Eugene Palladino, Appellant,v.CNY Centro, Inc., et al., Respondents.BriefN.Y.February 18, 2014To be Argued by: ROBERT LOUIS RILEY (Time Requested: 30 Minutes) APL-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. REPLY 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: September 23, 2013 -i- TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 SUR-REBUTTAL STATEMENT OF FACTS ......................................................... 5 (a) The October 5, 2007 "call-in" incident resulting in discipline .......................... 5 (b) The August 19, 2008 “unnecessary delay - late pullout” incident resulting in termination .................................................................................... 14 ARGUMENT ........................................................................................................... 19 POINT I. NO LEGISLATIVE ACTION IS REQUIRED IN ORDER FOR THIS COURT TO RULE THAT THE UNANIMOUS RATIFICATION RULE EXPRESSED IN MARTIN IS INAPPLICABLE IN THE CONTEXT OF A BREACH OF DUTY OF FAIR REPRESENTATION LAWSUIT ........................ 19 (a) The Madden Decision ...................................................................................... 19 POINT II. THE ANCIENT COMMON-LAW RULE OF UNANIMOUS RATIFICATION EXPRESSED IN MARTIN IS OUTDATED AND WAS SUPERSEDED BY THE DECISION OF THIS COURT IN MADDEN .............. 20 (a) The ancient common-law pleading and proof requirement of unanimous ratification is outdated and should be judicially abandoned by this Court….. .............................................................................................. 20 (b) The Union has admitted that the executive board acted pursuant to the express terms of the CBL .......................................................................... 22 POINT III. BREACH OF DUTY OF FAIR REPRESENTATION IS NOT STRICTLY AN INTENTIONAL TORT BUT CERTAINLY MAY RISE TO THE LEVEL OF AN INTENTIONAL TORT................................................................. 22 (a) Breach of duty of fair representation ............................................................... 22 -ii- (b) The Union’s and Centro's arguments concerning the applicability of the unanimous ratification rule set forth in Martin to the facts of this case are irrational and in derogation of public policy .............................. 25 POINT IV. THE COMPLAINT CLEARLY STATED THAT THE UNION AUTHORIZED THE CONDUCT COMPLAINED OF AND SET FORTH A CAUSE OF ACTION FOR BREACH OF DUTY OF FAIR REPRESENTATION AND BREACH OF CONTRACT ....................................... 25 POINT V. THE NISI PRIUS COURT CORRECTLY DENIED CENTRO’S AND THE UNION’S MOTIONS FOR SUMMARY JUDGMENT ............................................................................................................ 28 POINT VI. PALLADINO WAS NOT REQUIRED TO APPEAL THE UNION'S DECISION NOT TO TAKE EITHER GRIEVANCE TO ARBITRATION TO THE INTERNATIONAL ........................................................................................ 30 POINT VII. PALLADINO WAS NOT REQUIRED TO ACCEPT RE- EMPLOYMENT UNDER THE TERMS OF THE PROPOSED MEMORANDUM OF AGREEMENT/SETTLEMENT ........................................................................ 30 SUMMARY OF THE ARGUMENT ...................................................................... 32 CONCLUSION ........................................................................................................ 35 -iii- TABLE OF AUTHORITIES CASES. AG Capital Funding Partners, LP v. State Street Bank and Trust Co., 5 NY3d 582 (2005) ................................................................................................... 26 Celardo v. Bell, 222 Ad2d 547 (2nd Dept 1995) ...................................................... 29 Di Mola v. Local Union 808, Intern. Broth. of Teamsters, Chauffeurs and Warehousemen of America, 95 Misc. 2d 910 (N.Y. City Civ. Ct. 1978) ........... 23, 24 EBC, I, Inc. v. Goldman Sachs & Co., 5 NY3d 11 (2005) ........................................ 26 Fischer v. Melville Fire Dist., 2008 WL 583821 (N.Y. Sup 2008) .......................... 23 Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979) ............... 28 Greenberg v. Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974) ............................ 28 Jackson v. Reg'l Transit Serv., 54 AD2d 305 (4th Dept.1976) ................................... 1 Leon v. Martinez, 84 NY2d 83 (1994) ............................................................. 25, 26 Madden v. Atkins, 4 NY 2d 283 (1958) ................................................................... 34 Matter of Civil Service Bar Assn. Local 237, Int. Brotherhood of Teamsters v. City of New York, 64 NY2d 188 (1984) ............................................ 24 Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3d Dept 1981) .......................................................................................................... 28 Rovello v. Orofino Realty Co., 40 NY2d 633 (1976) ............................................. 26 Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) ................ 28 Stockman v. Slater Bros. Cloak & Suit Coat Co., 182 N.Y.S. 815 (App. Term 1920)… .................................................................................................. 30 Weiss v. Garfield, 21 AD2d 156 (3rd Dept 1964) ..................................................... 29 Winegrad v. New York University Medical Center, 64 NY2d 851 (1985) ............. 28 -iv- Wiseman v. Knaus, 24 AD2d 869 (2nd Dep’t 1965) ............................................... 29 Zuckerman v. City of New York, 49 NY2d 557, 562 (1980) ................................... 28 ADMINISTRATIVE DECISIONS In re Nassau Educational Chapter, 11 P. E.R. B. 3019 (1978) .................................. 23 In re Auburn Administrators Ass’n, 11 P.E.R.B. 4563, aff’d, 11 P.E.R.B. 3141 (1978) ............................................................................................ 23 In re CSEA, 22 P.E.R.B. 7518 (1989) ....................................................................... 23 In re East Ramapo Teacher’s Ass’n, 11 P.E.R.B. 3066 (1978) ................................. 23 In re Elmira Teachers Ass’n, NYSUT, 13 P.E.RB. 3113 (1980) .............................. 23 In re Professional Firefighters Association (Bidgham), 22 P.E.R.B. 3021 (1990) ... 23 In re Public Employees Federation (St. George), 18 P.E.R.B. 3005 (1985) ............. 23 STATUTES CPLR 3211 (a)(7) ...................................................................................................... 25 CPLR Rule 3212 (b) ................................................................................................. 28 TREATISE 52 NY Jur. 2d Employment Relations § 338 ............................................................. 