When problems arise at work, unions have a duty to represent their members in a fair manner. If they do not, then they can be held liable for unfair representation. Claims against a union for breach of this duty also typically involve a claim of breach of the collective bargaining agreement against the employer. Typically, we can’t do much to help employees who belong to a union unless the union breaches its duty of fair representation or takes some action that is illegal.
What Is the Duty of Fair Representation?
Unions have a duty to represent their members in a manner that is not arbitrary, discriminatory, or in bad faith. This duty can arise in many circumstances, but one primary area is the processing of member grievances against an employer.
How Does a Union Breach the Duty of Fair Representation?
A union must process a meritorious grievance, but it does have discretion in determining whether a grievance is meritorious and whether to pursue or process a grievance against an employer. A union cannot simply ignore a meritorious grievance or process it in a perfunctory manner. It also can’t fail to perform a “ministerial act” that requires no discretion. However, so long as the union acts in good faith, it will not be liable for breach of the duty of fair representation, even if union representatives are negligent or exercise poor judgment.
What Is Required to Prove a Claim of Breach of the Duty of Fair Representation?
When an employee is terminated without “just cause,” as required by a collective bargaining agreement, and the union fails to process the employee’s grievance in a fair manner, the employee can sue the union, the employer, or both. However, to win the case against either or both, the employee must prove both that the employer breached the collective bargaining agreement by terminating the employee without just cause, and also that the union failed to represent the employee properly.
This requirement exists because if the employee can’t show that the employer’s termination was without just cause, then the employee can’t prove that the union should have done more to represent him or her. A claim like this is called a “hybrid claim” under section 301 of the LMRA because the employee must prove two claims: (1) breach of the duty of fair representation by the union; and (2) breach of the collective bargaining agreement by the employer.
What Damages Are Available?
An employee who wins a hybrid claim can receive compensation for lost earnings, which will typically be divided proportionally between the union and employer based on each party’s fault. As part of damages, a court can also require the union and/or employer to pay the employee’s attorney’s fees and costs.
Is There a Time Limit on When a Suit Can Be Filed?
Yes, a hybrid claim under section 301 of the LMRA must be filed within six months of when the employee knew or reasonably should have known of the union’s failure to represent the employee fairly.
- What Is the Statute of Limitations for a Hybrid Claim under section 301 of the LMRA?