No one can answer this question without knowing the details of the DFR. If you were entitled to back pay, however, it is most likely because the employer did something that caused you to lose the back pay, which means the employer should be paying it.
The standard to prove a union breached its duty of fair representation (DFR) is very tough to meet. A union breaches its duty of fair representation only if it acts arbitrarily, discriminatorily or in bad faith. Vaca v. Sipes, 386 U.S. 171 (1967). These words are legal terms of art and have a different meaning than in ordinary English and a different meaning in this area than in other areas of law. The level of wrongdoing required is far beyond negligence, and is premised on the union’s duty to represent the entire bargaining unit. The union must represent the bargaining unit (the group of workers the union represents) overall, even if doing so is at the expense of one or more specific workers.
A union has the right to pursue some grievances and not others, to enforce parts of the collective bargaining agreement (contract) and not others, and to decline to arbitrate even a meritorious grievance if it believes doing so is not in the bargaining unit’s interest. The union can make this kind of decision if it feels it does not have adequate resources – financial, personnel or whatever – to warrant going forward. As long as the decision isn’t arbitrary, discriminatory or made in bad faith, the union acts within its rights. And most local unions do in fact have limited resources, so they decide to pursue to the end (arbitrate) only those cases which they feel are the most advantageous to the bargaining unit as a whole.
Very, very few DFR cases are successful. If an employee decides to pursue a DFR against the union, note there is a six month statute of limitation for suing a union for breach of its duty of fair representation. The claim is filed directly in federal court; if filed in state court, it will certainly be removed (transferred) to federal court, unless one of the state labor relations laws is applicable.
The employee can also file an unfair labor practice claim against the union with the National Labor Relations Board (NLRB), alleging one of the specific unfair labor practices in the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 - 169 (NLRA, also known as Labor Management Relations Act or LMRA). No attorney’s fees are awardable in an NLRB action, and there is a six month statute of limitation.
If you are unhappy with the way your union operates, the best thing you can do is get involved in the union and try to influence its operations. Run for union office. Run for shop steward. Speak up at meetings. The process is just the same as in national and local elections; those who participate and vote are the ones who make the decisions.
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. ***
It's not just YOUR union. In very recent times a number of very prominent and active unions have pulled way back in their practices about what they will take to arbitration. Most will still do the lower-level representation that does not include payment of arbitrator's fees and other arbitration-associated costs.
Presumably this trend of failing to arbitrate reflects significant and real fiscal constraints. I agree that getting involved in the union is critically important. It can also be important to brainstorm with your union rep and governing board whether there are any creative or "halfway" measures that can stretch the union's member services dollar. Very recently I have been involved in an effort to craft an arbitration agreement that includes an agreed-upon limitation of the length of the arbitration hearing and number of witnesses to be called, a contribution by a non-union employee association toward the costs, an agreement with management that the arbitrator's decision will apply to several pending matters, and an agreement with the potential arbitrator that the decision will not be the subject of a written decision, but will be effected with the announcement of a decision. If this works (and it is not yet a done deal), the union's costs for this arbitration will be about 30% of the usual cost, and that should be too "good" a deal for the union to feel confident of refusing. I also counsel a careful exploration of "baseball" arbitration and variations of that as a measure to reduce the union's costs and enable arbitrations where the union is not otherwise willing.
Employee control and participation in the local's business decisions is the critical element.
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.