Clark v. County of Cayuga

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court should have granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff has no right to sue his former employer directly for its alleged breach of a collective bargaining agreement that it entered into with the union of which plaintiff was a member (see, Matter of Board of Educ. v Ambach, 70 NY2d 501, 508, cert denied sub nom. Margolin v Board of Educ., 485 US 1034). Unless the agreement provides otherwise, only when the union fails to represent an employee fairly may the employee go beyond the agreed upon procedure and commence a breach of contract action directly against the employer (see, Matter of Board of Educ. v Ambach, supra, at 508). The complaint does not allege and plaintiff made no showing that the union failed to represent him fairly. Furthermore, given the broad language of the grievance and arbitration provisions of the agreement, the issue of plaintiff’s right to be paid for accumulated sick leave pursuant to the agreement involves an interpretation of the agreement; thus, it is immaterial that plaintiff has since retired (see, Matter of Board of Coop. Educ. Servs. v Central Council of Teachers, 96 AD2d 598, 599). Therefore, the order appealed from is modified by granting defendant’s cross motion for summary judgment dismissing the complaint and by vacating the final ordering paragraph. In light of our determination, we do not address the remaining arguments advanced by defendant. (Appeal from Order of Supreme Court, Cayuga County, Corning, J.—Summary Judgment.) Present—Denman, P. J., Balio, Fallon, Callahan and Davis, JJ.