Governor Signs Into Law Major Legislation Narrowing A Unions Duty of Fair Representation

On April 12, 2018, Governor Cuomo signed Chapter 59 of the Laws of 2018 into law which amends the Taylor to narrow a public sector unions duty of fair representation. The amended statute now provides (the underlined portion represents the amendment):

  Improper  employee organization practices. It shall be an improper
   practice for an employee organization or its agents deliberately (a)  to
   interfere  with,  restrain or coerce public employees in the exercise of
   the rights granted in section two hundred two, or to cause,  or  attempt
   to cause, a public employer to do so provided, however, that an employee
   organization  does not interfere with, restrain or coerce public employ-
   ees when it limits its services to and representation of non-members  in
   accordance with this subdivision; (b) to refuse to negotiate collective-
   ly  in good faith with a public employer, provided it is the duly recog-
   nized or certified representative of the employees of such employer;  or
   (c)  to breach its duty of fair representation to public employees under
   this article. Notwithstanding any law, rule or regulation to the contra-
   ry, an employee organization's duty of fair representation to  a  public
   employee it represents but who is not a member of the employee organiza-
   tion  shall be limited to the negotiation or enforcement of the terms of
   an agreement with the public employer.  No  provision  of  this  article
   shall be construed to require an employee organization to provide repre-
   sentation  to  a non-member (i) during questioning by the employer, (ii)
   in statutory or administrative proceedings or to  enforce  statutory  or
   regulatory  rights, or (iii) in any stage of a grievance, arbitration or
   other contractual process concerning the evaluation or discipline  of  a
   public employee where the non-member is permitted to proceed without the
   employee organization and be represented by his or her own advocate. Nor
   shall  any  provision  of this article prohibit an employee organization
   from providing legal,  economic  or  job-related  services  or  benefits
   beyond  those  provided  in the agreement with a public employer only to
   its members.

This statute was reportedly enacted in anticipation of the U.S. Supreme Court's decision in Janus which may ultimately hold that it is a violation of the First Amendment for states (such as New York) to mandate that employees pay "agency fees" if they chose not to become union members. The Governor signed this statute into law at UFT headquarters, here, and reportedly stated that this statute “is the first step of the resistance.”

Duty of Fair Representation Does Not Preempt NYS Human Rights Law

Figueroa v. Foster, ____F.3d____(2d Cir. July 17, 2017), is an interesting decision. The Duty of Fair Representation outlaws unions actions that are arbitrary, discriminatory or in bad faith. But the NYS Human Rights law also outlaws discrimination. Is it preempted? No, says the 2d Circuit, in an exhaustive opinion reasoning, in part:

As noted above, the anti‐discrimination roots of the duty of fair representation are long‐established. In Vaca, the Supreme Court observed that the “statutory duty of fair representation was developed [in the 1940s] in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act [(“RLA”)], and was soon extended to unions certified under the [NLRA].” 386 U.S. at 177 (citations omitted). As this Court more recently explained, “[a] union breaches its duty of  fair representation if its actions with respect to a member are arbitrary,  discriminatory, or taken in bad faith.” Fowlkes, 790 F.3d at 388. The purpose of  the duty of fair representation, therefore, can easily be said to encompass a  purpose of prohibiting discrimination. Indeed, the Local and the Commissioner agree that the NYSHRL serves the  same purpose of prohibiting discrimination as does the NLRA’s duty of fair representation. Each serves to reinforce the anti‐discriminatory purpose of the other. This mutual service is not a conflict such that the duty of fair representation and the NYSHRL “cannot be reconciled or consistently stand together.” In re MTBE Prod. Liab. Litig., 725 F.3d at 102. Instead, the two work in tandem to protect union members from invidious discrimination in all of its forms. This opinion addresses only the Local’s claim that the duty of fair representation preempts the NYSHRL in its entirety when applied to unions acting in their capacity as collective bargaining agents. We do not purport to address every potential conflict between the NYSHRL and federal law. For  example, NYSHRL claims are subject to a one‐year statute of limitations, see N.Y.  Exec. Law § 297(5), whereas private duty of fair representation claims are subject to a six‐month statute of limitations, see 29 U.S.C. § 160(b); DelCostello v. Int’l Bhd. 13 of Teamsters, 462 U.S. 151, 154‐55 (1983), and overlapping Title VII claims filed  with the SDHR are subject to a 300‐day statute of limitations, see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78‐79 (2d Cir. 2015). We need not decide today which of these statutes of limitations applies to NYSHRL claims against unions because the present appeal does not raise facts that implicate any  such conflict. We hold only that the NYSHRL presents no potential conflict so incompatible with federal labor laws that all of its provisions must fall. We leave for other cases to resolve more specific conflicts between the NYSHRL and federal law as they arise.  

So, why is this significant? First, as indicated by the 2d Circuit itself, different statute of limitations apply to DFR claims than to discrimination claims. But, second and more importantly, much more deference is paid to union actions under the DFR standard than under a discrimination standard. Undoubtedly, that is why  the plaintiff here was the President of a large labor union seeking to declare that in DFR cases alleging discrimination, state law was preempted, leaving the DFR standard which is more favorable towards unions.

Stay tuned as this issue is not over. Law review commentary would be most welcome.