Dear Union: “Do me no favors!” Unions that explicitly include discrimination in their list of covered disputes to be resolved by Arbitration clauses found in their collective bargaining agreements are not necessarily helping their membership. The reality is that weak unions fail to carry the cases of their membership through the grievance exhaustion process necessary to get to arbitration, with the result that major rights are lost. The Supreme Court has rather dismissively stated that the employee who thus loses his rights against the employer can then pursue a “Failure of Duty of Fair Representation” against the Union. This cause of action is virtually non-existent for a number of reasons, one of which is the high standard of proof imposed on the employee, and the other is the lack of an attorney fees provision for the prevailing employee. If you are a Union employee, and realize how lax your Union generally is in “fighting back”, discourage your Union leadership from including discrimination in its list of violations included within the scope of your collective bargaining agreement.

To read more about the recent U.S. Supreme Court case on this point: