Workers will find it easier to sue their unions for negligence under a new policy implemented by the National Labor Relations Board, the main federal labor law enforcement agency.
Unions that don't properly process workers' grievances will now be presumptively considered liable unless they can prove otherwise, a change that could cause a major increase in litigation at a time when unions are already struggling to retain members and stabilize finances.
"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," said NLRB General Counsel Peter Robb, a Trump appointee, in a memorandum sent to board regional directors on Oct. 24.
Similarly, a union’s failure to keep a worker fully apprised of its efforts to pursue a grievance "constitutes more than mere negligence" and would itself therefore be a violation.
"It is really creating a new form of liability ... It makes poor representation automatically unfair representation," said Joshua Parkhurst, a New York-based labor-side attorney. Previously the union was only at fault if it could be proven it acted in bad faith.
Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, said the change was welcome news, arguing that past general counsels far too often let unions get away with violating their obligations to workers. "Nowhere in the National Labor Relations Act does it suggest that unions can violate an employee’s rights with impunity, just as long as long as the violation is the result of union negligence rather than intentional discrimination," he said.
It is unclear how often unions fail to represent workers, but the memo said the change was prompted by an "increasing number of cases" in which unions defended themselves from worker complaints by asserting a "mere negligence" defense. "Mere negligence" asserts that if the union messed up, it wasn't because it was acting in bad faith. The memo doesn't give any reason for an increase in number of cases or what is causing them. A spokesman for the board could not be reached for comment.
Fair enforcement of the law required a change in policy, the memo said. "The General Counsel is aware that the above-described approaches may be inconsistent with the way Regional Directors may have been historically interpreting duty of fair representation law," it said. The policy would apply whether the workers pursued claims before the board itself or in civil court.
"It seems to be borne out of recognition that the 'negligence defense' ... was increasingly being applied to circumstances that were simply inapplicable," said Steve Bernstein, a management-side attorney for the Tampa-based firm Fisher Phillips. "The implications could be significant for unions that have been confronting an increase in such litigation in recent years."
The policy change comes after a half-dozen states, including union-heavy ones like Wisconsin, Michigan, and Indiana, have adopted right-to-work laws in recent years. The laws prohibit workers from being obligated to join a union or financially support one as a condition of employment. Even in those states, unions are still obligated to represent all workers in a workplace, even those who aren't members. At the same time, workers can generally only pursue a complaint against their employer through the union, even if they aren't a dues-paying member. So there are likely more unions being obligated to do work on behalf of nonmembers.
The general counsel's shift could be a serious problem for some unions. "There are unions that have thousands of members and professional staff and would be expected to be able to follow up on this," Parkhurst said. "Then there are those ones that are just single shops representing a few people ... They're not necessarily going to have procedures in place."