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Internal NLRB Memo Previews Increased Scrutiny of Duty of Fair Representation Charges

September 18, 2018

By Noah R. Jordan, Esq.

On September 14, 2018, the General Counsel for the National Labor Relations Board, Peter Robb, issued an internal memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers of the Board regarding his position on allegations of violations of unions’ duty of fair representation under Section 8(b)(1)(A) of the National Labor Relations Act.  Mr. Robb claimed there to be an increase in the instances of unions defending against claims filed under this Section by relying on what is known as the “mere negligence” defense.  This defense refers to the standard that, until now, union defendants had to satisfy in order to avoid action being taken against them by the Board.  By meeting this standard, unions have been able to show that they did not engage in arbitrary or discriminatory conduct or in bad faith towards their members, and instead that any alleged inaction or failure to take proper action was unintentional.

In his memo, Mr. Robb expressed his belief that the mishandling of a union member’s grievance, the failure to provide information relating to a member’s grievance, or the failure to pursue a grievance may rise to a level greater than negligence and instead constitute willful and unlawful activity, thus violating Section 8(b)(1)(A).  Mr. Robb further stated his belief that the case-by-case analysis previously undertaken by the Board has resulted in the failure to provide clarity as to when a union’s duty of fair representation has been, or will be, breached.  Therefore, he will be issuing the following guidance to all Regional Directors:

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.  Regions issuing a complaint in these cases should argue that generally, a union which loses or misplaces a grievance engages in gross negligence unless it has a system or procedure in place which, while reasonable, was not effective in a particular case for an identifiable and clearly-enunciated reason.

Similarly, a union’s failure to communicate decisions related to a grievance or to respond to inquiries for information or documents by the charging party, in the General Counsel’s view, constitutes more than mere negligence and, instead, rises to the level of arbitrary conduct unless there is a reasonable excuse or meaningful explanation.  This is irrespective of whether the decisions, alone, would violate the duty of fair representation.  Regions issuing a complaint in these cases should argue that a union’s failure to return phone calls or emails or other efforts by the charging party to inquire about a grievance or attempt to file one, constitutes more than mere negligence and, instead, willful and arbitrary conduct.  In addition, where a union ultimately communicates with the charging party in a Section 8(b)(1)(A) duty of fair representation case only after he/she filed the ULP charge, such post-hoc communications should not furnish the basis for dismissal on grounds that the union’s conduct was mere negligence, nor should it be found to cure earlier violations resulting from a failure to communicate.  Regions issuing a complaint in these cases should argue that failure to communicate with the charging party amounts to more than mere negligence, and that after-the-fact communications are insufficient to remedy the earlier violation as inconsistent with the Board’s [prior decisions].  In each of these cases, the theory of the violation should be articulated as gross negligence constituting arbitrary conduct.

This means that the law governing allegations of violations of the duty of fair representation will be changed unilaterally by Mr. Robb.  This change undoubtedly will lead to a noticeable increase in the number of Charges of Unfair Practice being filed by employees against the unions that represent them and in the number of Complaints being issued by the Board, which actively will pursue such claims.  In order to be able to adequately defend against such claims, it is imperative for all private sector unions to implement, or improve if already in existence, internal systems to ensure that members’ grievances are being properly and timely processed and that member inquiries are being responded to in a similarly proper and timely fashion.

If your union does not already have such a system in place, and you would like assistance in establishing one, or if you have any questions or concerns regarding this expected change in law, please do not hesitate to contact us.

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