In two recent memoranda, NLRB General Counsel Peter Robb has clarified the standards to be used by the Board’s Regions in evaluating cases alleging that a union breached its duty of fair representation.

In Memorandum GC 19-01 issued on October 24, 2018, Mr. Robb indicated that the Board was seeing an increasing number of cases where unions defend Section 8(b)(1)(A) duty of fair representation charges at the Regional level by asserting a “mere negligence” defense. Under Board law, a union breaches its duty of fair representation to the bargaining unit it represents by engaging in conduct which is “arbitrary, discriminatory or in bad faith.” It is well established that a union’s mere negligence, alone, does not rise to the level of arbitrary conduct. On the other hand, perfunctory or arbitrary grievance handling can constitute more than mere negligence, and thus violate Section 8(b)(1)(A). Similarly, a union's failure to provide information relating to a bargaining unit member’s grievance also may violate Section 8(b)(1)(A). Additionally, non-action may amount to a willful and unlawful failure to pursue a grievance. The Board examines the totality of the circumstances in evaluating whether a union’s grievance processing was arbitrary.

In an effort to enable employees to better understand the duty owed by a union representative and to help unions discern their duty owed to employees, the General Counsel offered the following clarification for Regions to apply in duty of fair representation cases: “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.”

Similarly, the General Counsel opined that “a union’s failure to communicate decisions related to a grievance or to respond to inquiries for information or documents by the charging party ... 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 so irrespective of whether the decisions, alone, would violate the duty of fair representation.” 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.”

In Memorandum GC 19-05, issued on March 26, 2019, Mr. Robb reported that “[s]ince GC 19-01 was issued, questions have been raised as to whether the memorandum’s case handling instructions apply to union decisions as to whether to pursue a grievance and the extent to which Regions need to analyze unions’ justifications for not pursuing a grievance.” Mr. Robb clarified that “GC 19-01 did not alter the analysis concerning a union’s decision whether or not to pursue a grievance violated the duty of fair representation.”

In GC 79-55, former General Counsel John Irving described four categories of circumstances in which a union will be considered to have breached its duty of fair representation. These categories include:

  1. Situations where the union’s actions are attributable to improper motive (i.e. discrimination) or fraud;
  2. When the union’s conduct is wholly arbitrary and cannot be reasonably explained;
  3. Gross negligence constituting a reckless disregard of the interests of unit employees; and
  4. Situations in which a union does not act reasonably after deciding to pursue an employee’s grievance.

With respect to this last category, former General Counsel Irving noted that unions are afforded a “wide range of reasonableness” in representing the bargaining unit. According to Mr. Robb, “[o]nce a union decides to process a grievance, the union is not precluded from thereafter entering into a settlement acquiescing to the employer’s position, or even dropping the grievance. The union may consider the costs of further processing a grievance and accept less than that which the employee seeks as a settlement, or, if the union uncovers evidence undermining the employee’s case, the union may also reassess the grievance or withdraw it. This same ‘wide range of reasonableness’ approach should apply to initial decisions regarding whether to pursue a grievance.”

Mr. Robb reasoned that that “labor policy is not served by requiring a union to present a detailed defense of its decision to not pursue a grievance, or its decision to abandon a grievance, as long as the union is acting reasonably.” Therefore, “Regions need not look behind a union’s assertion of a reasonable decision not to pursue grievances unless there is evidence that those decisions were made in bad faith or involved gross negligence, or where there could be no reasonable basis for the union’s decision.”

Although these memoranda deal primarily with the rights and obligations of employees and unions, they could have some impact on how and whether a union pursues a grievance against an employer, and whether an employer may become embroiled in a hybrid Section 301 suit alleging that the union breached its duty and that the employer violated the collective bargaining agreement.