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Union's negligence about failing to fully inform grievant does not establish breach of duty of fair representation

Union's negligence about failing to fully inform grievant does not establish breach of duty of fair representation
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Hansen v. Communication Workers of Am., No. 08-2051, ___F.3d___(8th Cir. May 6, 2009), demonstrates how difficult it is to establish a breach of the union's duty of fair representation. Here the union failed to disclose an 18-month limitation on back pay because the union chose to submit the dispute to advisory arbitration instead of full-blown arbitration. Though the court recognized the union's actions were improper, at most they were negligent which does not establish a breach of the duty of fair representation. As the court explained:

It is the Union, not the individual employee, who decides how to proceed and whether to submit a grievance to arbitration. See Vaca, 386 U.S. at 191, 192 (reasoning unions have the ?contractual power honestly and in good faith to settle grievances short of arbitration,? and ?[i]f the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined?).

Further, ?while a union?s failure to notify a grievant may be negligent and in poor judgment, such an omission, without anything more, does not violate a union?s duty of fair representation.? Demars v. General Dynamics Corp., 779 F.2d 95, 98 (1st Cir. 1985) (citations omitted); see also Buford, 160 F.3d at 1202 (?Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach of the duty of fair representation.?).

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on June 08, 2009 (boomark / email).