30 53 NY Jur. 2d Employment Relations § 526 ............................................................. 23 Black’s Law Dictionary 96 [5 th ed 1979] .................................................................. 24 LAW REVIEW ARTICLES Rubinstein, Union Immunity From Suit In New York, New York University Journal of Law & Business, pgs. 666-668 (2006) .................................................................. 21 Page 1 of 36 PRELIMINARY STATEMENT It is respectfully submitted, that a hypertechnical application in this case of the unanimous ratification rule of law expressed by the Court in Martin, divorced from the reality of the facts, would result in a gross miscarriage of justice. In this regard, if the irrational arguments of Centro and the Union, concerning the requirement of pleading and proof of unanimous ratification by all members of an unincorporated association, are adopted by this Court, in the context of an unincorporated association labor organization sued for breach of duty of fair representation, then it is respectfully submitted that the judicially evolved doctrine of "duty of fair representation" will be unenforceable in connection with private sector union members state law claims and, that public sector union members will be relegated to proceeding before the Public Employees Relations Board. This flies directly in the face of the Appellate Division Fourth Department ruling in Jackson v. Reg’l Transit Serv. 54 AD 2d 305 (4th Dept. 1976). It is respectfully submitted that the exception to unanimous ratification expressed by the Court in Madden, where elected union officials have been delegated with authority by the union membership to act on their behalf, pursuant to the express (not general) terms of the Union’s Constitution and By- Laws is clearly applicable in this case. Furthermore, it is respectfully submitted Page 2 of 36 that by delegating such authority in the Constitution and By-Laws the Union “opted out” of the ill-conceived Martin rule of immunity from suit for “intentional torts absent unanimous ratification by all members of an unincorporated association labor organization”. If this Court holds, that the Madden exception to unanimous ratification is applicable to an unincorporated association labor organization in a breach of duty of fair representation case, it will bring the law of the State of New York into accord with the salient decisions of United States Supreme Court in this area of the law. Furthermore, the arguments advanced by the Union and Centro in the Responding Briefs amount to a perversion of the judicially evolved doctrine of "duty of fair representation”. In this regard, Centro and the Union have argued that the “duty” imposed on a Union to fairly represent a union member in a grievance proceeding is actually a "shield" from liability for the alleged breach of that "duty". They did so by arguing that the conduct complained of must rise to the level of an intentional tort before liability for breach of the “duty” of fair representation can be imposed. And therefore, they argue, that since it is an intentional tort, there must be unanimous ratification as expressed in Martin before liability can attach for breach of that duty. This is an example of circular reasoning and that is not the law. Page 3 of 36 A breach of the duty of fair representation is not strictly an intentional tort but certainly may rise to the level of being an intentional tort. Liability can be imposed if the conduct of the union was arbitrary, capricious, perfunctory, irrational, or in bad faith. The Union’s and Centro's position actually promotes mediocrity and condones incompetency as the norm in representation and, it is respectfully submitted, is therefore in derogation of public policy. According to the Union and Centro, if the ineffective representation that a union member receives in connection with a grievance that has been filed, after having been fired from his employment of 24 years and 11 months, is arbitrary, capricious, perfunctory or irrational, that it is apparently “not actionable” as long as all it was not “intentionally” arbitrary, capricious, perfunctory, irrational, ineffective representation. If a union cannot be held accountable for the misfeasance, malfeasance, and nonfeasance, of its elected union officials absent intent, there is little if any incentive for that elected union official to do anything other than to go through the motions in prosecuting a grievance and making a decision on whether or not to take the grievance to arbitration, which is exactly what the Union did in the present case. The discretion afforded a Union in making a decision, however, concerning which matters to take arbitration, is not unfettered discretion. And the abuse of that discretion as a consequence of, inter alia, arbitrary, capricious, Page 4 of 36 perfunctory, irrational, or bad faith conduct leading up to that decision, and in making that decision, on the part of the union, constitutes a breach of the duty of fair representation. Whether the Union breached its duty of fair representation in this case is a question of fact for a jury. In this regard, a jury will determine whether Palladino was guilty of “misrepresentation” in connection with the call-in on October 5, 2007 and whether the discipline imposed was warranted under the circumstances, and if not (Centro breached the terms of the CBA), whether the Executive Board abused its authority (was arbitrary, capricious, irrational, perfunctory, and acting in bad faith) when the Executive Board “investigated” the matter, and decided not to take the grievance to arbitration. A jury will also determine whether Palladino was guilty of misconduct or misrepresentation in connection with the August 19, 2008 unnecessary delay-late pullout/misrepresentation charges and whether termination after 24 years 11 months service was warranted under the circumstances (Centro breached the terms of the CBA), and if not, whether the Executive Board abused its authority (was arbitrary, capricious, irrational, perfunctory, and acting in bad faith) when the Executive Board “investigated” the matter, and decided not to take the grievance to arbitration. Page 5 of 36 SUR-REBUTTAL STATEMENT OF FACTS It is clear from a review of the Record and the Respondents’ Briefs submitted on this Appeal that both Centro and the Union had utter disregard for the terms of the CBA, Centro's Rules and Regulations, and the truth, concerning the discipline, and termination from employment, of Palladino. In this regard, it is clear from a review of the Record that Palladino was targeted and ultimately terminated from employment for disagreeing with Centro and demanding the receipt of benefits he was entitled to under the CBA. And that the Union simply threw Palladino to the wolves. Palladino was terminated five months after commencing a declaratory judgment action upon which he ultimately prevailed. A simple perusal of Centro's Rules and Regulations confirms that Palladino did not commit a "Misrepresentation" as defined in the Rules and Regulations in connection with either the October 5, 2007 "call-in" incident or the August 19, 2008 "unnecessary delay-late pullout" charge. In fact, it is respectfully submitted that a jury could reasonably conclude that Palladino was intentionally set up by Centro on August 19, 2008, for termination. (a) The October 5, 2007 "call-in" incident resulting in discipline. The grievance filed regarding the October 5, 2007 "call in"-"misrepresentation" charge for each discipline that was imposed, was submitted to Centro on October 30, 2007. [RA pg. 245] the letter from Union Business Agent Charles Page 6 of 36 Watson, to Palladino dated July 1, 2008, clearly states that the "Union" made a decision not take the discipline matter to arbitration.[RA pg. 972] The testimony given by Executive Board members, and specifically, then Union President Tyrone Burke, [RA pg. 1442, EBT Transcript pg. 88, lines 1-5] and Executive Board member Michael Aiello [RA 1442, EBT Transcript pg. 17, ln. 25] was that the Executive Board voted not to take the grievance to arbitration and that the vote was unanimous. Further Burke testified that the Executive Board did not submit the decision as to whether or not to take either grievance to arbitration to the union membership for a vote, because it was not something the Executive Board felt it was required to do. [RA 1442, Burke EBT Transcript pgs.55-56] On October 15, 2007, Palladino was disciplined by Centro. The company alleged that Palladino had committed "misrepresentation" in connection with an October 5, 2007 "call-in". Palladino called in three hours before his scheduled report time and informed the dispatcher "I'm not 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."[RA pg. 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 Page 7 of 36 as the driver on the charter trip to Washington, D.C. the trip began at approximately 8:00 AM on Friday, October 5 and the charter returned to Syracuse on Monday, October 8, 2007. Centro suspended Palladino on October 9, 2007 without pay for five days and placed him on “lifetime probation” for “misrepresentation”. He was advised in writing that "[a]nother incident of misrepresentation will result in termination from employment" [RA pgs.232, 243, 244]. Centro's Rules and Regulations provision on "Misrepresentation", however, states; "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, that employee has committed a deliberate act with the intent to defraud. False statements of representation with regard to work records and documents, medical insurance, health benefits, medical history, or any information pertaining to an employee's skill, qualifications or work status, shall constitute a serious misconduct". [RA pg. 914] Palladino’s statement on October 5, 2007 was to simply notify Centro dispatch that he would not be available for work that day. It was, however, Palladino's intent to take an unexcused absence without pay, as provided for by Centro's Rules and Regulations Absenteeism Provision, [RA pg. 911] Policy on Page 8 of 36 Attendance, [RA Pgs.941, 944] and the Collective Bargaining Agreement. [RA pg. 837] Palladino has maintained from the outset that whether he was called out of town the night before or not is completely irrelevant to the intent of his phone call. [RA pg. 993, Exh. P33 (CD recording and transcripts of 04.15.08 Meeting) pg. 33, Lines 16 -18]. [RA pg. 993, Exh.P33 (CD recording and transcripts of 04.15.08 Meeting) pg. 44, Lines 16-20] [RA pg. 993, Exh.P33 (CD recording and transcripts of 04.15.08 Meeting) pg. 45 Lines 1-16] Furthermore, Centro Rules and Regulations provision "Absenteeism" states in relevant part; "It is the employee’s responsibility to (a) promptly notify his or her supervisor when absence is unavoidable. Such notifications should be made by the employee whenever possible". [RA pg. 911] Watson and Lambright suggested that Palladino would have been “better off” by just not showing up, which clearly violates this provision of the Rules and Regulations. [RA pg. 993, pg. 45 Lines 18-20, pg. 46 Lines 1-3, pg. 52 Lines 6-11]. Not calling in and/or showing up at all, as suggested by Palladino’s representatives Watson and Lambright, would have resulted in a discipline charge associated with Palladino having a “miss-out”. Page 9 of 36 Palladino's work record reflects, [RA pg. 953] that he did not have an absentee problem, excessive or otherwise. Testimony by Centro officials John Renock, [RA pg. 1442, Renock EBT, pg. 87, Lines 22-25, pg. 88, Lines 9 -11] Joseph DeGray, [RA pg. 1442, DeGray EBT, pg. 65, Lines 15 -18] Gary Nordheim, [RA pg. 1442, Nordheim EBT, pg. 81, Lines 14-18] and Union officials Charles Watson, [RA pg. 1442, Watson EBT, pg. 153, Lines 21-25, pg. 154 Lines 1-3] Tyrone Burke, [RA pg. 1442, Burke EBT, pg. 115, Lines 10-15] and William Montroy [ RA pg. 1442, Montroy EBT pg. 96, Lines 5-12] confirmed that there is no provision in the CBA or Centro's Rules and Regulations prohibiting secondary employment by an employee of Centro. In fact Martin and several other Centro employees also worked part time for Quality Coach. Additionally, there is no provision in the CBA or Centro's Rules and Regulations with regard to placing an employee on "lifetime probation". By placing, and allowing Palladino to be placed on "lifetime probation", Centro and the Union were in clear violation of Provision 3.07 (b) "Discipline" of the CBA, which states in relevant part; "For the purpose of imposing discipline or termination, review of the employee’s record shall not exceed the past eighteen (18) months of work, unless mutually agreed upon or less this is not consistent with the statutory laws". [RA pg. 836] Page 10 of 36 Palladino, however, never received a "letter of probation". Consequently, he was not on probation on August 19, 2008. Union Business Agent Tyrone Burke (then Union President), [RA pg. 1442, Burke EBT, pg. 159 lines 24-25, pg. 160 lines 1-2] and Executive Board member Michael Aiello [RA pg. 142, Aiello EBT, pg. 124-24-25, pg. 125 lines 1-2] testified that a "Personnel Report" is not a "Letter of Probation". Centro employees are required to sign as a matter of receipt, any "personnel Report" entered into their file, regardless of the nature of the report. [RA pg. 73 CBA pg. 9, Hearings Between Employee/Employer /Union, Section 3.05 (a)(2) which states: "At the conclusion of a hearing in which disciplinary action is imposed, the employee will sign that part of the Personnel Report which indicates whether a Union official was present, and will sign the appropriate line indicating receipt of a copy of the report". The Union filed a grievance on behalf of Palladino protesting the discipline. [RA pg. 