I. Introduction

A. Employment lawyers frequently receive a question from a potential client that goes as follows: “I work for an employer, who is covered by a collective bargaining agreement (CBA), but do not have any confidence that my union will effectively represent me. Do I have to use the grievance/arbitration procedure provided in the CBA or can I hire my own lawyer and go to court to get relief?"

B. To simplify matters, this presentation skips over an important intermediate question – namely, is it necessary and/or wise to try to exhaust administrative remedies before the Equal Employment Opportunity Commission (EEOC) or its state or local counterpart before going to court.

II. Threshold concern

A. Differences in rights and potential claim

  1. Under the common law, the client is likely to be an “at will" employee with no legal rights other than the limited job protections provided by labor and equal employment opportunity (EEO) legislation under federal, state or local law.

a) Other than highly paid executives, employees are rarely parties to enforceable employment contracts.

b) The terms of a hiring letter are generally not enforceable because they do not contain specific terms and are usually refer to other employer policies based on “at will" employment status.

  1. Union contracts confer significant rights in the workplace, none of which exist under the common law or typical labor and EEO statutes.

a) These rights include “just cause" protections against unfair or arbitrary disciplinary action, including termination, and seniority rights that govern in significant part the order of layoff, promotion, etc.

b) The union, in its capacity as exclusive bargaining representative, uses its resources and pays all of the costs of taking a meritorious grievance to binding arbitration and, if necessary, enforcing the award in court.

(1) The union decides whether to accept any settlement offered in the grievance procedure or during the arbitration.

(2) The union rarely permits an employee to be represented by a private attorney because of concerns over maintaining the integrity of the collective bargaining process and the impact of an unfavorable result on the represented work force.

  1. While the union is required to consider the member’s interest, it also must take into account the impact of any settlement on the administration of the CBA and the union as an institution. The union always has the last word and its decision cannot be overturned except by a collateral action claiming a breach of the duty of fair representation.

B. Difference in remedie

  1. Employees, who are prevailing parties under labor and EEO legislation, are not only entitled to backpay and frontpay, but also to an award of damages and reasonable attorneys’ fees.

a) Litigation generally involves an uphill battle because the courts and/or juries have become exceedingly skeptical of claims brought by employees.

b) Litigation in court also requires the attorney and client to devote an enormous amount of resources for an extended period of time.

  1. Employees who bring grievances through their labor union are entitled to make-whole relief that restores the status quo ante.

a) The Arbitrator will commonly order from the employer to comply with the CBA and to make the aggrieved employee whole for any losses in pay, benefits and seniority suffered as a result of the wrongful employment action.

b) Make-whole relief does not ordinarily include an award of compensatory or punitive damages and/or reasonable attorneys’ fees.

C. Election of forum and potential exclusivity issue

  1. CBAs usually do not require the employee to elect between pursuing his/her grievance through arbitration, including raising any EEO claims, and raising these same claims in court.

a) If the employee initially elects to pursue the grievance/arbitration and loses, the employer is likely to rely on the adverse result and/or the record in the prior proceeding to seek dismissal.

If the employee initially goes to a fair employment practices agency or court, the employer may still seek to have the case deferred to arbitration because CBAs generally contain broad dispute resolution language and anti-discrimination clauses that cover invidious treatment based on union membership and activity as well as EEO protections.

  1. Federal law requires the employee and/or union to make a formal election of remedies between pursuing the matters before an EEO or personnel tribunal or through the grievance/arbitration procedure contained in the CBA.

III. Differences between litigating an employment dispute under a union contract in arbitration and in court

A. Differences in practice and procedure

  1. Labor Arbitration

a) The Arbitrator is a specially-trained neutral who is experienced in resolving workplace disputes, but not necessarily discrimination cases.

b) The arbitration process is much faster and more informal. Cases are often resolved in approximately 3-6 months from the date of the submission of the grievance to arbitration.

(1) Informal discovery can occur through information demands, but there is no deposition or motion practice unless expressly permitted by the Arbitrator.

(2) Evidentiary hearings are much more akin to administrative hearings with special twists that may occur because of the ongoing collective bargaining relationship between the parties.

(3) Post-hearing briefs are not always necessary in routine contract disputes. However, employers and arbitrators frequently encourage their filing, which only serves to run up the bill for the union and/or employee involved.

(4) Arbitrators commonly encourage settlements and will mediate the dispute with the consent of the parties. Arbitrators often intervene if there is a flurry of letters seeking relief or after hearing opening statements.

c) Arbitrating a wide variety of personnel, labor and EEO disputes is particularly advantageous in the federal sector.

(1) Arbitration allows the employee and union to escape Administrative Judges of the Merit Systems Protection Board and Equal Employment Opportunity Commission.

(2) The process also substitutes a private judge with no allegiance to this federal personnel and/or EEO system in place of federal bureaucrats who often lack experience outside of this system.

d) Miscellaneous but important matter

(1) Most CBAs and arbitration rules permit expedited arbitration of specified types of disputes.

(2) Arbitration awards are subject to court review under federal and state arbitration statutes, but the standard for overturning an award is very high – much like overturning a jury verdict.

(3) Arbitrators generally accommodate the interests of the union and employee as well as parallel interests of the employer. Since they are paid by both parties and want to retain their acceptability, arbitrators tend to be courteous and approachable at all points in the proceeding.

  1. Court proceeding

a) Litigation is often protracted and expensive to litigate and rarely do the clients have sufficient resources to cover litigation expenses – let alone office expenses incurred by the attorney.

b) Motion practice is rampant

c) Settlements rarely come to fruition until after paper discovery is completed and the plaintiff-employee has been deposed and/is able to survive summary judgment. By that point in time, the employee and his/her lawyer has a lot of time and money invested in the case.

  1. Grievance/arbitration representation

a) The grievant is not the lawyer’s client. The union is the client unless it steps aside to allow private representation in which case professional and legal responsibilities can become very tangled and potentially unmanageable.

b) A dissatisfied employee has only one remedy – filing an unfair labor practice complaint and/or a lawsuit against the union and employer alleging a breach of the duty of fair representation. These actions are governed by a six-month statute of limitation as a matter of established case law.

c) A duty of fair representation case is very much like legal malpractice cases because the employee must show completely arbitrary and/or patently unfair action on the part of the union and, additionally, that he/she would have prevailed in the arbitration had it been litigated by the union.

IV. Conclusion

A. Reliance on the rights and remedies provided in a CBA often provides a potentially viable alternative forum for resolving the underlying employment dispute.

  1. CBAs confer important and valuable workplace rights and have expedited and efficient dispute resolution provisions.

  2. The attorney should at least take a shot at working with the union steward, business agent or lawyer before rushing off to court.

  3. An employment lawyer who advises his/her client to utilize the grievance/arbitration procedure is likely to be limited to serving as an adviser or second chair.

  4. The cost-benefit issues cut in several directions but have to be considered by the lawyer and the client.

(1) Unions are natural allies and not competitors or enemies of employment lawyers and the clients that they serve.

(2) The elected and appointed leadership of the union are potentially valuable allies during all phases of a case, starting with fact-finding and investigation and going right through hearing and/or settlement negotiations.

  1. Labor unions can provide prompt and meaningful relief to an aggrieved employee but only within the framework of the CBA.

  2. The potential utility to the employment lawyer and his/her client of relying on the union and rights conferred by a CBA must be always determined on a case by case basis.

a) In making the necessary determination, there is always a need to focus on the potential claims to be asserted and resources available.

b) These considerations, among others, require a case-by-case analysis and reasoned dialogue with all interested parties, but keeping in mind that the client’s interest is always paramount.