from an association was required to name all members as defendants. Id. At that point, and as provided in subsequent legislation that preceded Section 13, the Legislature confirmed the “privilege” of naming and serving only the officers of the association. Id. This “convenience” was continued in the Legislature’s adoption in 1920 of Section 13. That statutory authorization was, however, only a procedural nicety and did not create any “new substantive right or liability.” Id. That is, the majority explained, where officers are representative defendants the liability at issue is that 14 of the individual members as individuals and, accordingly, a plaintiff cannot sue the defendant “unless the debt, which it seeks to recover, is one upon which he can maintain an action against all the associates by reason of their liability therefor, either jointly or severally.” Id. at 685-686 (quoting McCabe v. Goodfellow, 133 N.Y. 89, 92 (1892) (internal quotation marks omitted)). The Court cited the unbroken line of cases involving claims sounding in both contract and tort that applied the rule. Id. at 686. This led to the Court’s holding: So, for better or worse, wisely or otherwise, the Legislature has limited such suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven. Despite procedural changes, substantive liability in such cases is still, as it was at common law, “that of the members severally” (Sperry Products, Inc. v. Association of Amer. R.R., 132 F.2d 408, 410, certiorari denied 319 U.S. 744). “In the kind of association now under consideration, only those members are liable who expressly or impliedly with full knowledge authorize or ratify the specific acts in question” (Wrightington on Unincorporated Associations and Business Trusts, § 64). Id. at 282. 15 B. The Stare Decisis Doctrine Counsels Strongly in Favor of Retention of the Rule 1. The Principles of Stare Decisis The Martin rule should be retained under the well established precepts of the stare decisis doctrine. More than six decades ago, this Court determined the meaning and significance of the Legislature’s enactment of Section 13. Because there has been no change in circumstances to justify reversal of that interpretation, the Martin rule should stand. The stare decisis doctrine admonishes succeeding courts that once a point of law is decided, it generally ought to be followed. See People v. Damiano, 87 N.Y.2d 477, 488 (1996) (Simons, J., concurring). The doctrine should not be departed from “except under compelling circumstances,” Cenven, Inc. v. Bethlehem Steel Corporation, 41 N.Y.2d 842, 843 (1977), or put another way, such a departure should be “resorted to only with the greatest restraint,” Matter of Garwitt, 41 N.Y.2d 845, 847 (1977). The analysis depends on several factors, including the nature of the rights and interests at stake and the extent and degree to which action may be justifiably have been taken in reliance on the precedent (Matter of Eckert, 39 N.Y.2d 493, 500; People v. Hobson, 39 N.Y.3d 479, 488-489, supra). In addition to such familiar considerations but a part therefrom, weight may properly be attached to the relative ease of difficulty of modification or change in the precedent. 16 Matter of Higby v. Mahoney, 48 N.Y.2d 15, 18 (1979) (per curiam). Thus, where a constitutional issue is involved, the hurdle that must be cleared to impel judicial reconsideration is set lower because the process for amending the constitution is so arduous. Id.; Damiano, 87 N.Y.2d at 490 (where constitutional issues are involved “a court may more readily consider change, and in some cases must necessarily do so, because the judicial rules are immune from legislative correction”). By contrast, “[p]recedents involving statutory interpretation are entitled to great stability.” People v. Hobson, 39 N.Y.2d 479 (1976) (Breitel, C.J.); accord Great Northern Insur. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 419-420 (2006) (precedents involving statutory interpretation are entitled to “particular” respect). As the Court explained in Higby: [T]he courts show greater restraint in stepping in to undertake correction of what may be perceived as erroneous determinations with respect to questions arising under legislative enactment. In addition to the relative ease of accomplishing statutory change, this hesitancy may be grounded in either or both of two additional considerations. First, the Legislature has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand and its members are properly politically responsive to the electorate. Second, and of greater significance, under our polity of government and distribution of powers, 17 responsibility for making the policy decisions inherent in the adoption of the original legislative provision was, by its very nature, vested in the legislative branch. 