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. [RA pg. 232, 246] The Union requested arbitration. The Union failed to mention in its Responding Brief, however, that on April 28, 2008 John Renock sent an e-mail to Joseph DeGray which states: "Arbitration is Page 11 of 36 scheduled for 7/14, although Watson will probably drop the grievance long before then". [RA pg. 800] The Union stated in its Responding Brief that, [I]n 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. [RA pgs. 233, 234] The Union failed to mention, however, that Palladino informed both Watson and Lambright that Bailey and Simpson had informed Palladino that they did not want to be involved in Palladino's dispute with Centro. [RA pg. 993, pg. 29 Lines 8-20, pg. 30 Lines 1-8, pg. 51 Lines 1-2, pg. 68 Lines 16-20]. [RA pg. 1255] [RA Pgs.1313,1315,1319,1321,1323,1325,1326,1328]. [RA pg. 1442, Burke EBT, pg. 88 Lines 19-25, pg. 89, Lines 1-4]. [RA pg. 1442, Aiello EBT, pg. 56 Lines 12-23]. Despite their requests, Watson and Lambright attempted to contact both Bailey and Simpson, with Attorney Lambright even going so far, as to identify himself as Palladino's attorney, [RA pgs. 1255, 1328] contradicting the explanation that he was not Palladino’s attorney given by Lambright to Palladino during the Page 12 of 36 April 15, 2008 meeting. [RA pg. 993, Transcript pg. 17, Lines 19-20, pg. 18, Lines 1-5]. Lambright again affirmatively admitted to Palladino that he was the Union’s Attorney. [RA pg. 930, Attorney’s Meeting dated 11.24.08, pg. 61, Lines 1-7]. Charles Watson in his Affidavit submitted is support of the Union’s motion for summary judgment stated the following: “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 [RA pg. 235]. Palladino was notified by letter from Watson dated July 1, 2008 [RA pgs. 236, 249]. Watson, however, brought only partial and/or misleading information from “his” and “the Company’s” investigation to the Executive Board. [RA pg. 1442, Burke EBT, pg. 87 Lines 7-11, pg. 88 Lines 19-25, pg. 89 Lines 1-4]. [RA pg. 1442, Aiello EBT, pg. 56 Lines 12-23, pg. 63 Lines 5-11]. CBL Article XII, Section III states: The Executive Board shall constitute the “Arbitration Review Board” and shall by a majority vote may decide whether or not a grievance shall be taken to the arbitration step of the Grievance procedure. Page 13 of 36 [ RA pg. 962] and CBL Article XXVI “Votes” Section III which states: 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. 968] This is highly significant, under the facts of this case in the context of Centro's and the Union's unanimous ratification argument, because a regular Executive Board meeting was held on Friday, June 27, 2008. Monthly membership meetings were held on the second Wednesday of each month, [RA pg. 217] therefore, no regular monthly meeting would have taken place for a membership vote, prior to the July 1, 2008, notification from Watson to Palladino that the Union was withdrawing the grievance. Therefore, the Executive Board ensured through its own conduct, that the lack of "unanimous ratification" it is relying on as a complete defense in this case, was secured. It is a clear from a review of the Record that Palladino fully cooperated with the “alleged” investigation conducted by the Union, and that the Union’s allegation that he did not cooperate, was just another excuse for not taking the matter to arbitration, which conveniently could also be used as a defense in the event Palladino sued the union for breach of its duty of fair representation. Page 14 of 36 (b) The 2008 “unnecessary delay - late pullout” incident resulting in termination. 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" decided not to take the termination grievance to arbitration. On August 20, 2008, Palladino was taken out of service due to an alleged late pullout and unnecessary delay during his Call-A- Bus run the previous day. The Union failed to mention in its Responding Brief, that on August 20, 2008, Palladino was still working his Syracuse University Tripper and was on the road, when Nordheim issued the notice to dispatchers at 8:09 a.m., that “Until further notice, Eugene Palladino is out of service pending investigation”. [RA pg. 1136] Furthermore, Nordheim sent a DVR (Digital Video Recorder) Request Form Notice via e-mail at 7:57 a.m. on August 20, 2008. [RA pg. 1137] Clearly, Nordheim would not have had time to receive and watch the bus surveillance video, and send out the notice to dispatchers, in the 12 minutes between these events. Palladino was taken out of service in violation of the Collective Bargaining Agreement, Local 580 Constitution and By-Laws and Centro’s Rules and Page 15 of 36 Regulations provisions. [RA pg. 876, CBA Article III, Charge 3.04 Suspension/Removal From Service]. [RA pg. 877, CBA Article III, Charge 3.07 Discipline] [ RA pg.878, CBA Article III, Charge 3.07 (g)]. [RA pg. 956, Union Constitution and By-Laws, Objectives ]. [RA pg. 928, Centro Rules and Regulations pg. 40, Discipline Code, Suggested Code of Discipline.] Centro’s principle and most serious charge was the aforementioned misrepresentation as allegedly revealed on a bus video tape. It is the Union and Centro, however, that have actually committed misrepresentation, by miss- stating not only what Palladino said to the Call-A-Bus dispatcher on August 19, 2008, but the intent of the notification, as well. The Union, as well as Centro Labor Relations Manager Gary Nordheim quotes Palladino as saying, “I just wanted to let you know, I am down about 15 minutes - I was delayed due to construction on Thompson Road”. [RA pgs. 237, 684] The transmission, however, is actually as follows: Palladino: "1405 Call-A-Bus to Call-A-Bus base ". Dispatch: "Go ahead". Palladino : "Yeah Henry, I just wanted to let you know, ah, I'm about 15 minutes down, pause delayed due to construction on Thompson Road". The words “I was” were inserted by Nordheim in the “pause” before the completion of the statement to deliberately make it appear as though Palladino was blaming the entire reason for being behind schedule on the construction on Thompson Road. [RA pg. 1441 DVD Page 16 of 36 Bus Video Time Stamp – 9:32:20 thru 9:32:47]. The Union and Centro want the Court to believe that Palladino indicated that he was late, solely as a result of an approximate 2:00 minute construction delay on Thompson Road. The Union and Centro fail to mention that Centro already knew Palladino was