Matter of O'Brien

In Matter of O'Brien (25 PERB 4631 [1992]) a PERB Administrative Law Judge (ALJ) held that "an employee organization that acts as the agent of the exclusive bargaining agent may itself be held liable for a violation of the duty of fair representation pursuant to [Civil Service Law] 209-a.2(c)." (Matter of O'Brien, supra.) The ALJ reasoned that the plain language of the statute confers liability for breach of the duty of fair representation on the exclusive bargaining agent and any of its agents and that strong policy considerations favor the imposition of such a duty upon an entity which undertakes the actual representation of a grievant in situations such as the present one. (Id.) Most importantly, failing to recognize a duty when an affiliate undertakes representation on behalf of an exclusive bargaining agent could lead to the untenable situation of an exclusive bargaining agent incurring liability for a breach of the duty of fair representation based upon an affiliate's acts (or inaction) while the affiliate faces no consequences. (Id.)