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Unions to Face Greater Scrutiny for Negligent Conduct to Their Members

National Labor Relations Board’s field office staff have been directed to prosecute a broader array of cases against unions that engage in negligent behavior toward their members, according to an internal memorandum obtained by Bloomberg BNA.

The Office of the General Counsel Memorandum expresses a marked contrast to the Board’s historical position with respect to cases addressing a union’s “duty of fair representation.” “General Counsel’s Instructions Regarding Section 8(b)(1)(A) Duty of Fair Representation Charges” Memorandum ICG 18-09 (Sept. 14, 2018).

A union owes its members an obligation to represent them in good faith and without discrimination. A union breaches the duty of fair representation when it engages in conduct that is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967). Where, for example, a member believes that a union has failed to adequately prosecute a grievance on the member’s behalf, the member may file a duty of fair representation charge against a union under Section 8(b)(1)(a) of the National Labor Relations Act.

Under existing Board law, a union can defend itself against such a charge by showing its behavior was “merely negligent.” As one example, a union may successfully argue that where the union lost or misplaced a grievance, the union’s conduct was merely negligent and did not constitute a violation of the duty of fair representation. Citing an “increasing number of cases” where unions have employed such a defense, the Memorandum toughens considerably the standards on unions. This is particularly true in two specific circumstances.

The first pertains to situations where a union loses track of, misplaces, or otherwise forgets about a member’s grievance. Under the Memorandum, the loss of a grievance will constitute gross negligence, unless the union can show that it had an established, reasonable tracking system in place for grievances, but the system failed “for an identifiable and clearly-enunciated reason.”

The second example pertains to situations where a union fails to communicate its decisions about a grievance or fails to respond to inquiries for information from a member on the status of a grievance or the member’s attempt to file one. The Memorandum states that such conduct (for example, where a union ignores emails or phone calls) is willful and arbitrary, unless the union can prove that it had a “reasonable excuse or meaningful explanation” for its lack of responsiveness.

While the Memorandum is not controlling law (ultimately, the five-member Board issues controlling interpretations of federal labor law), because the General Counsel’s office prosecutes cases filed with the NLRB, the Memorandum may cause a considerable uptick in cases filed against unions. This increase, in turn, could increase members’ awareness that the duty of fair representation owed to them cannot be taken lightly by their unions.

Jackson Lewis P.C. © 2019


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.