48 N.Y.2d at 18-19.4 2. If the Martin Rule is to be Jettisoned, the Legislature Must Do It In this case, the Martin court determined the legal effect of Section 13. It reviewed the long-standing, prevailing law at the time its enactment and determined that the Legislature intended to change only the procedural suability of unincorporated associations, not the substantive law governing liability.5 Since the Martin decision, the statute has been amended once. In 1961, the Legislature added the second paragraph of Section 13, which broadened the list of officials who could be served a “summons, subpoena, or other legal process” on behalf of a labor organization. L. 1961, ch. 518, § 1. The amendment, notably, did 4 In the oft-cited Hobson opinion, Chief Judge Breitel similarly explained: After all, in such cases courts are interpreting legislative intention and a sequential contradiction is a grossly [arrogated] legislative power. Moreover, if the precedent or precedents have “misinterpreted” the legislative intention, the Legislature’s competency to correct the “misinterpretation” is readily at hand. 39 N.Y.2d at 489 (cited in People v. Rudolph, 2013 N.Y. Slip Op. 4840, *11 (2013) (Read, J. dissenting); People v. Taylor, 9 N.Y.3d 129, 148 (2009); Higby, 48 N.Y.2d at 19; Buffalo v. Cargill, Inc., 44 N.Y.2d 7, 17-18 (1978); Cenven, 41 N.Y.2d at 843). 5 That the decision was closely divided, at four to three, does not provide additional grounds for overturning Martin. See Hobson, 39 N.Y.3d at 490-491 (“Otherwise, every precedent decided by a bare majority is a nonprecedent - one to be followed if a later court likes it, and not to be followed if it does not like it.”) (citing Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N.Y. 412, 420 (1943)). 18 not alter the substantive requirement of authorization or ratification for establishing the liability of unions or other unincorporated associations. Where the Legislature has not acted to overturn a judicial interpretation that is purportedly incorrect or effectuates an unworthy public policy, this Court “may assume from this [fact] that the Legislature agrees with [its] interpretation.” Damiano, 87 N.Y.2d at 490; accord Great Northern Insur., 7 N.Y.3d at 420 (declining to overrule the governing precedent because affected parties have relied on it for decades and “the Legislature has not seen fit to alter this rule”). There is no doubt that proving unanimous authorization or ratification presents an exceedingly difficult obstacle for a litigant; several courts have acknowledged as much. See, e.g., Jund v. Town of Hempstead, 941 F.2d 1271 (2d Cir. 1991) (“[p]roof of authorization by every member . . . would be a virtually impossible burden to meet and would certainly extinguish [plaintiff’s] claim”); A. Terzi Prods., Inc. v. Theatrical Protective Union, Local No. One, 2 F. Supp. 2d 485, 491 (S.D.N.Y. 1998) (same); Building Industry Fund v. Local Union No. 3, IBEW, 992 F. Supp. 192, 195 (E.D.N.Y. 1996), aff’d, 141 F.3d 1151 (2d Cir. 1998) (“this is a nearly impossible burden to meet”); Modeste v. Local 1199, Drug, Hosp. & Health Care Employees Union, 850 F. Supp. 1156, 1166 (S.D.N.Y.) , aff’d, 38 F.3d 626 (2d Cir. 1994) (“[u]nquestionably, New York’s Martin rule imposes an onerous and almost insurmountable burden on individuals seeking to impose 19 liability on labor unions”). See also Lahendro v. New York State United Teachers Ass’n, 88 A.D.3d 1142 (3d Dep’t 2011) (“although a claim for breach of the duty of fair representation may be brought either in court or before an appropriate agency (such as the Public Employment Relations Board), the reality in light of Martin is that most such claims must be brought before an agency to survive early dismissal”). Nevertheless, such policy concerns were presented to and considered by the Martin Court, which countered with this admonishment: But, anomalous or not, such is the law, and this court does not revise statutes, in an effort to eliminate seeming injustices, or to bring the law into accord with modern fact. Whatever reasons be pressed on us for such changes, the power to change is not ours. It is for the Legislature to decide whether or not to overhaul these settled rules, after hearing both sides, and after considering the interests of the general public as well as those of the innumerable members of these associations. 