                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 12, 2015                    520555
________________________________

In the Matter of DONNA
   SCARPINATI DeOLIVEIRA,
                    Petitioner,
      v                                      MEMORANDUM AND JUDGMENT

NEW YORK STATE PUBLIC EMPLOYMENT
   RELATIONS BOARD et al.,
                    Respondents.
________________________________


Calendar Date:    September 18, 2015

Before:    Garry, J.P., Rose, Lynch and Devine, JJ.

                              __________


      Cooper Erving & Savage LLP, Albany (Phillip G. Steck of
counsel), for petitioner.

      David P. Quinn, Public Employee Relations Board, Albany,
for New York State Public Employment Relations Board, respondent.

      Richard E. Casagrande, New York State United Teachers,
Latham (Laura H. Delaney of counsel), for Cairo-Durham Teachers
Association and others, respondents.

      Girvin & Ferlazzo, PC, Albany (Ryan P. Mullahy of counsel),
for Cairo-Durham Central School District, respondent.

                              __________


Rose, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of respondent Public Employment Relations
Board which dismissed petitioner's improper employee organization
practice charge.
                              -2-                520555

      In August 2007, respondent Cairo-Durham Central School
District (hereinafter District) appointed petitioner to a
three-year probationary position in the elementary education
tenure area, a position represented by respondent Cairo-Durham
Teachers Association (hereinafter Association). After giving
birth to a child in July 2009 and taking a period of unpaid
maternity leave, petitioner returned to teaching full time. In
March 2010, the District abolished four positions in the
elementary education tenure area, and petitioner was notified
that she would be terminated at the end of the school year
because the period of unpaid maternity leave that she took at the
beginning of the 2009-2010 school year affected her seniority
status such that she became one of the four least senior teachers
in her tenure area. Petitioner subsequently approached the
Association to file grievances on her behalf, but the Association
concluded that she had no viable claims and that it would take no
action against the District. She later learned that, prior to
the layoffs, the Association agreed with the District's decision
to exclude at least two sixth grade teachers from the elementary
education tenure area – namely, respondents Peter Goodwin and
Erin Murphy – both of whom were hired after petitioner.

      Petitioner subsequently filed an improper practice charge
with respondent Public Employment Relations Board (hereinafter
PERB). The charge alleged, among other things, that the
Association did not fairly represent petitioner's interests (see
Civil Service Law § 209-a [2] [c]) because it willfully failed to
investigate her concerns regarding the impact of her unpaid
maternity leave on her seniority status, falsely represented to
her that it consulted with an attorney on her behalf and
intentionally withheld from her the so-called "clandestine
agreement" it made with the District to protect Goodwin and
Murphy from being laid off. Following a hearing, an
Administrative Law Judge (hereinafter ALJ) dismissed the charge.
Petitioner filed exceptions to the ALJ's findings and, upon
review, PERB affirmed. Petitioner then commenced this CPLR
article 78 proceeding seeking review of PERB's determination, and
Supreme Court transferred the matter to this Court pursuant to
CPLR 7804 (g).
                              -3-                520555

      Our review of a PERB determination is limited to whether it
is supported by substantial evidence, that is, whether there is a
basis in the record allowing for the conclusion that "PERB's
decision was legally permissible, rational and thus not arbitrary
and capricious" (Matter of Chenango Forks Cent. Sch. Dist. v New
York State Pub. Empl. Relations Bd., 21 NY3d 255, 265 [2013]; see
Matter of City of New York v New York State Pub. Empl. Relations
Bd., 103 AD3d 145, 148-149 [2012], lv denied 21 NY3d 855 [2013];
Matter of Manhasset Union Free School Dist. v New York State Pub.
Empl. Relations Bd., 61 AD3d 1231, 1233 [2009]). "Notably, in
making a substantial evidence determination, we do not 'weigh the
evidence or assess the credibility of the testimony presented'"
(Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO
v New York State Pub. Empl. Relations Bd., 2 AD3d 1197, 1198
[2003], quoting Matter of Romaine v Cuevas, 305 AD2d 968, 969
[2003]).

      In our view, there is substantial evidence in the record
supporting PERB's determination that the Association did not
breach its duty of fair representation owed to petitioner.1 To
establish such a claim, "there must be a showing that the
activity, or lack thereof, which formed the basis of the charges
. . . was deliberately invidious, arbitrary or founded in bad
faith" (Matter of Civil Serv. Empls. Assn. v Public Empl.
Relations Bd., 132 AD2d 430, 432 [1987], affd 73 NY2d 796 [1988];
accord Matter of Higgins v La Paglia, 281 AD2d 679, 681 [2001],
appeal dismissed 96 NY2d 854 [2001]). Here, petitioner has not
made this showing regarding any of her specific allegations. To
begin, her contention that the Association willfully failed to
adequately investigate the District's exclusion of the time that
she was on unpaid maternity leave from its calculation of her


    1
        The Association, Goodwin and Murphy assert that
petitioner's unfair representation claim is barred by the
doctrine of collateral estoppel (see De Oliveira v Cairo-Durham
Cent. School Dist., US Dist Ct, ND NY, 1:11-CV-393 [NAM/RFT],
Mordue, J., 2014). However, the doctrine was not raised during
the administrative process and we decline to apply it (see Matter
of Washington v New York State Off. of Children & Family Servs.,
55 AD3d 1117, 1118 [2008]).
                              -4-                520555

seniority is belied by the record. Petitioner admitted that she
met with Association representatives on multiple occasions
regarding her concerns, and Justin Karker, the Association's
president, testified to the substantial investigation that
followed. Karker stated that, before he informed petitioner, in
writing, of the Association's rationale and ultimate decision not
to process her grievance, he, among other things, consulted with
the Association's Executive Committee and Peter Stelling, a Labor
Relations Specialist employed by New York State United Teachers
(hereinafter NYSUT). While Karker told petitioner that he would
consult with a NYSUT attorney regarding her allegations, which he
did not do, petitioner offered no proof that his
misrepresentation was intentional or that he relied on Stelling's
advice in bad faith. Indeed, Karker testified that he considered
Stelling to be the Association's "counsel" when it came to
assessing teacher grievances.

      Petitioner's further argument that the Association
represented her in bad faith by making a "clandestine agreement"
with the District to wrongly exclude Goodwin and Murphy from the
elementary education tenure area at her expense finds no support
in the record. The Association's assent to the District's
transfer of Goodwin and Murphy to other tenure areas was hardly
arbitrary, as neither teacher was specifically certified as an
elementary educator. Furthermore, while it is true that the
Commissioner of Education, in his ruling on a separate appeal of
petitioner's termination, determined that Goodwin and Murphy
should have been included in the elementary education tenure area
for the purpose of layoffs, there is no evidence that the
decision not to do so was motivated by animus toward petitioner
or favoritism toward Goodwin and Murphy.2 At worst, the
Association's agreement with the District regarding the treatment
of Goodwin and Murphy, and its attendant failure to pursue
petitioner's grievance about it, was an honest mistake, and "the
fact that a union is guilty of mistake, negligence or lack of


    2
        In any event, the Commissioner determined that, even if
Goodwin and Murphy were included on the elementary education
seniority list, petitioner still would have been the least senior
of the three.
                              -5-                  520555

competence does not suffice [to prove] a[n unfair representation]
claim" (Braatz v Mathison, 180 AD2d 1007, 1008 [1992] [internal
citation omitted]; see Ahrens v New York State Pub. Empls. Fedn.,
AFL-CIO, 203 AD2d 796, 798 [1994]).

      To the extent that petitioner's remaining arguments are
properly before us, we have reviewed them and find them to be
without merit.

     Garry, J.P., Lynch and Devine, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
