Assume for a minute that something like this message popped up in our mail last weekend: “My union won a huge arbitration case for a group of us whose career ladder promotions have been habitually delayed. I was supposed to get a back pay check for $40,000.00, but I just got notice that the union was settling on $.50 cents on the dollar. I am *^#@& angry that it gave away $20,000 of my money and probably another $60.00 a month in my retirement check. What can I do about it?” Obviously, the employee thinks his union sold her out, but what is the answer to her question?
She could file a 7116 (b)(1) ULP charge with FLRA claiming that the union did not properly represent her and other. Here is a quick and dirty glimpse at some legal concepts the FLRA might consider in examining such a charge.
- A labor union’s duty of fair representation is a statutory obligation to serve the interests of all members without hostility or discrimination towards any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.
- Breach occurs only when a union acts in an arbitrary, discriminatory or bad faith manner. A union’s conduct is arbitrary if without an objective rational basis.
- Courts have given unions wide discretion to act in what they perceive to be their members’ best interests.
- The union’s processing of the grievance need not be error free, but neither can the union be allowed to show reckless disregard for an employee’s rights. To constitute arbitrary conduct, omissions must be egregious, unfair and unrelated to legitimate union interests.
The FLRA has ruled against union decisions when they were driven by personal animosity toward an employee or class of employees, (See NATCA, 66 FLRA 467 (2012)) when they favored one group of employees in a settlement over a similarly situated group, (See Dept. of Air Force and AFGE, Local 2943, 43 FLRA 1087 (1992)), and where it missed a grievance deadline. (See IAM and Roy G. Evans, 24 FLRA 352 (1986)). In that last case, the Authority also required the union to reimburse the employee for the money he lost when it made a mistake processing his suspension grievance if it could not convince management to pay the employee.
The Authority would probably ask the union to provide an objective basis for its decision that is rationally related to its duty to represent members. If the union had one, the case would be dismissed with a very limited right to appeal. However, if the union did not meet the objectivity standard, the FLRA would prosecute the case for the employee all the way to the Supreme Court, if necessary. Given that the chances of the union convincing the agency to give the employees all the money they were due is right up there with taking home a Powerball pot, the union could be forced to cover the loss itself from current and future funds. OUCH!!!
The irate employee could mount a campaign to impeach the union officer(s) that made the decision or one to beat her in an upcoming election. But neither is going to get the bad settlement reopened nor her lost $20,000. If the decision on such settlement is made high up in the chain of command where thousands of employees or locals vote in elections or impeachment, chances of succeeding are microscopic.
She could terminate dues withholding and drop out of the union, but that would prevent her from leading an impeachment campaign or election challenge inside the union.
A social media campaign might make things uncomfortable for the person who made the decision, but again it is unlikely the employee recoups her losses. There is also the chance that the union uses its resources to sue the employee for defamation.
The best protection is the one that almost no one thinks of in advance, namely, the righto ratify grievance settlements—or at least certain kinds of them. Nearly every union contract gives the members the right to vote on term contract revisions, but we can’t find one that gives them the right to vote on significant grievance settlements. We can’t even find one requiring the union decision-maker on grievance settlements to get the formal agreement of even a small, representative subgroup of a larger class covered by the grievance, e.g., the president from each local. Ironically, a ratification vote on high dollar grievances would also protect the union leader and treasury from back pay obligations.
Sadly, this is an area of the law that leaves employees exposed. Like it or not union leaders can be just as capricious, selfish, and pitifully wrong as any manager. The opportunity to get a fat attorney fee check now rather than later can make a settlement offer suddenly look very attractive as can the opportunity to boost a reelection or even organizing campaign.