The NLRB’s Office of the General Counsel recently issued an internal directive regarding the manner in which NLRB Regions prosecute duty of fair representation charges against unions. Under the National Labor Relations Act, unions have a duty of fair representation to the members of the bargaining unit it represents by engaging in conduct that is not arbitrary, discriminatory or in bad faith, particularly with regard to the processing of worker grievances. Board law has established (and unions typically offer as a defense) that “mere negligence” alone does not amount to arbitrary conduct that would serve to breach the duty of fair representation.

The General Counsel’s internal directive aims to shape the contours of what conduct exceeds “mere negligence,” and acknowledges that the Board’s case-by-case approach to duty of fair representation decisions “has made it difficult to predict when the duty . . . will be breached.” Specifically, the General Counsel addressed two typical grounds supporting “mere negligence” defenses and maintained that if the union is unable to make additional showings, such conduct will be considered arbitrary and elevated to “gross negligence.”

First, the General Counsel provided that in cases where the union asserts a mere negligence defense “based on its having lost track, misplaced or otherwise forgotten about a grievance . . . the union should be required to show the existence of established, reasonable procedures or systems in place to track grievances,” and why those procedures or systems were not effective “for an identifiable and clearly-enunciated reason.”

Second, when a duty of fair representation charge is based on the union’s failure to communicate with the charging party about his/her grievance, the union must provide “a reasonable excuse or meaningful explanation.” Moreover, post-hoc communications made after the grieving employee files an unfair labor practice charge against the union, will not cure earlier violations resulting from the union’s failure to communicate.

Although this development directly impacts the inner-workings of unions, employers may also experience certain effects, perhaps unintended by the General Counsel. Employers often benefit from unions’ failures to process and address grievances in a diligent matter, but in light of the Regions’ elevated scrutiny, unions could become more proactive and vigilant in processing and pursuing grievances for bargaining unit employees. This in turn may force employers to be involved in more grievances, whether through arbitrations, information requests, and other dispute resolution tasks. As always, and particularly if there is a rise in grievances filed by employees and pursued by unions, employers should ensure that all records supporting defenses to grievances are in good order.