Kenneth L. Wagner

With over 25 years of experience, Ken Wagner is widely recognized by union leaders and corporate executives as a highly capable attorney for labor and employment work before federal and state courts, administrative agencies and arbitration tribunals.  Ken is listed in Best Lawyers in America (Litigation – Labor and Employment) and Super Lawyers (Upstate New York Edition).

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Kenneth L. Wagner
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Areas Of Practice
Education
  • Syracuse University College of Law (J.D., cum laude, 1990)
  • University of California, Los Angeles (B.A., with departmental honors in philosophy, 1984)
  • Trinity College, Dublin, Ireland (Visiting Student, 1980-81)

Bar & Court Admissions
  • New York State Courts (1991)
  • U.S. Supreme Court (2012)
  • U.S. Court of Appeals, Second Circuit (2000)
  • U.S. Court of Appeals, First Circuit (2011)
  • U.S. District Court, Northern District of New York (1993)
  • U.S. District Court, Western District of New York (1993)
  • U.S. District Court, Eastern District of New York (2014)

Significant Representations
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, e.g., 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, e.g., 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.

Publications
  • Our Deal Trumps My Bargaining Rights Only if I Said So: The Board’s Reaffirmation of Its Waiver Doctrine in Unilateral Change Cases, 25 ABA Journal of Labor & Employment Law 1, Fall 2009
  • The Developing Law Law, 6th Edition, 2012, Chapter Editor
  • The Developing Labor Law, 5th Edition, 2006, Editor
  • The Developing Labor Law, 4th Edition, 2001, Associate Editor
  • The Developing Labor Law, Cumulative Supplement, Editor-in-Chief, 2004-2005, Associate Editor, 1998-2003, 2007-2010, Chapter Editor (1998-2016), and Contributing Editor, 1995-1997
  • “No” Means “No” When a Party “Really” Says So: The NLRB’s Continued Adherence to the Clear and Unmistakable Waiver Doctrine in Unilateral Change Cases, 13 The Labor Lawyer 325, Fall 1997

Speaking Engagements
  • October 24, 2014, NYSBA CLE Conference, Latham, NY, "NLRA Limitations on the Scope of Workplace Policies”
  • May 14, 2010, NLRB Region 3/NYSBA/Cornell University-ILR Conference, Depew, NY, “Recent Developments on Critical Labor Relations Issues Before the NLRB — Unilateral Changes: Clear and Unmistakable Waiver or Contract Coverage?”
  • March 3, 2009, DLL Midwinter Meeting, San Diego, CA, “Our Deal Trumps My Bargaining Rights Only if I Said So: The Board’s Reaffirmation of Its Waiver Doctrine in Unilateral Change Cases”
  • May 20, 2005, PERB/Cornell University-ILR Conference, Tarrytown, NY, “Reaching a Settlement Without Interest Arbitration — A Perspective from the Union Side”
  • May 9, 2003, NLRB Region 3/NYSBA/Cornell University-ILR Conference, Depew, NY, “The NLRB and the National Labor Relations Act: Recent Developments in the Law”
  • February 18, 2003, DLL Midwinter Meeting, Puerto Vallarta, Mexico, “What Should the Bargaining Rights of a Discriminatory Successor Employer Be?”
  • January 17, 2002, CNY Chapter, IRRA, LeMoyne College, Syracuse, NY, “Arbitration Skills Workshop”
  • March 23, 2000, CNY Chapter, IRRA, LeMoyne College, Syracuse, NY, “Technology and Emerging Topics in Labor Law”
  • January 5, 2000, Onondaga County Bar Association, Syracuse, NY “An Introduction to Certain Aspects of the National Labor Relations Act”
  • February 3, 1997, DLL Midwinter Meeting, Puerto Vallarta, Mexico, “‘No’ Means ‘No’ When a Party ‘Really’ Says So: The NLRB’s Continued Adherence to the Clear and Unmistakable Waiver Doctrine in Unilateral Change Cases”
  • November 14, 1996, New York State Bar Association Program, Albany, NY, “Labor and Employment Law for the Corporate Counselor and General Practitioner: Basics of Employee Compensation”
  • May 25, 1993, Cornell University, NYS School of Industrial and Labor Relations, Ithaca, NY, “Employee Participation Programs after Electromation, Inc., 309 NLRB 990 (1992)”

Affiliations
  • American Bar Association (Labor and Employment Law Section
    • Committee on the Development of the Law under the National Labor Relations Act (Co-Chair, 2003-2006, Midwinter Meeting Program, Co-Chair, 2000-2003)
  • New York State Bar Association (Labor and Employment Law Section)
  • Onondaga County Bar Association
  • Northern District of New York Federal Court Bar Association
  • Legal Services of Central New York (Board of Directors, President, 2000-2002, Member, 1997-2002)
  • Central New York Chapter, Labor and Employment Research Association
  • AFL-CIO Lawyers Coordinating Committee