by Phil Wilson
Unions Required to Represent Members (and they don’t like it one bit)
On October 24th NLRB General Counsel Peter Robb issued an important update for union officials: to meet their duty of fair representation, unions actually have to represent their members. Novel concept.
Robb’s memo was a little more politic, but the basic point is this: in most NLRB regions union officials get a pass for failing to represent their members so long as the reason for the misrepresentation was mere negligence. You read that right. The rule has been that unions can be consistently terrible at representing members and still meet their “duty” of fair representation. As long as everyone is getting equally terrible representation the union is off the hook.
The new interpretation raises the bar slightly. Unions can still get away with negligence. But to do it they need to show that their negligence was an anomaly. The memo states:
In cases where a union asserts a mere negligence defense based on its having lost track, misplaced or otherwise forgotten about a grievance, whether or not it had 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.
While one could argue that even this bar is too low, it at least forces unions to take the minimum steps to make sure grievances and information requests are handled properly. And it seems like it may be working.
This month Labor Notes ran a really interesting article on how to avoid Duty of Fair Representation (DFR) charges. I’ll first note the irony. This article – which is a textbook on taking good care of representing members – is instead about avoiding DFR charges. This gives an idea about how seriously union leaders take this “duty.” The author of this article – a union official for Chicago Teamster Local 705 – states it this way:
An internal National Labor Relations Board directive issued in September has raised the bar for how diligently unions must pursue grievances. A union can now be found guilty of violating the duty of fair representation (DFR) for losing track of a grievance or failing to promptly return a member’s phone calls about it. That’s a departure from long-established standards. Until now, you put the union at risk only if your treatment of a case was arbitrary, discriminatory, or in bad faith—not if the steward or union rep simply made a mistake, or did a poor job.
The interesting thing about this article is what follows. It is a terrific explanation of the things a union can do to “prove” it’s met the duty. These things are exactly what you’d want your union leaders to do. Keep track of communications. Appeal things even if you’re not sure you’ll succeed. Document investigations. Bring witnesses to meetings. Inform others about what’s happening. There are 15 different recommendations and they are all great.
Unions complain about rules related to financial transparency and being forced to earn their money. But I think they have things all wrong. If all unions follow the advice in Labor Notes their product will dramatically improve. People might even start to think a union is worth the dues they pay. And if enough people did that, maybe unions would actually start growing instead of dying.