The General Counsel (GC) of the National Labor Relations Board issued a memo on October 24, 2018 that focused on the unions’ duty of fair representation to their bargaining unit members. Numerous commentators, including management-side attorneys (as I am), trumpeted the fact that the Board is holding unions accountable. There seemed to be a feeling that, after years of employers being attacked by a left-leaning Board, the playing field is being re-leveled. But, as my partner Mike McGuire pointed out, is this really good for employers?
Let’s first discuss the memo. The GC acknowledges that a union breaches its duty of fair representation by engaging in conduct that is “arbitrary, discriminatory or in bad faith.” Under the law, a union’s mere negligence does not rise to the level of “arbitrary” conduct. The GC then notes that there has been a recent increase in unions’ assertion of the “mere negligence” defense.
Apparently wanting to nip that trend in the bud, the GC offers “clarification” on the “mere negligence” defense. First, the GC says that, in cases where the union has lost track, misplaced, or forgotten about a grievance, the “mere negligence” defense will not apply unless the union can show that it has “established, reasonable procedures or systems in place to track grievances.” The GC also notes that the defense is not available for a union’s failure to communicate decisions related to a grievance or to respond to inquiries for information or documents by the charging party, without a reasonable excuse or meaningful explanation. Finally, the GC notes that, dismissal of a charge alleging a breach of the duty of fair representation is not warranted if the union communicates with the filing party only after the charge has been filed.
So, like other commentators, I was initially excited that the Board is requiring unions to face up to their responsibilities. But then Mike pointed out that this doesn’t actually help employers. The duty of fair representation issue only comes up when a union fails or refuses to process a grievance. So placing increased scrutiny or liability on a union for failure to process grievances only means more grievances and arbitrations for the employer to deal with!