Yes, you can file a claim against your union for lack of representation. This type of claim is formally known as a breach of the duty of fair representation (DFR). Unions have a legal obligation to represent all employees in their bargaining unit fairly, without discrimination, arbitrariness, or bad faith.
It's important to understand that your claim is against the union as an organization, not against individual attorneys or representatives employed by the union. While a union provides legal services to its members, you cannot typically file a legal malpractice claim against an attorney employed by the union for these services. The responsibility for fair representation rests with the union itself.
What is the Duty of Fair Representation (DFR)?
The Duty of Fair Representation is a legal obligation imposed on unions to act as the exclusive representative of employees in a bargaining unit. This duty requires a union to:- Process grievances fairly: The union must handle grievances and disputes arising under a collective bargaining agreement in a non-arbitrary, non-discriminatory, and good-faith manner.
- Negotiate fairly: The union must conduct contract negotiations and administer the collective bargaining agreement without prejudice.
- Treat all members equally: The union cannot act arbitrarily, discriminatorily, or in bad faith towards any member of the bargaining unit, whether they are union members or not.
When is the Duty of Fair Representation Breached?
A union breaches its duty of fair representation when its conduct toward a member of the bargaining unit is:- Arbitrary: This occurs if the union's actions (or inactions) are perfunctory, irrational, or without a rational basis. Examples include:
- Ignoring a meritorious grievance without investigation.
- Failing to process a grievance without explanation.
- Handling a grievance with such gross negligence that it amounts to no representation at all.
- Discriminatory: The union treats an employee differently based on protected characteristics (e.g., race, gender, religion, national origin) or based on their non-union status, or internal union politics. Examples include:
- Refusing to represent an employee because they are not a union member.
- Prioritizing grievances of certain members over others based on favoritism.
- In Bad Faith: The union acts with dishonesty, hostility, malice, or intentionally misleads an employee. Examples include:
- Actively working against an employee's interests.
- Conspiring with the employer against an employee.
It's crucial to note that simple negligence, poor judgment, or a strategic decision that turns out poorly is generally not enough to prove a breach of DFR. There must be evidence of arbitrary, discriminatory, or bad faith conduct.
Distinction: Claim Against Union vs. Union Attorney
| Actionable Claim Against Union | Not Actionable Against Union-Employed Attorney |
|---|---|
| Breach of Duty of Fair Representation | Legal Malpractice Claim against individual attorney |
| (Union is responsible for overall representation service) | (Legal service is considered provided by the union) |
How to File a Claim for Breach of DFR
The process for filing a DFR claim depends on whether your employer is in the private or public sector and the specific circumstances:- Private Sector Employees: Claims are typically filed with the National Labor Relations Board (NLRB). In some cases, a lawsuit can be filed directly in federal court, often alongside a claim against the employer for breach of contract.
- Public Sector Employees: Claims are usually handled by state-level labor relations boards or commissions (e.g., Public Employment Relations Board in California, Employee-Management Relations Board in Nevada) or through state courts, depending on local laws.
Key Considerations Before Filing
Before pursuing a DFR claim, keep the following in mind:- Exhaustion of Internal Union Remedies: In many cases, you may be required to exhaust any internal grievance or appeal procedures within the union itself before filing an external claim.
- Statute of Limitations: There are strict time limits for filing DFR claims. For claims filed with the NLRB, the statute of limitations is generally six months from when you knew or should have known about the union's breach. State laws may vary for public sector employees.
- Burden of Proof: The burden is on you, the employee, to prove that the union's conduct was arbitrary, discriminatory, or in bad faith. This can be challenging and often requires documentation and evidence of the union's actions or inactions.
If you believe your union has breached its duty of fair representation, it is advisable to consult with an attorney specializing in labor law or contact the appropriate labor relations board for guidance specific to your situation.
