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Can I sue the Union for poor Representation? and Can I appeal and Arbitrators decision?

Jersey City, NJ |

In NJ, I was terminated while on sick leave. I was still under FMLA and received short term disability and was terminated for Unauthorized leave, Insubordination, Chronic absenteeism and Resignation not in good standing. This was my first incident. I attended arbitration with my union rep. and the Arbitrator awarded me my job stating my employer did not have just cause, . I was given a five day suspension and no back pay. It stated "The record does not support an award of back pay" What does that mean? . My union summation did not explain that my leave fell under the chronic sick leave policy and not the regular personal Leave of absence policy that the arbitrator used. the wrong policy code. and they never requested for back pay with any calculation. Can I appeal and sue the union?

I work for the State of New Jersey, with a union contract CWA local 1032

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Attorney answers 2


Your question cannot be answered based on the information in your post. You would need to have an attorney review your collective bargaining agreement and all the facts of your underlying case to determine whether you had a claim against the union for inadequate representation. Gather all your information and invest in a consultation with an experience labor attorney to see if you have grounds for a case and also whether your potential recovery would justify the effort.

A response to a question posted on Avvo is not intended to create an attorney-client relationship. It is informational only. Allan E. Richardson, Esq. Richardson, Galella & Austermuhl 142 Emerson ST., Woodbury, NJ 08096 856-579-7045.


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.

You asked the meaning of "The record does not support an award of back pay." The means the arbitrator considered whether you should receive back pay and decided you should not. The arbitrator does not have to state the reason, though many of them do. Many arbitrators "split the baby" by giving something to the union and something to the employer. It isn't good, but they do it and it is perfectly legal.

Your state's laws will govern the answers to your questions about the law and who you can sue. If your state's laws follow the National Labor Relations Act, which is the main private sector labor law in the country, then you cannot appeal the arbitrator's decision except under very specific circumstances that rarely arise. The whole point of arbitration is to make sure the case is fully resolved by the arbitrator and not by a court. Arbitrators have large discretion to fashion awards as they see fit.

And if your state laws follow the NLRA, you will not be successful in suing the union. First, the arbitrator considered whether you should have back pay, so if the union did not raise the issue, you were not harmed.

Second, most unions try to do the right thing and obtain justice. 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.

However, you may have recourse under the FMLA. Please look at my Avvo guide first:, then contact one or more experienced employment law attorneys with whom you can discuss the details of your situation. You have two years to file a lawsuit asserting that your FMLA rights were violated. Know that the arbitrators decision may make it difficult or impossible to pursue an FMLA claim. It depends on many factors.

Finally, remember that even with their faults, unions are the only thing standing between any worker and the employer’s ability to do whatever it wants. You would not have your job back without the union. *** 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. ***