303 N.Y. at 282.6 This express declination of institutional responsibility and plain invitation to the Legislature to address the subject, if it so chooses, was appropriate in 1951 and remains no less so today.7 6 The judicial restraint displayed in Martin is in accordance with this Court’s long-standing jurisprudence. See, e.g., Moses Flores v. The Lower East Side Service Center, Inc., 4 N.Y.3d 363 (2005) (“Our role is to apply the statute as written--not to embellish or expand upon the language selected by the Legislature.”); McCoy v. Feinman, 99 N.Y.2d 295 (2002) (“If the Legislature chooses not to apply date of discovery principles in other professional malpractice settings, this Court should not tread where the Legislature refuses to go.”); People v. Forte, 277 N.Y. 440 (1938) (“We are not concerned with the wisdom of the provision of the statute. As long as it remains as a part of our statutory law it is the duty of courts to enforce it as written. Its 20 This Court has repeatedly declined to abandon precedent in analogous circumstances, i.e., where it involved a policy choice that was readily subject to legislative action, if change was ostensibly necessary. For example, in Matter of Higby, supra, an election rules case, the Court declined to overrule precedent interpreting Section 612(1) of the Election Law, which required a candidate’s designating petition to set forth the assembly district of subscribing witnesses. The rule was criticized as unnecessary, hypertechnical, and disenfranchising. 48 N.Y.2d at 22-23 (Fuchsberg, J., dissenting). Acknowledging that “strong arguments” could be advanced for a less exacting rule, the majority nonetheless found it would be “judicially irresponsible” to overturn its prior interpretation purpose and intent cannot be weakened or nullified in any way. That has always been the attitude of this court.”); Skarpeletzos v. Counes & Raptis Corp., 228 N.Y. 46 (1920) (“Whether the reason for doing so was good or not, it was for the legislature to decide, and it adopted this policy in such plain language that we are not justified in construing the words ‘father or mother’ as if they read ‘each parent’”) (some internal quotation marks omitted); Pratt Institute v. City of New York, 183 N.Y. 151 (1905) (“It is, however, for the legislature to decide what property should be taxed and what should be exempt, and considerations which might control that department of government can have no force with the courts. It is our duty to enforce the command of the law without regard to what we may think of its policy.”); People ex rel. v. Campbell, 145 N.Y. 587 (1895) (“If it seems a harsh and unwise rule that imposes [a controversial tax] . . . it is a subject that should be brought to the attention of the legislature, as courts must enforce the law as written.”). 7 See Salemeh v. Toussaint, 25 A.D.3d 411, 411-412 (1st Dep’t 2006) (“Plaintiff’s argument that the stringent pleading and evidence requirements for maintaining an action against an unincorporated association . . . should be relaxed is more appropriately directed to the Legislature.”). 21 where “deference to the Legislature to enact change, if indeed change there should be, is peculiarly fitting.” Id. at 21, 20.8 In Thornton v. Roosevelt Hospital, 47 N.Y.2d 780 (1979), the court declined to extend the discovery rule to the accrual of strict products liability claims for limitations purposes. The plaintiff, an executor, alleged that the cause of the decedent’s cancerous condition was a chemical compound that had been injected for medical diagnostic purposes some 20 years earlier. Under longstanding precedent, the rule was that the claim accrued for statute of limitations purposes at the time of injection, not later when the disease or injury process started or when it became detectable. Despite powerful policy argument centered on “fundamental justice,” id. at 783-785, the Court ruled that extending the discovery rule to strict products liability actions was a “matter best reserved for the Legislature, and not the courts,” id. at 782.9 8 The legislature subsequently amended the disputed form to remove the election district requirement. See L. 2000, ch. 235, § 1. The Legislature also passed the Election Reform Act of 1992, eliminating the necessity of providing an election district. See Falu v. Wagner, 185 A.D.2d 791 (1st Dep’t 1992). 