When I have a problem at work it doesn’t seem that my union is union is really trying to help me. My Union is supposed to Help Me. Why don’t they?
You are not alone. