Ken represented the union defendants in Palladino v. CNY Centro, Inc.
, 23 N.Y.3d 140 (2014), an important victory for unions. The New York Court of Appeals upheld the so-called Martin
rule defense and, for the first time, held that it applies to public-sector duty of fair representation claims in New York. Under the common law and Martin v. Curran
, 303 N.Y. 272 (1951), an unincorporated association cannot be held liable unless the plaintiff proves that every member of the organization authorized or ratified the allegedly wrongful conduct. The rule has been widely criticized as antiquated and unfair, but nonetheless it has been a valuable affirmative defense for unions against a variety of state-law claims. Ken successfully argued on stare decisis
grounds that the court should reject the plaintiff’s challenge and leave it to the legislature to address any needed changes in the law. The ruling preserved a lower court’s dismissal of the plaintiff’s duty of fair representation claims against the firm’s client. 101 A.D.3d 1653 (4th Dep't 2012).
Ken has successfully defended unions in several dozen cases against members’ claims alleging breach of the duty of fair representation, violation of federal and state discrimination law, and various state-law torts.
- In the great majority of cases, the firms’ clients prevailed outright, usually at a preliminary stage or through summary judgment motion practice. Published examples include: Smith v. New Venture Gear, Inc., 2008 U.S. Dist. LEXIS 4468 (N.D.N.Y. 2008), aff’d, 320 Fed. Appx. 33 (2d Cir. 2009); Smith v. New Venture Gear, Inc., 2007 U.S. Dist. LEXIS 72945 (N.D.N.Y 2007), aff’d, 319 Fed. Appx. 52 (2d Cir. 2009); Carter v. New Venture Gear, Inc., 2007 U.S. Dist. LEXIS 71695 (N.D.N.Y. 2007), aff’d, 310 Fed. App’x 454 (2d Cir. 2009); Jacque v. Western Regional Off-Track Betting Corp., 16 Fed App’x 52 (2d Cir. 2001); Turgeon v. Operating Engineers, Local No. 98, 2 Fed. App’x 176 (2d Cir. 2001); Cunningham v. Figurilli, 2013 U.S. Dist. LEXIS 19854 (N.D.N.Y. 2013); Ferguson v. New Venture Gear, Inc., 2009 U.S. Dist. LEXIS 78111 (N.D.N.Y. 2009); Burke v. New Venture Gear, Inc., 2008 U.S. Dist. LEXIS 25155 (N.D.N.Y. 2008); and Jones v. DaimlerChrysler Corp., 2006 U.S. Dist. LEXIS 44036 (N.D.N.Y. 2006).
- In other instances, the unions prevailed at trial. See, for example, Gallagher v. IBEW Local Union No. 43, 2008 U.S. Dist. LEXIS 81615 (N.D.N.Y. 2008); Moore v. AFSCME Local 1095 (NYS DHR Case No. 10161809) and Comerford v. Laborers 633 (NYS DHR Case No. 10153846).
- In the remaining handful of cases, Ken negotiated favorable settlements on behalf of the firms’ clients.
Ken has represented employee benefit funds in federal court actions and other proceedings to collect unpaid contributions and related damages. See
, International Union of Operating Engineers Local 98 Health and Welfare Fund v. S & R Corp.
, 95 F. Supp. 3d 1 (D. Mass. 2015); Dow Elec., Inc. v. IBEW Local Union No. 910
, 500 F. Supp. 2d 148 (N.D.N.Y. 2007), aff’d
, 283 Fed. Appx. 841 (2d Cir. 2008). One of these cases reached the U.S. Supreme Court on a matter of appellate jurisdiction. International Union of Operating Eng’rs, Local 98 Health and Welfare Fund v. Ray Haluch Gravel Co.
, 792 F. Supp. 2d 139 (D. Mass. 2011), vacated and remanded, subnom. Central Pension Fund v. Ray Haluch Gravel Co.
, 695 F.3d 1 (1st Cir. 2012), reversed and remanded
, __ U.S. __, 134 S.Ct. 773 (2014), affirmed on remand
, 745 F.3d 1 (1st Cir. 2014).
Ken has extensive experience in advising and representing unions in collective bargaining matters under both the National Labor Relations Act and the Taylor Law. This includes appearing on behalf of statewide and local police unions in multiple rounds of contract negotiations and related interest arbitration proceedings.
Ken regularly practices before the National Labor Relations Board.
- In Novelis Corp., 364 NLRB No. 101 (2016), the Board ruled in the union’s favor, finding that the employer’s numerous and pervasive unfair labor practices had so tainted the outcome of a representation election that traditional remedies were inadequate and a Gissel bargaining order was required.
- In another notable case, Ken represented a truck drivers union in an unfair labor practice proceeding and related federal court litigation that challenged the employer’s attempt to shut down its facility and re-open under a different name. Ken negotiated a comprehensive settlement agreement on behalf of the union and affected employees.
- Ken authored an influential paper, “‘No’ Means ‘No’ When a Party ‘Really’ Says So: The NLRB’s Construed Adherence to the Clear and Unmistakable Waiver Test in Unilateral Charge Cases,” 13 The Labor Lawyer 325 (Fall 1997), that was prominently cited and relied upon in Provena St. Joseph Med. Center, 350 NLRB 808 (2007), in which the Board reaffirmed its commitment to the clear and unmistakable waiver doctrine.
Ken has represented unions in more than one hundred arbitration and administrative proceedings challenging employers’ action in disciplinary and discharge matters and a wide variety of contract interpretation disputes. He also has extensive experience handling actions to compel or stay arbitration proceedings and to confirm or vacate arbitration awards. See
, Dow Elec., Inc. v. IBEW Local Union No. 910
, 500 F. Supp. 2d 148 (N.D.N.Y. 2007), aff’d
, 283 Fed. Appx. 841 (2d Cir. 2008); United Steelworkers v. E.I. du Pont de Nemours & Co.
, 2006 U.S. Dist. LEXIS 79383 (W.D.N.Y. 2006); IBEW, Local 910 v. Roberts
, 992 F. Supp. 132 (N.D.N.Y. 1998).
Ken has extensive experience providing advice and representation to individual employees, including highly compensated executives and professionals.
- Ken has reviewed, drafted, and negotiated hundreds of employment separation agreements.
- Ken has handled many overtime-related matters arising under the Fair Labor Standards Act and the New York Labor Law, including representing plaintiffs in individual, collective, and class-action cases.
- He represented a senior executive in state-court litigation and successful settlement negotiations in connection with an employment contract dispute with the executive’s former employer.
- Ken successfully defended the former executive director of a non-profit human services agency against sexual harassment claims brought in state court by a former subordinate colleague.