9 The Court’s decision in Thornton was subsequently superseded by statute, as the Legislature amended CPLR 214 and enacted CPLR 214-c to "provide relief to injured New Yorkers whose claims would otherwise be dismissed for untimeliness simply because they were unaware of the latent injuries until after the limitations period had expired". See Wetherill v. Eli Lilly & Co.(In re N.Y. County DES Litig.), 89 N.Y.2d 506 (1997). CPLR 214-c was enacted to overcome the effect of a line of Court of Appeals, including Thornton, holding that toxic tort claims accrue upon "impact" or exposure even though the resulting illness may not be manifested for a long time thereafter. Id. 22 Likewise, in Codling v. Paglia, 32 N.Y.2d 330 (1973), the court declined to abandon the doctrine of contributory negligence - a target of substantial criticism - in favor of an apportionment of responsibility between the plaintiff and defendant. The Court explained We recognize that the doctrine of contributory negligence has been the target of mounting adverse criticism. Indeed, we have been critical . . . . With full awareness that the doctrine was of judicial rather than legislative origin, we are nonetheless not prepared at this time to substitute some formula of comparative negligence. In our opinion this is a topic now more appropriate for legislative address. Id. at 344-345.10 In short, the principles of stare decisis and the jurisprudential approach of this Court direct that the Martin rule should not be disturbed. If the rule is to be abandoned, it is for the Legislature to accomplish. 10 “In 1975-two years after Codling-New York tort law transitioned from a contributory negligence framework-under which negligence by plaintiff negated any recovery-to a comparative negligence framework, whereby, in general, a plaintiff's recovery may be reduced by his or her degree of responsibility for an accident, but a defendant's liability is not per se extinguished by a plaintiff's partial responsibility. See N.Y. C.P.L.R. § 1411 (effective Sept. 1, 1975).” Kaplan v. Home Depot USA, Inc., 2012 U.S. Dist. LEXIS 113864, at *14-15 (S.D.N.Y. 2012). 23 POINT TWO THE APPELLATE DIVISION CORRECTLY APPLIED THE MARTIN RULE TO THE PLAINTIFF’S DUTY OF FAIR REPRESENTATION CLAIMS A. The Duty of Fair Representation Doctrine Permits Unions to Exercise Broad Discretion It is a fundamental tenet of American labor law that a union is the representative of all of the employees in a negotiating unit, if, and only if, a majority has chosen to be so represented. Because the union is thereupon the exclusive representative of all unit employees, it is bound by the duty of fair representation. Under this doctrine, a union’s discretion to act as representative of the employees is circumscribed by the obligation to refrain from conduct that is arbitrary, discriminatory, or in bad faith. In describing the contours of the doctrine under federal law, decades ago the U.S. Supreme Court explained: Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. 24 Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). Thus, in Vaca v. Sipes, 386 U.S. 171, 192 (1967), the Court held that, consistent with the duty of fair representation, a union may decline to process to arbitration a grievance that it determines to be meritless. In this respect, the duty of fair representation owed to employees represented by public sector unions under New York law is no different. See Civil Service Bar Ass’n v. City of New York, 64 N.Y.2d 188, 196 (1984). Under New York public sector labor law, in order to establish a breach of the duty of fair representation, the plaintiff must show that the union’s conduct was arbitrary, discriminatory, or taken in bad faith. Smith v. Sipe, 67 N.Y.2d 928, 929 (1986); Ponticello v. County of Suffolk, 225 A.D.2d 751, 752 (2d Dep’t 1996); Altimari v. Parker, 189 A.D.2d 982, 983-984 (3d Dep’t 1993). The mere refusal by a union to proceed with a grievance to arbitration or to handle the grievance in a particular way does not itself establish a breach of the duty of fair representation. Sapadin v. Board of Educ. of City of New York, 246 A.D.2d 359, 359 (1st Dep’t 1998); Symanski v. East Ramapo Cent. School Dist., 117 A.D.2d 18, 21 (2d Dep’t 1986). The plaintiff must instead demonstrate that the alleged breach by the union was “deliberately invidious, arbitrary or founded in bad faith.” CSEA, Inc. v. PERB, 132 A.D.2d 430, 432 (3d Dep’t 1987), aff’d, 73 N.Y.2d 796 (1988). Mere 25 mistake or negligence