Your Union Does Nothing to Protect You – What Are Your Remedies?
Unions have a duty of “fair representation.” The General Counsel for the NLRB in 2018 clarified and made more uniform the guideline the NLRB is to follow in deciding what is “fair representation.” If the failure to represent you because it lost track of the process, it must now provide a meaningful explanation or reasonable excuse for dropping the grievance. It must provide an explanation for why its existing procedures or systems were not effective ““for an identifiable and clearly-enunciated reason.” The General Counsel also states the derelict Union has a duty of real time communication with the represented employee to provide the employee a reasonable excuse or meaningful explanation for how it has handled [or mishandled] a grievance. A belated explanation after the employee has filed an “unfair labor practice” charge against the Union will not cure the original failure to communicate.
More good news for abandoned Union workers: if your attorney succeeds in federal court in winning your Union “gross negligence” case, and also prevails in showing that the Employer violated the Collective Bargaining Agreement [known as a “hybrid case” against both Union and Employer] federal case law allows your attorney to recover his or her attorney’s fees, and you may recover your costs.
More of these cases need to be filed, and frankly, not enough attorneys are willing to take them on. But if Unions are not held accountable, employers continue violating their collective bargaining agreements because Unions are not held accountable by their dues paying members. Maybe attorneys being educated on the use of the “hybrid action” and the potential for court ordered attorney’s fees will address part of the problem.
Sources: 29 U.S.C. §§ 185 and 187. See Hall v. Cole, 412 U.S. 1, 4-5 (1973). Courts have made such an exception to the American rule in duty of fair representation cases. See Emmanuel v. Omaha Carpenters Dist. Council, 560 F.2d 382, 385 (8th Cir. 1977)