late by virtue of his two prior notifications to Call-A Bus dispatchers. The first, by cell phone, [RA pgs. 682, 698] at 11:58 a.m. to notify Call-A Bus dispatch that he could not locate his assigned vehicle, and again at 12:04 p.m., by Centro’s radio system, when he was leaving Centro’s facility by calling “in service”. Both of those notifications were acknowledged by Call-A-Bus dispatchers. [RA pg. 1441 (DVD Bus Video Time Stamp - 9:10:17 thru 9:10:27 and DVD Bus Video Time Stamp – 9:32:20 thru 9:32:47] The Union and Centro fail to acknowledge that Palladino notified Call-A-Bus dispatch in accordance with Centro’s Rules and Regulations [RA pg. 915, Operating Procedures.] The argument that Palladino was covering up the reason he was late to avoid discipline, or to avoid his work duties, is belied by the indisputable facts. There was never any concern indicated by Call-A-Bus dispatchers with regard to Palladino’s lateness. Likewise, there was never any request by Palladino for assistance, with regard to his days work. [RA pg. 1441 DVD Bus Video Time Stamp - 9:10:17 thru 9:10:27 and DVD Bus Video Time Stamp – 9:32:20 thru 9:32:47] Page 17 of 36 In the Union’s description of what it deemed, a circuitous and unnecessarily long route to get to his first scheduled pickup in East Syracuse, New York, the Union failed to mention that former Business Agent, and Call-A- Bus driver, Charles Watson, Executive Board members and Centro drivers, Michael Aiello and Dominic LoSurdo; Executive Board President and Shop Mechanic, William Montroy; and even Chief Executive Officer, Frank Kobliski, testified that they would have each taken a different route from each other. [RA pg. 1442, Watson EBT, pg. 78, Lines 11-25, pg. 77, Lines 1-10, pg.81, Lines 7-11]. [RA pg. 1442, Aiello EBT, pg. 186, Lines 18-25, pg. 187, Lines 1-12]. [RA pg. 1442, LoSurdo EBT, pg. 133, Lines 1-25, pg. 134, Lines 1-23]. [ RA pg. 1442, Montroy EBT, pg. 196, Lines 17-22]. [RA pg. 1442, Kobliski EBT, pg. 149, Lines 9-25, pg. 150, Lines 1-25]. Palladino had been operating the same Call- A-Bus service run for almost 4 years prior to August 19, 2008. He had the right to select the route and he made the decision of which route to take based on his assessment of the situation. The Union stated in its Responding Brief that following the investigatory meeting on September 4, Centro and the Union began settlement discussions in an effort to save Palladino’s job. And that on multiple occasions, Watson met with management officials Gary Nordheim, Joe DeGray, and John Renock and Page 18 of 36 negotiated a draft settlement that would avert termination of Palladino’s employment [RA pg. 238] The Union failed to mention, however, that portions of the negotiated draft settlement were in direct violation of the Collective Bargaining Agreement with regard to Union Seniority Bidding Rights and Grievance procedures. [RA pgs. 874, 875, 876, Article II, Grievances]. [RA 887, Article XIII, Section 13.01, (a), (b)(1)(2)(3), (c), (d), (e), (i), (m)(2), (o), (p); Special Provisions for Operators (all) Sign Up; Section 13.02 (1)(a) (e)(2) Bids and Hold Downs]. [RA pg. 891, Section 13.04 (b)(1),(2),(5) Day Off Work]. [RA pg. 891, Section 13.06 (b) Charter Work]. The Memorandum of Agreement was/is draconian. It required the Plaintiff to give up union seniority (Call-a-Bus), agree to a six month unconditional probationary period of employment, give up his rights under the CBA to take the matter to arbitration, and agree to a period of “lifetime probation” which Centro had no contractual right to impose under the terms of the CBA. Although Palladino and Watson had discussed possible terms of a settlement agreement, it was not until Palladino questioned Watson on September 10, 2008 about Palladino’s right to grieve the terms of the proposed settlement, that Watson told Palladino the Company did not want Palladino to be able to use the Page 19 of 36 grievance procedure. [RA 1437, September 10, 2008 Evening Phone Call, pg. 2, Lines 18-20] Palladino was taken out of service (suspended) without pay on August 20, 2008. The Review for termination meeting was scheduled for September 16, 2008. Palladino was told he did not need to be there and he did not feel that anything he might have to say would make any difference anyway. During the period between August 20, 2008 and September 16, 2008, Palladino managed to provide income for his family by accepting work from his secondary employer, Quality Coach Lines, Inc. On September 16, 2008 Palladino was in New York City working for Quality Coach. The nature of Palladino's work for Quality Coach took Palladino out of town, and in some cases, kept him out of town for multiple days at a time, and Watson was aware of this. [RA 1442, Palladino EBT pgs. 131-135] ARGUMENT POINT I. NO LEGISLATIVE ACTION IS REQUIRED IN ORDER FOR THIS COURT TO RULE THAT THE UNANIMOUS RATIFICATION RULE EXPRESSED IN MARTIN IS INAPPLICABLE IN THE CONTEXT OF A BREACH OF DUTY OF FAIR REPRESENTATION LAWSUIT. (a) The Madden Decision. This Court, as evidenced by the holding in Madden, necessarily determined that it did not take an act of the legislature in order to modify the common law rule Page 20 of 36 of unanimous ratification by all the members of an unincorporated association and hold that an unincorporated association labor organization is liable for the actions of its duly elected officials where they have been delegated with the authority to act under a Union’s Constitution and By-Laws. It is respectfully submitted that if this Court could rule in Madden, that the rule of unanimous ratification did not apply in the context of a union expulsion case, then this Court certainly can rule that it does not apply in the context of a breach duty of fair representation lawsuit where duly elected officials delegated with authority to act on behalf of the membership made the decision not to take a grievance arbitration. POINT II. THE RULE OF UNANIMOUS RATIFICATION EXPRESSED IN MARTIN IS OUTDATED AND WAS SUPERSEDED BY THE DECISION OF THIS COURT IN MADDEN. (a) The ancient common-law pleading and proof requirement of unanimous ratification is outdated and should be judicially abandoned by this Court. “While at first blush effectively granting total immunity to unions might be considered shocking, the ruling is understandable on a certain level in that members of an unincorporated association could face individual liability at common law. (fn. 106) However, by statute in New York members of an unincorporated Association could face individual liability only after a judgment is unsatisfied. (fn. 107) Thus under New York law strict common-law doctrine is somewhat tamer in that individuals are in essence only secondarily liable. (fn. 108) the Court