by the union in performing its representational duties, including contract enforcement, does not constitute a breach of the duty of fair representation. Altimari, 189 A.D.2d at 984; Herington v. CSEA, Inc., 130 A.D.2d 961, 961 (4th Dep’t 1987). The plaintiff must show both that the union breached the duty of fair representation and that the employer breached the labor contract. Mohan v. United University Professions, Inc., 127 Misc.2d 118, 121-122 (Sup. Ct. Chautauqua Cty. 1984) (citing Hines v. Anchor Motor Freight, 424 U.S. 554, 570-571 (1976)). And, the plaintiff must prove both prongs in order to prevail against either the union or the employer. Id. at 122 (citing DelCostello v. Teamsters, 462 U.S. 151, 164-165 (1983)). See also Jackson v. Regional Transit Service, 54 A.D.2d 305, 307-309 (4th Dep’t 1976). A grievant’s failure to cooperate with the union’s case preparation is a reasonable basis that can justify the union’s withdrawal of the grievance from arbitration. See Grassel v. PERB, 301 A.D.2d 522, 523 (2d Dep’t 2003). B. The Martin Rule Applies to DFR Claims In the decades since Martin was divided, the unanimous authorization/ratification rule has been uniformly applied in hybrid-breach of contract/duty of fair representation cases. The Fourth Department’s decision below was only the most recent. 101 A.D.3d at 1654. 26 The Third Department’s 2011 decision in Lahendro, 88 A.D.3d 1142, is also of recent vintage. In that case, a long-tenured guidance counselor was charged with misconduct; his union failed to file timely his demand for a hearing, which resulted in his forced retirement pursuant to a settlement agreement with the school district. 88 A.D.3d at 1142-43. The court held that, because the plaintiffs “did not allege, and they acknowledged that they [could not] prove, that all of the individual members of these defendants authorized or ratified the complained of conduct[,]” dismissal based on the Martin rule was proper. Id. at 1144 (citing cases). Accord, Butler v. McCarty, 191 Misc.2d 318, 327 (Sup. Ct. Madison Cty.), aff’d, 306 A.D.2d 607 (3d Dep’t 2003). Prior to its decision in Palladino, the Fourth Department had twice before applied the Martin rule in hybrid-breach of contract/duty of fair representation cases. Walsh v. Torres-Lynch, 266 A.D.2d 817 (4th Dep’t 1999); Saint v. Pope, 12 A.D.2d 168, 176 (4th Dep’t 1961). The Walsh Court explained: The failure to allege that the individual members of the [u]nion authorized or ratified the complained of conduct renders the amended complaint fatally defective as against the [u]nion (see, Martin v. Curran, 303 NY 276; see also, Saint v. Pope, 12 AD2d 168, 171-172; cf., Grahame v. Rochester Teachers Assn., 262 AD2d 963). The Martin rule applies to a cause of action alleging an intentional tort (see, Martin v. Curran, supra; cf., Torres v. Lacey, 3 AD2d 998, 998). It also applies to a cause of action by union members for damages resulting from the union’s failure to prosecute member grievances (see, Saint v. Pope, supra, at 171-172), which failure 27 constitutes a violation of a union’s duty of fair representation with respect to members’ rights under the collective bargaining agreement (see, Herington v. Civil Serv. Empls. Assn., 130 AD2d 961, 962; see also, Rajter v. Local No. 294, 233 AD2d 559, 560). Thus, contrary to plaintiff’s contention, the Martin rule applies to a cause of action alleging breach of duty of fair representation. 266 A.D.2d at 818. Other courts, including the Second Department, have applied the Marin rule to claims that fall within DFR-breach rubric. Scivoletti v. Leckie, 4 A.D.2d 773, 773 (2d Dep’t 1957) (“plaintiffs were not entitled to the recovery of money damages from the defendant local union as a consequence of their unlawful deprivation by the individual defendants of their seniority rights since it was not shown that the general membership participated in the breach of contract or the tort upon which the plaintiff predicated their right to relief . . . or that some fraud, misconduct or bad faith on the part of the membership as a whole resulted in pecuniary injury to the plaintiffs”); Prin v. DeLuca, 218 N.Y.2d 761 (Sup. Ct. Kings Cty. 1961) (where plaintiffs claimed that union defendants were liable for their layoffs allegedly because of their gender and in violation of their seniority rights, failure to comply with the Martin rule rendered the complaint defective). Local 580 is, like most unions, an unincorporated association [R. 63, 215- 229, 233, 260-261, 