It's now officially public: under the National Labor Relations Board's (NLRB) General Counsel Peter B. Robb, unions may face greater scrutiny and a higher burden in defending against claims that they violated the duty of fair representation. Under the National Labor Relations Act, unions owe this duty to its members and can be liable under Section 8(b)(1)(A) if they represent them arbitrarily, discriminatorily, or in bad faith.
Memorandum GC 19-01, published October 24, 2018, clarifies the "mere negligence" defense to duty of fair representation claims. While a union's mere negligence is not a violation, Memorandum GC 19-01 provides examples of conduct that could exceed mere negligence and thus violate a union's duty of fair representation, including:
- Little or no investigation in connection with a discharge grievance
- Willfully misinforming or keeping a grievant uninformed of a grievance after committing to pursue arbitration
- Failing to provide information relating to a bargaining unit member's grievance
- Failing to communicate decisions related to a grievance or to respond to inquiries for information or documents by the charging party, a failure which cannot be cured by communication with the charging party post-filing
Further, Memorandum GC 19-01 clarifies that in cases where the union claims mere negligence based on having lost track, misplaced, or otherwise forgotten about a grievance, regardless of whether the union committed to pursue it, the union should be required to "show the existence of established, reasonable procedures or systems in place to track grievances, without which, the defense should ordinarily fail."
Memorandum GC 19-01 is substantially similar to an internal directive dated September 14, 2018, Memorandum ICG 18-09. Memorandum GC 19-01, however, officially publicizes the General Counsel's position to the regulated community as well as the agency, which gives it greater immediate impact on the day-to-day dealings between unions and their members.
The Office of General Counsel's increased scrutiny of alleged union negligence is a departure from past enforcement practices. In the most recent General Counsel Division of Advice Memorandum involving the duty of fair representation and a union's claim of mere negligence, the Office of General Counsel directed dismissal of the charges. This was despite the Office of General Counsel calling the union's explanation for its failure to file a charge or notify the member of its decision to do so "ambiguous" in one, and admitting that the union "seems to have ignored unit employees' inquires and has otherwise been generally absent in employees' daily lives" in the other. See Advice Memorandum in Case No. 07-CB-146694 (Oct. 19, 2015) and Case No. 07-CB-115117 (June 12, 2014). Both cases might very well have had a different outcome under the standards articulated in Memorandum GC 19-01.
While Memorandum GC 19-01 primarily relates to the representational activities and obligations of unions vis-à-vis their members, employers may be affected by more proactive and vigilant processing and pursuing of grievances by unions. As we previously stated, this in turn may force employers to be involved in more grievances. As always, employers should ensure that all records supporting defenses to grievances are in good order.
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