Under many contracts (collective bargaining agreements) and union charters, the union is not required to represent the employee in all or every matter. Depending on a number of factors, the duty of representation may be satisfied without engaging in formal or adversarial processes on behalf of the employee. Most often, the union retains the right and power to unilaterally determine the extent of representation through the steps of an escalating grievance process, with the union retaining the ultimate discretion as to whether to take any individual grievance before a third-party neutral in a fact-finding proceeding (most often identified as "arbitration").
You have not provided enough facts for anyone here to determine whether there may have been a breach of your union's obligations to you. You may want to post additional info, or you may want to consult with a local employment law attorney. Many employment attorneys do not accept claims against unions so, if you are scheduling some legal consultations, be sure to identify the nature of your issue in advance.
My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.
For most private sector union-represented employees the National Labor Relations Board ("NLRB") has jurisdiction over claims alleging violations of the National Labor Relations Act, which may include breach of the union's duty of fair representation. You can consult with a local NLRB office for assistance, and/or a labor/employment attorney.
Disclaimer: This response is not intended to create, nor does it create an ongoing duty to respond to questions. This response does not form an attorney-client relationship, nor is it intended to be anything other than an educated opinion of the author. This response is not legal advice, nor is it intended to be relied upon as legal advice. This response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.
A good source for information about the rights of union members is the Association for Union Democracy: http://aud2.uniondemocracy.org/.
*** 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. ***
The duty of fair representation is a right created by the United States Supreme Court some 70 years ago. The duty of fair representation, which is often described as the corollary to the fact that unionized employees cede bargaining power to their union, requires that the union represent employees fairly. Specifically, the union must act in a way that is not in bad faith, arbitrary, or discriminatory.
The union is permitted to act within a "wide range of reasonableness," and courts have required that a plaintiff in a duty of fair representation lawsuit show that actual damages have resulted from the failure to fairly represent the union member. More than that, the wrongdoing must not be merely negligent, unwise, or imprudent.
Duty of fair representation cases require extensive review of detailed facts. Your posting, consisting of 11 words, provides no information whatsoever. In that regard, five of those 11 words constitute a legal conclusion.
The way it works, when you want advice from an attorney, is that you present facts and you thus allow the attorney to reach legal conclusions based on those facts. In your posting, you have asked a simple question and then you backed it up with a simple legal conclusion. You don't really need a lawyer's advice if you can reach correct legal conclusions on your own.
You'd need to provide an array of facts to an attorney experienced in duty of fair representation cases.
In the meantime, the best advice I can give you is to get that legal advice QUICKLY. The duty of fair representation has one of the shortest statutes of limitations known to law -- six months. That six-month period starts at the time when the duty of fair representation was breached or when the union member reasonably should have known of the breach.
Good luck to you.
Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.
I agree with other attorneys on here. Unions have a wide discretion in choosing which grievances to file and which claims to take further or to arbitration. The law gives unions a wide discretion in using their judgment as to whether or not represent an employee. Unless there is significant evidence that the union acts in discriminatory matter (which is very rare), any claim for failure to represent will fail.