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Can I file a lawsuit against my employment union for failure to represent on my own?

Moosic, PA |

Please don't respond to use the search tool as I have used it and already contacted over twenty firms with only six calling me back and none of them were willing to file a failure to represent case for me, so is it possible for me to file the case on my own? Is there either an organization or person/people that I can hire that could assist me with at least the paperwork in filing the case if nothing else? I am extremely confident that given everything that has happened, I will definitely prevail as long as everything is done properly. I can provide a reasonable assurance that with proper representation, I would not have been terminated. I can spend a couple thousand if needed to make this happen but I am not confident I can do it alone without making a mistake and would like some help.

Attorney Answers 3

Posted

These are notoriously difficult cases in that unions are given discretion in which cases to pursue or not pursue. However, as long as you are aware of the difficulty, you should be able to get a good employment lawyer to represent you. I would be happy to hear more facts.

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Posted

Have you considered that 20 firms not taking your case could indicate a serious problem? I would say go pay for a full consultation. I would be happy to help.

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Posted

I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

Very few attorneys sue unions. The standard to prove a union breached its duty of fair representation (DFR) is very tough to meet. A union breaches its duty of fair representation only if it acts arbitrarily, discriminatorily or in bad faith. Vaca v. Sipes, 386 U.S. 171 (1967). These words are legal terms of art and have a different meaning than in ordinary English and a different meaning in this area than in other areas of law. The level of wrongdoing required is far beyond negligence, and is premised on the union’s duty to represent the entire bargaining unit (the group of workers the union represents). The union must represent the bargaining unit overall, even if doing so is at the expense of one or more specific workers.

A union has the right to pursue some grievances and not others, to enforce parts of the collective bargaining agreement (contract) and not others, and to decline to arbitrate even a meritorious grievance if it believes doing so is not in the bargaining unit’s interest. The union can make this kind of decision if it feels it does not have adequate resources – financial, personnel or whatever – to warrant going forward. As long as the decision isn’t arbitrary, discriminatory or made in bad faith, the union acts within its rights. And most local unions do in fact have limited resources, so they decide to pursue to the end (arbitrate) only those cases which they feel are the most advantageous to the bargaining unit as a whole.

Again under the NLRA, only a small number of DFR cases are successful. If an employee decides to pursue a DFR against the union, note there is a six month statute of limitation for suing a union. The claim is filed directly in federal court; if filed in state court, it will certainly be removed (transferred) to federal court, unless one of the state labor relations laws is applicable.

The employee can also file an unfair labor practice claim against the union with the National Labor Relations Board (NLRB), alleging one of the specific unfair labor practices in the NLRA (assuming it applies). No attorney’s fees are awardable in an NLRB action, and there is a six month statute of limitation.

A good source for information about the rights of union members is the Association for Union Democracy: http://aud2.uniondemocracy.org/.

@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.

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2 comments

Edward Clement Sweeney

Edward Clement Sweeney

Posted

Marilynn, great and full explanation.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Thank you, Mr. Sweeney!

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