of Appeals in Martin V. Curran did not discuss this fact. In any event, under New York law individual members of unincorporated associations the can face personal liability. Thus, there is an element of common sense and equity inherent in the common-law rule in that liability can only be imposed on individuals who ratified and approved of the conduct at issue. Page 21 of 36 Significantly, however, union members in the private sector are effectively insulated from lawsuits in their individual capacity under section 301 (b) of the National Labor Relations Act, as amended, (fn. 109) because they cannot be held responsible for acts they committed while representing the union-even if the activity in question was not authorized by the union. (fn.110) The same rule appears to apply in state courts in the private sector. (fn.111) personal liability of individual bargaining unit members in the public sector under New York law is not fully developed, but the trend seems to follow the federal law, even though 29 U.S.C. Sec. 185 does not strictly apply to the public sector or to state courts. (fn. 112) Therefore, whatever utility Martin v. Curran once had with respect to unincorporated associations, it does not seem to make sense today-at least not in the labor union context. Additionally, many labor unions today function in ways similar to corporations, and many directly employ large numbers of employees and professionals, such as accountants, labor negotiators and lawyers. (fn. 112) Under current law, there appears to be no logical reason to apply different standards to state and federal claims. If the Supreme Court felt that the common law was outdated in 1922, it is difficult to understand how that same principle of common law is not outdated under state law.” (Rubinstein, Union Immunity From Suit In New York, New York University Journal of Law & Business, pgs. 666-668 (2006)) It is respectfully submitted, the fact that the Appellate Division Fourth Department has ruled that the Martin rule of unanimous ratification does not bar a negligence action against an unincorporated association, but that the Martin rule bars an action for breach of duty of fair representation against an unincorporated association labor organization, makes absolutely no sense. This is especially so since under both the Federal Law and the Law of the State of New York the union is exclusive representative of a union member in connection with the prosecution of grievances. Page 22 of 36 (b) The Union has admitted that the executive board acted pursuant to the express terms of the CBL. The Union has admitted in its Responding Brief that the Executive Board acted pursuant to the CBL and that the decisions, not take either grievance to arbitration, were unanimous. It is respectfully submitted, the fact that both of the decisions were unanimous, given the indisputable facts, is evidence of their irrational nature and not the contrary. In this regard, if anybody on the Executive Board had disagreed with the decisions not to take the matters to arbitration one might be able to infer that there was at least some kind of rational discussion about the matters. The Union, however, in an effort to paint Palladino in the worst light possible, has gone to great lengths to point out that the decisions were "unanimous". POINT III. BREACH OF DUTY OF FAIR REPRESENTATION IS NOT STRICTLY AN INTENTIONAL TORT BUT CERTAINLY MAY RISE TO THE LEVEL OF AN INTENTIONAL TORT. (a) Breach of duty of fair representation. “In order to establish a breach of the duty of fair representation, it is necessary to show that the union's conduct was arbitrary, discriminatory, or in bad faith (Gaines v. New York City Transit Authority, 528 F. Supp. 2d 135 (E.D. N.Y. 2007); Hickey v. Hempstead Union Free School Dist., 36 A.D.3d 760, 829 N.Y.S.2d 163, 216 Ed. Law Rep. 575 (2d Dep't 2007); Butler v. McCarty, 306 A.D.2d 607, 762 N.Y.S.2d 129, 178 Ed. Law Rep. 906 (3d Dep't 2003); Grassel v. Public Employment Relations Bd., 301 A.D.2d 522, 753 N.Y.S.2d 522, 173 Ed. Law Rep. 912 (2d Dep't 2003), as amended on reargument, (Apr. 16, 2003)) or show evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives. (Mamorella v. Derkasch, 276 A.D.2d 152, 716 N.Y.S.2d 211 (4th Dep't 2000); Baker v. Thompson, 194 Misc. 2d 116, 750 Page 23 of 36 N.Y.S.2d 486, 171 Ed. Law Rep. 907 (Sup 2002)… In the context of the duty of fair representation, actions of a union are “arbitrary” only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside of the wide range of reasonableness as to be irrational. (Oparaji v. United Federation of Teachers, 418 F. Supp. 2d 139 (E.D. N.Y. 2006); Bryant v. Verizon Communications, Inc., 550 F. Supp. 2d 513 (S.D. N.Y. 2008); Smith v. Sipe, 67 N.Y.2d 928, 502 N.Y.S.2d 134, 493 N.E.2d 237 (1986) (53 N.Y. Jur. 2d Employment Relations § 526) In the matter of In re Nassau Educational Chapter, 11 P. E.R. B. 3019 (1978) the Public Employees Relations Board articulated the standard where breach of duty of fair representation is claimed as follows: "the obligation of [fair representation] is violated when an employee organization, either by reason of improper motives or grossly negligent or irresponsible conduct, has failed to consider or evaluate a grievance complaint presented to it.” (See also, In re Professional Firefighters Association (Bidgham), 22 P.E.R.B. 3021 (1990); In re CSEA (Adams), 22 P.E.R.B. 7518 (1989); In re Public Employees Federation (St. George), 18 P.E.R. B. 3005 (1985); In re Elmira Teachers Ass’n, NYSUT, 13 P.E.RB. 3113 (1980); In re Auburn Administrators Ass’n, 11 P.E.R.B. 4563, aff’d, 11 P.E.R.B. 3141 (1978); In re East Ramapo Teacher’s Ass’n, 11 P.E.R.B. 3066 (1978). A union's conduct may be considered arbitrary if it fails to address or investigate the merits of its member's claim or addresses the claim in a perfunctory manner. (Fischer v. Melville Fire Dist., 2008 WL 583821 (N.Y. Sup 2008); Di Mola v. Page 24 of 36 Local Union 808, Intern. Broth. of Teamsters, Chauffeurs and Warehousemen of America, 95 Misc. 2d 910 (N.Y. City Civ. Ct. 1978). "Arbitrary. Means in an ‘arbitrary’manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic; Cornell v. Swisher County, Tex.Civ.App., 78 S.W. 2d 1072, 1074. Without fair, solid, and substantial cause; that is, without cause based upon the law, U.S. v. Lotempio D.C.N.Y. 58 F. 2d 358, 359; not governed by any fixed rules or standard. Ordinarily, ‘arbitrary’ is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principal and one not founded in the nature of things. Huey v. Davis, Tex.Civ.App. 556 S.W.2d 860, 865.” (Black’s Law Dictionary 96 [5 th ed 1979]) 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). In the present case, it is respectfully submitted that a jury could