291]. The Plaintiff asserts that Local 580 breached its duty of fair representation with respect to its handling and disposition of two grievances 28 under the defendants’ labor contract. Where, as here, the action involves a hybrid breach of contract/duty of fair representation claim, the applicability of the Martin rule is clear. Palladino, 101 A.D. 3d at 1654; Lahendro, 88 A.D.3d at 1144; Walsh, 266 A.D.2d at 818. The amended verified complaints do not, however, contain allegations that all members of the Union authorized or ratified the complained-of conduct [R. 260-261, 273, 310]. Moreover, even if the requisite allegations were present, Palladino essentially concedes that he cannot prove unanimous authorization or ratification by the entire Local 580 membership [R. 803-804, 814-815]. See Duane Reade, Inc. v. Local 338, Retail, Wholesale, Dep’t Store Union, 6 Misc.3d 790 (Sup. Ct. N.Y. Cty. 2004), aff’d 17 A.D.3d 277 (1st Dep’t 2005), appeal denied, appeal dismissed, 5 N.Y.3d 797 (2005). Accordingly, the court below correctly granted summary judgment to the defendants. C. Madden Does Not Control DFR Claims Contrary to Palladino’s contention, the Union’s interposition of the Martin defense is not inconsistent with Madden v. Atkins, 4 N.Y.2d 283 (1958), which held quite differently that a plaintiff need not demonstrate unanimous membership approval where, on a breach of contract theory, he challenges his improper expulsion from membership in the union and shows that the membership 29 participated directly in the process and otherwise delegated its disciplinary power under the constitution.11 The Madden plaintiffs were political opponents of the union leadership; internal charges alleging “dual unionism” and other disloyalty misconduct were preferred against the dissidents under the union’s constitution and by-laws. The dissidents were expelled from union membership, following trials that proceeded as follows: At each meeting at which charges were preferred, the union members present elected a trial committee and in each instance that committee found the plaintiffs so charged guilty and voted that they be expelled from the union. The preferring of charges, the election of the trial committees by the membership and the subsequent proceedings were all in accordance with the constitutional provisions of the local. The reports of the trial committees were in each case rendered to a “regular meeting” of he local’s membership and, again in line with constitution provision, the member in each instance affirmatively approved and adopted the trial committees’ determination. Id. at 290. Reviewing the record evidence, however, the Court found “not the slightest support” for the dual unionism charge, id. at 292, and a similar absence of support for the other disloyalty charges, id. at 293. 11 In his brief, Palladino ambiguously suggests that he was “de facto expelled” from Local 580 membership [Brief for Plaintiff-Appellant, p. 33]. There is no support in the record for this assertion, and, in fact, it is untrue. 30 It was in this disturbing context that the Court found a limited exception to, or perhaps sufficient compliance with, the Martin rule. The Court distilled a separate line of wrongful expulsion cases to this principle: Where it is brought about by action on the part of the membership, at a meeting or otherwise, in accordance with the union constitution, the act of expulsion will be regarded as the act of the union for which damages may be recovered from union funds. Where, however, proof of such union action is lacking, the claim for damages against the organization must fail. Id. at 296. The Martin case was distinguished, essentially, on the ground that there were no allegations or evidence of membership involvement in the tortious conduct; in Madden however, the sine qua non of its holding was “the requisite participation of the membership was sufficiently shown to justify liability against the organization, even though not against the individual members.” Id. See also id. at 298 (Desmond, J., concurring) (the rationale for distinguishing Martin is that “when an unlawful expulsion has been voted by the membership at a regularly called meeting, it will be considered to be the act of the union, even though there has not otherwise been any formal authorization or ratification by all the members”). The holding in Madden is a narrow exception to the Martin rule and does not apply to DFR claims. Saint, 12 A.D.2d at 172-173 (distinguishing holding in 31 