I know that to sue the Union for misrepresentation via PERC I had only six months. My main question is this. Can I retain my own Lawyer and still sue the Union for gross misrepresentation? I was terminated as a Fire Fighter and my Union was going to file a grievance but they filed 31 after the allotted time so I never got to appeal my termination. I questioned them for weeks and months about what was going on but they would never respond and when I did speak to them they said we are working on it, give us time. As soon as the six months was up they told me sorry, we cant do a thing for you, hit bricks. I questioned them numerous times getting no answers now they will not talk to me saying talk to our Lawyer and cease from contacting us. Can I hire my own Lawyer and go after them?
Employment / Labor Attorney
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. You MUST check with an attorney licensed in your state to learn your rights.
Evidently you worked for a public agency. Labor relations in state and local agencies is governed by state (and sometimes local) law. Most of these labor relations laws closely mirror the National Labor Relations Act, the federal labor relations law that applies to most private sector employment.
Under the NLRA (so possibly also under your state/local law) it is difficult to successfully sue a union. Most unions try to do the right thing and obtain justice. Sometimes “justice” does not help an individual employee. One reason is that unions have their primary obligation to the entire group of job classifications the union represents; that group is called the “bargaining unit.” Unions have the right to decide whether to pursue a case or not.
Most local unions have limited money & staff so they must pick and choose which cases to pursue. Unions have to balance the need for more money (to hire more union reps, take more cases to arbitration, etc.) with the bargaining unit’s resistance to higher dues. This is similar to elected officials who must balance constituents’ wishes with the need to raise taxes.
Some union reps are effective; others are incompetent, just as some attorneys and politicians are incompetent. Many local labor unions are run by volunteers. Many union representatives are full-time employees of the employer so do much of their union work on their own time, especially evenings and weekends. Only some unions have enough money to reimburse their reps for missed work hours, such as when handling a grievance. Only some unions have the strength to negotiate “lost time” with the employer, where the employer has to pay the rep’s wages when the rep is handling grievances; this time is usually limited to a low number of hours.
Nearly all elected & appointed union officers start out as rank-and-file workers. They may be elected due to competence, seniority, intelligence, charm, good looks, having a big mouth, blustering, oratory skills, etc. – just like politicians. There is a range of skills & a range of experience among them. Most unions provide some training for officers and stewards, but others don’t have the resources to do so. The quantity and quality of training can vary widely.
If a union employee wants to pursue a claim against the union, there is a 6 month time limit, called a statute of limitation, in which to file a lawsuit in federal court claiming a violation of 29 U.S.C. section 301 or file an unfair labor practice charge with a federal agency, the National Labor Relations Board. The statute of limitation begins from the date of the union's improper act. In your case, it sounds like if there was an actionable improper act, it was the initial failure to pursue your grievance.
There is a high hurdle for successful claims against unions. A union must have acted arbitrarily, discriminatorily or in bad faith – far beyond negligence. In fact, just missing a deadline is usually not a violation of the union's duty to an employee.
If the workplace problem is based on a statute, such as any of the laws prohibiting on-the-job discrimination or protecting whistleblowers then a private attorney may be able to help. If the workplace problem is due to the employer’s dissatisfaction with work or conduct, the remedy is probably limited to going through the union.
I mention all this for you to get an idea of how hard it is to succeed against a union, so be wary of any attorney who tells you it's a slam dunk and wants you to pay a large retainer or pay by the hour. You might have a claim and you might win, but both are unlikely.
@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.