New Federal Labor Directive Holds Unions Accountable to Workers

Last week, the National Labor Relations Board (NLRB) general counsel’s office issued a directive that provides clarification for when field offices should pursue charges “against unions for ‘negligent’ behavior such as losing an employees’ complaint or not returning phone calls when the worker has questions,” according to a document obtained by Bloomberg Law.

This directive is an effort to bring consistency to how the NLRB enforces cases when a union may have breached their duty of fair representation in regards to the mishandling of employee grievances. As the general counsel’s office wrote:

The case-by-case approach has made it difficult to predict when the duty of fair representation will be breached. In an effort to enable employees to better understand the duty owed by a union representative and help unions discern their duty owed to employees…

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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.

The change revises how the NLRB interprets a union’s duty of fair representation, which is a judicial rule that requires unions to represent all workers in a bargaining unit fairly and without discrimination — whether they are full-fledged members or nonmembers. The concept of duty of fair representation originated from a 1944 Supreme Court case “of Steele v. Louisville & Nashville Railroad, wherein a black employee sought to set aside a bargain-for-seniority system that discriminated based on race.”

The Supreme Court determined that unions that act as an exclusive bargaining representative, which means they negotiate on the behalf of and represent all union members and non-union members, are obligated to represent all workers fairly.

Since Congress extended monopoly power to labor unions in the form of exclusive representation, the duty of fair representation is a crucial safeguard. By Congress granting labor unions the authority to represent all workers, regardless of whether they are union members, it is important they are prohibited from negotiating terms of conditions of employment that discriminate against non-members. Related to the recent directive, collective bargaining agreements usually outline the grievance process, employees normally file grievances with the union, not directly with the employer, and union officials possess discretion on how to handle employee grievances.

As such, the directive is a positive development. Since Congress granted union’s monopoly power, and unions design and control the grievance process, they must be responsive to employees who file grievances.

This change to the duty of fair representation has rankled union advocates. In a Twitter thread, Julie Ulmet, Deputy Chief of the Labor Bureau for the New York Office of Attorney General, made several arguments why the NLRB directive is poor policy:

1. First, this fundamentally misunderstands the relationship of employees to unions to grievances. A grievance is an alleged violation of a collective bargaining agreement.  A union, not an individual employee, is a party to that contract and can assert the violation.
2. On a practical matter, this comes at a time when unions are increasingly starved for resources (see, eg, Janus) and overstretched union staff may not have the resources the pursue every grievance or return every phone call.  These are not violations of the law.
3. Employees do not have a right to file grievances every time they want to (under most CBAs). Unions have discretion to decide when to file grievances and how to interpret and enforce the CBA.
4. One more detail on the law. The statutory scheme contemplates that when workers aren’t happy with how their union processes grievances, workers can change unions, or run for union leadership, NOT that the government will get involved in micro-managing the union.
5. What’s the practical impact? [NLRB General Counsel Peter B.] Robb is directing NLRB agents to spend their time investigating – and now litigating – these often-frivolous complaints against unions, which will necessarily be at the expense of pursuing cases against employers.
6. Big picture: at a time when employers increasingly squeeze employees, and the government squeezes the NLRB, and union coffers are squeezed, the Trump administration has directed NLRB agents to focus on going after unions, rather than employers. Workers will suffer.

In regards to Ulmet’s arguments 1 and 3, this illustrates the inherent problem with Congress granting unions the authority to be exclusive bargaining representatives. Unions have total control over negotiating collective bargaining agreements, and, therefore, how the grievance process works. Most of the time, unions negotiate contracts that effectively box out employees from filing their own grievances. It is reasonable bind union members to the provisions of a collective bargaining agreement, but non-union members should have the right to file their own grievances since they are forced to work under a union contract they do not want. Without this right, it is reasonable to make it an unfair labor practice when unions are negligent in handling workers’ grievances. Since non-union workers must adhere to the provisions in union collective bargaining agreements, the NLRB directive imposing stricter standards on union negligence makes sense.

Argument 4 dovetails with arguments 1 and 3. First, it is very difficult to decertify a union and generally not a practical avenue for redress for employees who have issues with how the grievance process works. Two, non-union members are prohibited from running for union offices. Ulmet’s remedy that employees should run for union positions is limited to only union members and non-union members have little recourse to challenge a poor handling of grievances by unions.

Ulmet’s points 2 and 6 are not relevant to the policy at hand. However, it is worth pointing out, the Janus decision only impacts unions as far as they can no longer force workers to pay them. Unions should have never had the authority to force unwilling workers to pay them as a condition of employment.

A better solution, which I advocated for in a recent op-ed, is for Congress to eliminate exclusive representation. The change would mean only full-fledged dues paying union members would work under a union contract. All other workers would be free to seek other representation or negotiate directly with their employer. By eliminating exclusive representation, there is little need to impost the duty of fair representation on unions.