Madden as having “no analogy” to claims for breach of the duty of fair representation by members alleging the union wrongfully failed to pursue their grievances protesting their discharge under the labor contract); Prin, 218 N.Y.2d at 761 (Madden exception was inapplicable to members’ suit against union for wages lost as a result of gender-based layoffs in violation of their seniority rights). See also Morrissey v. National Maritime Union, 544 F.2d 19, 33 (2d Cir. 1976) (Madden did not severely restrict applicability of Martin rule and only held it “inapplicable to a suit by a union member against a union for damages, arising from a wrongful expulsion”); Building Indus. Fund, 992 F. Supp. at 194 (argument that Madden undercut holding in Martin has been “squarely rejected”); Duane Reade, Inc. v. Local 338, R.W.D.S.U., 3 Misc.3d 405, 411 (Sup. Ct. N.Y. Cty. 2003) (“Madden carved out a very narrow exception to the general rule in Martin”); A. Terzi Prods., 2 F. Supp. 2d at 491 n. 2 (Madden “carved out a narrow exception to the Martin rule”). Palladino’s argument that unanimous membership approval was unnecessary because Local 580’s by-laws delegated authority to the executive board is inconsistent with Martin and its progeny. Palladino cites provisions of the by- laws, which in sum and substance vest decision-making authority in those members voting at a membership meeting and further provides that in the absence of a regular monthly meeting, previously-taken executive board actions become 32 final and binding [Brief for Plaintiff-Appellant, p. 13; R. 968]. The rest of the argument apparently runs that Local 580’s membership delegated its authority to the executive board members [R. 962], who did unanimously take the complained- of action, and thus the Martin requirement was satisfied. This line of argument was, however, expressly rejected in Martin itself and since then has been dismissed by other courts. In construing Section 13 as not effecting a change in the common law requirement of unanimous consent, the Martin Court held that “[n]o agency of one member for another is implied” because “. . . only those members are liable who expressly or impliedly with full knowledge authorized or ratified the specific acts in question.” 303 N.Y. at 280- 282. Other courts have denied attempts to sidestep the Martin rule by plaintiffs’ positing various theories of delegation in lieu of showing unanimous membership action. Duane Reade, Inc. v. Local 338, R.W.D.S.U., 17 A.D.3d 277, 278 (1st Dep’t 2005) (“plaintiff’s reliance solely on the general language of the union’s constitution is insufficient under Martin in the absence of objective facts pleaded to support a finding of explicit authorization or ratification”); Barrett v. New York Republican State Comm., 213 A.D.2d 989, 989 (4th Dep’t 1995) (“The authority of a member or officer of an unincorporated association to bind the association ‘will not be presumed to imply from the existence of a general power to attend to or 33 transact the business, or promote the objects for which the association was formed, except where the debt contracted is necessary for its preservation’”) (quoting McCabe v. Goodfellow, 133 N.Y. at 95-96); Giffords Oil Co., Inc. v. Boss, 54 A.D.2d 555, 556 (2d Dep’t 1976) (“the union membership’s authorization of the strike against plaintiff did not consolidate authorization, participation in and ratification of the specific tortious acts in question”); Duane Reade, Inc., 3 Misc.3d at 411 (finding inapposite “plaintiff’s arguments regarding ‘apparent authority,’ ‘delegation’ and ‘agency,’ as these theories are expressly excluded from a Martin analysis”). D. The Duty of Fair Representation Standard is Incompatible with the Unintentional Tort Exception Palladino also argues that the decision below is in error because it conflicts with cases holding that the Martin rule is inapplicable to unintentional torts [Brief for Plaintiff-Appellant, pp. 35-38]. However, this line of cases is inapposite, as the DFR standard is incompatible with the unintentional tort exception. In Torres v. Lacey, 3 A.D.2d 998, 998 (1st Dep’t 1957) , the First Department held that Martin is not applicable to unintentional torts committed by an agent of the association in the course of performing an essential activity of the association. The Lacey holding continues to be applied in cases such as Piniewski v. Panepinto, 267 A.D.2d. 1087 (4th Dep’t 1999), where the court held that 34 although union member’s intentional tort claim of