It looks like unions across the United States will find it more difficult in the future to escape charges filed by their members who feel they have been abused by union officials.
National Labor Relations Board General Counsel Peter Robb has instructed the board’s regional offices to change the way they deal with what are termed duty of fair representation (DFR) charges. Specifically, the new instructions are seen making it more difficult for unions who previously had found it easy to offer a defense of “mere negligence” to escape the negative consequences of these claims.
“Where unions have previously been able to argue such a defense to evade these types of claims with ease, the regional offices will now look more closely at these cases to determine if there was in fact gross negligence or arbitrary behavior exhibited by the union, and will likely prosecute them if such findings present themselves,” explains Judd E. Cohen, an attorney with the law firm of Fisher Phillips.
DFR cases arise when employees accuse their unions of not treating them fairly or processing their grievances incorrectly. Up until now, NLRB regional offices looked into DFR charges against unions on a case-by-case basis, and a union’s defense of “mere negligence” was typically enough to warrant a dismissal of the charge, Cohen points out.
The Sept. 14 directive from the NLRB general counsel aims to bring more predictability to the outcome of DFR cases. The changes are intended to be “an effort to enable employees to better understand the duty owed by a union representative and to help unions discern their duty owed to employees,” Robb declared.
The agency plans to focus its new procedures on two types of cases—when a union loses track, misplaces, or otherwise forgets about a grievance; and when a union fails to communicate its decisions on a grievance, or does not respond to inquiries for information or documents by the aggrieved member.
Unions Face Added Costs
Regional offices now can be expected to be more meticulous in determining if a union showed “mere negligence” or if the union’s action in misplacing a grievance amounted to something more, Cohen says. Using the Robb memos’ words, unions will have to show “the existence of established, reasonable procedures or systems in place to track grievances.” The “mere negligence” defense unions have relied on in the past will “ordinarily fail” if a union fails to establish such a system.
Unless there are unique circumstances, the lack of an established procedure in place will lead regional offices to issue a complaint, and argue a union engages in “gross negligence.” A union may avoid facing liability if it has a reasonable system in place, but “was not effective in a particular case for an identifiable and clearly-enunciated reason.”
NLRB regional offices will now be more likely to find a union acted arbitrarily when it fails to “communicate decisions related to a grievance” or when it does not “respond to inquiries for information or documents by the charging party,” Robb says. A union can still avoid prosecution in these types of cases if it shows “a reasonable excuse or meaningful explanation.”
However, in situations where a union has in fact responded to the request from a member who then remains unhappy with the union’s opinion, the union doesn’t have to share any additional explanation in order to be found not to have acted arbitrarily.
“Employers might be wondering why they should care about the internal workings of unions,” Cohen admits. “One unintended consequence that could soon be felt by employers is an uptick in the number of grievances filed by unions.”
He warns that unions who become concerned about the specter of the NLRB’s stricter treatment of DFR cases could become more vigilant in pursuing grievances on behalf of their members. Grievances that earlier could have fallen through the cracks might no longer be ignored by unions as they try to avoid upsetting members.
Such an increase in grievances will inevitably lead to more arbitrations and more time and money spent on resolving disputes, Cohen points out. “On the other hand, unions fighting DFR charges may also find themselves with higher litigation costs to defend themselves, which could lead to fewer resources to spend on representing their members or, more likely, to spend on political contributions that lead to union-sponsored legislation.”