find that the actions of the Union were arbitrary, and so far outside the range of reasonableness as to be irrational, without finding that the Union intentionally sought to harm Palladino. The Union did not care what happened to Palladino. In this regard, it is Palladino's position that Centro intentionally targeted him and that the Union did nothing to protect his rights in connection with either the discipline or termination grievances. Page 25 of 36 (b) The Union’s and Centro’s arguments concerning the applicability of the unanimous ratification rule set forth in Martin to the facts of this case are irrational and in derogation of public policy. The argument has been made on this Appeal by Centro and the Union that the worse the conduct by the Executive Board the more protection the Union is afforded. In this regard, the argument is that if the union intentionally breaches its duty of fair representation then it automatically receives immunity from suit because of the ruling in Martin concerning unanimous ratification. Given the facts of this case and the law the argument is irrational and in derogation of public policy. POINT IV. THE COMPLAINT CLEARLY STATED THAT THE UNION AUTHORIZED THE CONDUCT COMPLAINED OF AND SET FORTH A CAUSE OF ACTION FOR BREACH OF DUTY OF FAIR REPRESENTATION AND BREACH OF CONTRACT The Appellate Division Fourth Department in its Memorandum stated in pertinent part "…[T]hat plaintiff has failed to even plead the Union's conduct was authorized or ratified by the entire membership of the Association. We agree.” “When assessing the adequacy of complaint in light of a CPLR 3211 (a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff the benefit of every possible favorable inference. (Leon v. Martinez, 84 NY2d 83, 87). Page 26 of 36 Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss. (EBC, I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19) further, any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence (see Rovello v. Orofino Realty Co., 40 NY2d 633, 635-636, AG Capital Funding Partners, LP v. State Street Bank and Trust Co., 5 NY3d 582, 591). The inquiry is limited to whether a plaintiff has a cause of action, not whether he has stated one (see Rovello, 40 NY2d at 636) In the present case, 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...” [RA pg 972, Watson letter to Palladino dated July 1, 2008] 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 Page 27 of 36 Union had made a decision not to proceed to arbitration with respect to the plaintiff’s wrongful termination… [RA pg 975, Watson letter to Palladino dated December 12, 2008] It is respectfully submitted that, one could reasonably infer from the pleading, that Palladino’s receipt of a letter on Union Letterhead, signed by the Union Business Agent, stating that the “Union” had made a decision not to take the matter to arbitration, that the Union’s Business Agent was “authorized” to send the letter and that the decision not to take either matter to arbitration was therefore “authorized” by the entire Union membership. It goes without saying that a litigant and his Attorney have an obligation to be truthful with the court. Palladino was aware that the Executive Board had not taken either grievance to the entire union membership for a vote (decision) on whether or not to take either grievance to arbitration. Consequently, Palladino could not plead unanimous ratification and was not going to do so just to fulfill an alleged pleading requirement. Additionally, since Madden carved out an exception to the unanimous ratification rule of Martin, Palladino did not have to plead and does not have to prove "unanimous ratification". Page 28 of 36 POINT V. THE NISI PRIUS COURT CORRECTLY DENIED CENTRO’S AND THE UNION’S MOTIONS FOR SUMMARY JUDGMENT. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957)). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985)). CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law that the cause of action or defense has no merit. The evidence submitted in support of the movant must be viewed in the light most favorable to the nonmoving party. (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990)). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979)). Page 29 of 36 On a motion for summary judgment the court will accept as true the opposing parties evidence and any evidence of the movant that favors the opposing party (Weiss v. Garfield, 21 AD2d 156 (3rd Dept 1964). An appellate court can search the record and grant summary judgment for the non-movant (see, Wiseman v. Knaus, 24 AD2d 869 (2nd Dep’t 1965) If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied (Celardo v. Bell, 222 Ad2d 547 (2nd Dept 1995) In the present case, contrary to the statements set forth in Centro’s Brief Palladino did not “dump” anything on the Justice Murphy. Palladino was not free to pick and choose what to submit in opposition to Centro’s and the Union’s motions given their aggressive defense in this case. The evidence submitted directly rebuts each and every allegation made by Centro and the Union in this case. Justice Murphy did not complain about anything having been “dumped” on the court. He searched the record. Palladino's affidavit in opposition to the motion was 37 pages in length. Palladino also supplied the affidavits of Stephen Bailey and Charles Simpson. There were 23 depositions conducted in this case. The deponents were questioned about 94 exhibits prepared by Palladino including documents and audio and video recordings. The CDs and DVDs that were provided to Justice Murphy were meticulously indexed. It is respectfully Page 30 of 36 submitted that Palladino met his burden in opposing the motions for summary judgment and that Justice Murphy was correct to deny Centro's and the Union’s motions. POINT VI. PALLADINO WAS NOT REQUIRED TO APPEAL THE UNION'S DECISION NOT TO TAKE EITHER GRIEVANCE TO ARBITRATION TO THE INTERNATIONAL. A plain reading of the seven sections of the ATU Constitution and General Laws (RA pgs.177-181), immediately preceding section 23 “Appeals” relied on by the Union before the Appellate Division clearly indicates that the section cited has no application to the circumstances of this case. Furthermore, there is no procedure set forth in the Union’s CBL that required Palladino to appeal to the International the Union’s decisions not to take the grievances to arbitration. (RA pgs.954-970) POINT VII. PALLADINO WAS NOT REQUIRED TO ACCEPT RE- EMPLOYMENT UNDER THE TERMS OF THE PROPOSED MEMORANDUM OF AGREEMENT/SETTLEMENT. “As a general rule, a wrongfully discharged employee may be bound to accept the employer's offer of re-employment in the same or a similar position in order to reduce the damages, where such offer