assault was subject to the Martin rule, his claim against the union for negligence did not require a showing of membership authorization or notification. Id. at 1088. Likewise, in Grahame v. Rochester Teachers Ass’n, 262 A.D.2d. 963 (4th Dep’t), appeal dismissed by 94 N.Y.2d 796 (1999), a negligence claim stemming from the union’s allegedly providing erroneous information to a member regarding her retirement benefits was not subject to the Martin rule. Id. at 963-964. The unintentional tort exception is, however, incompatible with the legal standard applicable to duty of fair representation claims. Rather, the DFR standard is highly analogous to causes of action for intentional tort, which are indisputably subject to the Martin rule. Thus, the DFR standard requires a plaintiff to demonstrate that the union acted arbitrarily or “wholly irrational[ly],” Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991), or engaged in “fraud, deceitful action, or dishonest conduct, or . . . discrimination that [was] intentional, severe, and unrelated to legitimate union objectives,” Mellon v. Benker, 186 A.D. 2d 1020, 1021 (4th Dep’t 1992). It is well established, however, that acts or omissions that amount to negligence do not breach the duty of fair representation. Steelworkers v. Rawson, 495 U.S. 362, 374-375 (1990); Mamorella v. Derkasch, 276 A.D.2d 152, 156 (4th Dep’t 2000) (negligence in the union’s judgment or decision-making does not 35 breach the duty); Mellon v. Benker, 186 A.D.2d 1020, 1020 (4th Dep’t 1992) (“that the union was guilty of mistake, negligence or lack of competence does not suffice for such claim”); Trainosky v. CSEA, Inc., 130 A.D.2d 827, 827 (3d Dep’t 1987) (“that the union was guilty of mistake, negligence, or lack of competence does not suffice for such a claim”). If the Martin rule is to persist under New York law, then it is applicable to claims for breach of the duty of fair representation. Such claims are categorically akin to intentional tort claims and plainly distinguishable from the negligence standard for which an exception has been applied in Lacey and other cases. E. There is No Need to Create a DFR Exception Because the Legislature has Created a Claim for Relief Under the Taylor Law that is Not Subject to the Martin Rule The Court should resist any temptation to create a DFR exception to Martin rule, as there is an alternative right to relief under existing law. Palladino’s contention that applying Martin to his DFR claim would grant the Union unchecked power ignores the alternate course that he chose to forego. Under New York law, a public employee who feels aggrieved by her union’s representational conduct has a choice of forums in which to present the claim. She may either bring an action in court, Civil Service Bar Ass’n v. City of New York, 64 N.Y. 2d 188, 196 (1984), (“the courts in New York have recognized a…duty of fair representation on the part of public sector unions predicated on their role as 36 exclusive bargaining representative”), or present the same allegations in an improper practice charge before the New York State Public Employment Relations Board (“PERB”) pursuant to Civil Service Law §209-a.2(c) (“It shall be an improper practice for an employee organization or its agents deliberately . . . to breach its duty of fair representation to public employees . . .”).12 One advantage to the latter route is the Martin rule is inapplicable in an administrative agency proceeding. See Lahendro, 88 A.D.3d at 1144 (citing Rubinstein, Union Immunity From Suit in New York, 2 N.Y.U. J. L. & Bus. 641, 645-646 (2006)); see also People v. Newspaper and Mail Delivers’ Union, 250 A.D.2d 207, 214 (1st Dep’t 1998) (subsequent enactment of Penal Law provisions rendered Martin inapplicable). Palladino, who has been represented by counsel throughout, chose to press his claim that Local 580 breached its duty of fair representation in this plenary action. But he could have pursued his DFR claim as an improper practice case before PERB, where the Martin rule defense would have been unavailing. That the Plaintiff may have made a tactical error in skipping the administrative agency route is not a basis to deny summary judgment to the defendants. 12 A union’s breach of the duty of fair representation was codified as an improper practice charge in 1990. L. 1990, ch. 467, § 4. There is no indication in the legislative history that the Legislature intended to discard the Martin rule with respect to DFR claims brought in a plenary action.