The National Labor Relations Board is turning up the heat on labor unions it believes have neglected their members or treated them badly.
General Counsel Peter Robb issued new instructions to the NLRB’s Regional Offices on how to handle duty of fair representation (DFR) charges brought by individual union members against their unions.
Unions previously were able to argue a “mere negligence” defense to evade these types of claims with ease, points out attorney Judd E. Cohen of the law firm of Fisher Phillips.
The regional offices now will seek to determine if gross negligence or arbitrary behavior was exhibited by the union, and they will likely prosecute union officials if such findings are the result.
The board is now focusing on two types of cases: (1) when a union loses track, misplaces or otherwise forgets about a grievance; and (2) when a union fails to communicate decisions on a grievance, or does not respond to inquiries for information or documents by the aggrieved member.
Unions will have to show the existence of established, reasonable procedures or systems in place to track grievances. The “mere negligence” defense unions have relied on in the past will ordinarily fail if a union doesn’t have such a system.
One possible unintended consequence: Unions facing stricter probing in DFR cases could become more vigilant in pursuing grievances on behalf of their members, Cohen notes.
“Grievances that may have once fallen through the cracks might no longer be ignored by unions as they try to avoid upsetting members,” he says. “Such an increase in grievances will inevitably lead to more arbitrations and more time and money spent on resolving disputes.”
In addition, these charges could drive up unions’ legal costs, leading to fewer resources for them to spend on political contributions that lead to union-sponsored legislation, Cohen observes.