may be accepted without prejudice to the rights of the employee under the original contract of employment. (Stockman v. Slater Bros. Cloak & Suit Coat Co., 182 N.Y.S. 815 (App. Term 1920).” (52 NY Jur. 2d Employment Relations § 338) Page 31 of 36 In the present case Palladino had no obligation to accept the terms of the proposed “Memorandum of Agreement”. First, he did not commit the misconduct/misrepresentation complained of. Second, portions of the negotiated draft settlement were in direct violation of the CBA with regard to Union Seniority Bidding Rights and Grievance procedures. [RA Pgs.874, 875, 876, Article II, Grievances]. [RA 887, Article XIII, Section 13.01, (a), (b)(1)(2)(3), (c), (d), (e), (i), (m)(2), (o), (p); Special Provisions for Operators (all) Sign Up; Section 13.02 (1)(a) (e)(2) Bids and Hold Downs]. [RA pg. 891, Section 13.04 (b)(1),(2),(5) Day Off Work]. [RA pg. 891, Section 13.06 (b) Charter Work]. The Memorandum of Agreement was/is draconian. It required the Palladino to give up union seniority (Call-a-Bus), agree to a six month unconditional probationary period of employment, give up his rights under the CBA to take the matter to arbitration, and agree to a period of “lifetime probation” which Centro had no contractual right to impose under the terms of the CBA. It is respectfully submitted, given the circumstances of this case, the fact that the Union would entertain such an agreement and expect that Palladino would accept the terms of the agreement, is clear evidence of bad faith on the part of the Union. Page 32 of 36 SUMMARY OF THE ARGUMENT Although the issue before this Court is a relatively narrow issue of law, it is obviously a very important issue, and it was necessary for Palladino to address the facts and other spurious allegations made by Centro and the Union more particularly in the Briefs, in order to give this court a complete picture of the magnitude of wrongs committed by Centro and the Union and the harm inflicted thereby. The Union’s refusal to take either matter to arbitration given the facts and circumstances of the allegations surrounding Palladino’s alleged "misrepresentation" on either occasion was so far beyond the range of reasonableness as to be "irrational". The Union’s failure to take these matters to Arbitration, given all of the circumstances, however, was not just arbitrary - but a despicable act of indifference. Centro and the Union have walked hand-in-hand throughout the course of this litigation. Like two peas in a pod. Centro has argued that the Union did not breach its duty of fair representation. The Union has argued that Centro did not breach the terms of the CBA. The argument that the unanimous ratification rule expressed in Martin, which the Appellate Division Fourth Department embraced, is a complete defense in this case, could have been raised on a motion to dismiss at the outset of the Page 33 of 36 litigation. Centro and the Union, however, spent tens of thousands of dollars to defend this action. Centro's attorneys were paid with taxpayer dollars. The Union's attorneys were paid with the funds of the Union. Palladino paid Union dues for 24 years and 11 months. It seems obvious that Centro and the Union, with virtually unlimited financial resources, decided to litigate this matter with the belief that sooner or later Palladino would simply have to give up. Palladino, however, did not give up. In retrospect, it was perhaps providential that this matter was not dismissed pursuant to a pre-answer motion, because this Court now has all the facts before it, and the facts of this case clearly demonstrate the egregious conduct of Centro, the terrible injustice Palladino has suffered, and how insidious the failure on the part of a Union to fulfill a “duty” imposed upon it by law, to “fairly” represent its members can be. Although the road to this Court was arduous it was necessary to travel, not just for Palladino, but for all similarly situated individuals. This case clearly demonstrates how important access to the court is, where it is claimed that a Union, which is the exclusive representative of a union member in connection with the prosecution of grievances, has breached its duty to fairly represent that union member in connection with the prosecution of those grievances. Page 34 of 36 As a consequence of Centro's breach of contract and the Union's breach of its duty of fair representation Palladino has been deprived of five years of salary, denied pension benefits, and significantly, lost his entitlement to the receipt of lifetime health insurance benefits. And the union did nothing to protect Palladino's entitlement to those benefits that he worked for over 24 years to secure. The ancient common-law rule of unanimous ratification expressed in Martin is not, and cannot be allowed to be, a bar to an action for breach of duty of fair representation. Although the Madden case was a union expulsion case, this Court recognized as much when it rejected the union's unanimous ratification argument and stated: “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 v. Atkins, 4 NY 2d 283, 296 (1958)). Page 35 of 36 CONCLUSION Contrary to Centro’s convoluted argument it is clear that the Appellate Division Fourth Department did not address any of Centro’s or the Union's arguments other than application of the unanimous ratification rule set forth in Martin. The court below clearly did not find that the Union was entitled to dismissal of the DFR claims or that Centro was entitled to dismissal of the breach of contract claims. Palladino did not fail to exhaust any administrative remedies. Palladino clearly did not have to appeal anything to the International Union. If anything, based on this Record it is Palladino who was entitled to summary judgment on the breach of contract claims and DFR claims, if anyone, and not Centro or the Union. The proposition advanced by Centro and the Union, concerning General Associations Law § 13 and the requirement of pleading and proof of unanimous ratification, is wholly inconsistent this Court's ruling in the Madden case and the decisions of the 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, the Plaintiff- Appellant respectfully requests that this Court issue a Decision and Order, reversing the Appellate Division Fourth Department's Memorandum and Order appealed from, and directing further proceedings consistent with the Decision of Page 36 of 36 this Court on this Appeal, of all remaining 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: September 23, 2013 Respectfully submitted, _____________________ Robert Louis Riley, Esq. Attorney for Plaintiff-Appellant 120 E. Washington St., Suite 325 Syracuse, NY 13202 Telephone: (315) 254-4233 Facsimile: (315) 476-5208