Unions can't refuse to file or process a grievance arbitrarily, discriminatorily, or in bad faith. If the CBA gives the Union the exclusive right to file the employee's grievance, it still does not necessarily mean they have to file it. Unions owe members of the bargaining unit a duty of fair representation. It differs from the duty of undivided loyalty lawyers owe to their clients because the union has to look out for the interests of everyone in the union, and it may be that those interests are not well served by pressing a particular member's grievance.
Consult labor-relations counsel in your area to assist you with evaluating whether the duty of fair representation has been breached in your case. As a general principle, unions are not liable in negligence for failure to file a grievance, not strictly required to file every grievance urged upon them by bargaining unit members.
Not legal advice as I don't practice law in Virgina or hold Virginia licensure. If you need legal advice, please consult Virginia counsel. I practice in Vermont ONLY.
If this is a private company, the union and company is governed the National Labor Relations Act (NLRA). Prior to filing in any court, you must file a timely unfair labor practice against the union and quite possibly management if you have evidence that there was collusion between management and the union. The time limit is very short-6 months from the time you should have known that the union was failing to act. I would contact the National Labor Relations Board, which enforces the NLRA; if you act is timely, you should discuss with the NLRB agent BEFORE you file the charge what kind of evidence you will need to support. it. I have included some links for you.
This is meant as general legal information and is not to be construed as legal advice in an attorney client relationship.
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 and staff resources so they must pick and choose which cases to pursue. Unions have to balance the need for more money (to hire more union reps or to take more cases to arbitration, for example) with the bargaining unit’s resistance to higher dues. This is similar to elected officials who must always balance constituents’ wishes with the need to raise taxes.
Some union reps are highly 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 and appointed union officers start out as rank-and-file workers. They may be elected due to work competence, seniority, intelligence, charm, good looks, having a big mouth, blustering, oratory skills, etc. – just like politicians. There is a range of skills and 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 six 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. There is a high hurdle for successful claims against unions. A union must have acted arbitrarily, discriminatorily or in bad faith – far beyond negligence. These cases are very difficult to win.
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.
One of the best sources for information about unions and their relationships with the workers they represent is the Association for Union Democracy (AUD) . You may want to visit the AUD website and see if there is anything helpful there.
Finally, one thing to consider is that even with faults, unions are the only thing standing between any worker and the employer’s ability to do whatever it wants. Without unions, there is no organized opposition to corporate efforts to take away workers’ rights. It is no coincidence that as union membership has declined, so have on-the-job benefits such as health insurance and pensions.
All your life, you’ve heard “there is strength in numbers.” You hear it because it is true. The best way to make a union stronger and better-able to help all workers is to participate in its work. Read the collective bargaining agreement (contract). Attend union meetings, ask questions and think about what is happening at the workplace. Help your union help you.
twitter.com/MikaSpencer *** 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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