Some nurses may be members of a union and enjoy the benefits of that membership, including a representative to help with problems regarding their employer and negotiating work issues and benefits, including staffing, time off and vacation time.
However, not all union members have a positive experience with representation by their union as illustrated in the following case (Kathleen Passante v. New York State Nurses Association, United States District Court, N.D., New York, June 11, 2010).
Kathleen Passante, a nurse at a facility where she was employed for 13 years, was terminated from her position in violation of New York State human rights law and the Americans With Disabilities Act, failing to provide her with “reasonable accommodations.”
Passante notified her union of the matter and requested the union file a grievance with the facility to prevent her termination. That was all the union did, however, according to Passante.
She filed a lawsuit alleging that the union breached its duty of fair representation and asked for damages due to that breach. Although the record in the lower court is not available, Passante’s allegations against the union in the present district court record indicate the union failed to notify her of the step 1 and step 2 grievance hearings, failed to conduct an appropriate investigation of her claims, and failed to offer any evidence at the hearings to show the facility violated its own policies, the collective bargaining agreement, and federal and state law.
Passante alleged that, by failing to act on her behalf as described above, the union breached its duty of fair representation by acting arbitrarily, discriminatorily or in bad faith. In addition, she alleged that the reason she lost the grievances was not because they were not without merit, but because of the union’s failure to inform her that she needed to appear at the hearings and the union’s failure to put on evidence in support of her claims, which stems from the union’s failure to investigate those claims.
The district court evaluated the applicable law and concluded that Passante stated a valid claim against the union for breach of its duty of fair representation. The union, the court said, allegedly failed to meet the minimum requirements in handling Passante’s grievance and that failure was not a “tactical decision but rather an arbitrary omission,” allowing Passante’s case to go forward at that juncture. Thus the court denied the union’s motion to dismiss her claim (“Labor Law: Court Discusses Nurses’ Union’s Legal Duty of Fair Representation,” Legal Eagle Eye Newsletter for the Nursing Profession – July 2010).
It is not known what happened after the district court’s decision in this case, as no further published cases appear in subsequent research. Also, it is not known what “reasonable accommodations” were asked for by Passante. What is clear, though, is that a union must fairly represent all members of the union, and especially so when the union member faces an egregious action from the employer, such as termination.
Most unions do meet their duty of fair representation and it is hoped that if you are a member of a union, you are pleased with how your union meets its obligations.
Some things to keep in mind, however, especially as it concerns your obligations vis-à-vis the union, include:
• Always stay up to date on the obligations contained in your bargaining agreement.
• If you find yourself in a situation in which an employer’s action or decision is adverse to you, seek help immediately from your union representative.
• Seek information from fellow nurse members about how the union handled their requests for help from the union.
• If you find your union representative is not supportive or is not taking steps to help you, seek advice from a nurse attorney or attorney of your choice.
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Nancy Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.