The Law of Wrongful Discharge

Unions and the Duty of Fair Representation

Posted by Bradley Glazier | Feb 16, 2016 | 0 Comments

The Supreme Court of the United States has long recognized that a union has duty to act as the exclusive representative of all of the employees within its bargaining unit. See Steele v. Louisville and Nashville R. Co., 323 U.S. 192 (1944). As a bargaining unit's sole, exclusive representative, a union has the duty to fairly represent the bargaining unit's interests.

In later decisions, the scope of a union's duties have expanded to activities such as collective bargaining agreements, contract negotiations, and grievance administration. See Vaca v. Sipes, 386 U.S. 171 (1967).

Although negligent processing of a grievance is not sufficient to trigger a breach of the duty of fair representation, a union's "arbitrary, discriminatory, or bad faith" conduct will violate the duty of fair representation.  This blog post explores common questions about a union's duty of fair representation to its members. 

When does the union's conduct become arbitrary, discriminatory, or in bad faith? 

The Supreme Court of Michigan has defined arbitrary conduct as " Fixed or arrived at... without reference to principles, circumstances, or significance..." Essentially, the court is saying that arbitrary conduct is "decisive but unreasoned." Goolsby v. City of Detroit, 358 N.W. 2d at 870 (Mich. 1984).

Bad faith means "an intentional act or omission undertaken dishonestly or fraudulently." Id. at 870.

Discriminatory conduct means any unequal treatment due to a union member's status within a protected class. For example, discrimination based on race, gender, age, religion, etc.

Michigan courts are generally inclined to construe arbitrary conduct broadly in favor of the employee.

What is a collective bargaining agreement?

A collective bargaining agreement is a contract negotiated between the union and its bargaining unit's employer. The agreement dictates the terms of which union members will be employed by the employer. Generally the agreement covers everything from compensation to grievance procedures and guidelines

What is a grievance procedure?

Generally, the collective bargaining agreement will state the grounds for which an employer may terminate a union employee. Usually, an employer must have just cause to terminate a union employee. When an employee has been terminated, and he or she believes that her termination occurred in breach of the collective bargaining agreement, the employee may file a grievance. 

What should I expect when my grievance is filed?

The collective bargaining agreement will state the process by which a grievance is handled. Normally, a grievance is handled through a "step" process where the union will perform an investigation into the reasons behind an employee's termination. If the union pursue's the matter to the final step, it may arbitrate the employers decision to terminate the employee.

If the union decides not to pursue the matter through the final step of the grievance process, the decision cannot be made arbitrarily. If the employee feels that the union's decision was arbitrary, discriminatory, or in bad faith, the employee may file a lawsuit.

Do I have to exhaust all of my union remedies before filing a lawsuit?

Yes, an employee must exhaust all of his or her union remedies before filing a lawsuit. Clayton v. Int'l Union, UAW, 451 U.S. 679 (1981).

In certain circumstances, the court will allow an employee to bypass the union's internal remedies. Courts have discretion to decide whether to require exhaustion of internal union procedures. In exercising this discretion, at least three factors should be relevant

(1) whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim;

(2)whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks under § 301; and

(3) whether exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim. If any of these factors are found to exist, the court may properly excuse the employee's failure to exhaust. NLRB v. Marine Workers, 391 U.S. 418, 426 (1968).

Can't I just sue my union or my employer? Why do I have to sue both?

Part of the claim for the breach of the union's duty of fair representation is the claim against the employer for the breach of the collective bargaining agreement. An employee sues his or her employer for termination without just cause which is likely a breach of the collective bargaining agreement. The employee also sues the union for failing to fairly represent the employee's interest under the collective bargaining agreement. So, a breach of the duty of fair representation claim involves both the union and the employer.

What is the time limit to file my claim? 

A breach of the duty of fair representation claim must be filed within six months of when an employee knew or should have known that union breached its duty. 

What does that mean?

It means that the time limit to file your claim begins to run when the employee first has notice that the union has failed to act in accordance with the collective bargaining agreement. Generally, this occurs when the union has failed to process your grievance to arbitration. 

 Thanks to Daniel LoBello for the information included in this post.  Dan is a law student at Western Michigan University's Cooley Law School and is serving an extern at Bos & Glazier. 

About the Author

Bradley Glazier

Bradley K. Glazier has enjoyed his success as trial lawyer for more than 30 years. In that time, Mr. Glazier has presented dozens of cases to judges, juries and arbitrators. He is a frequent speaker at employment litigation seminars.

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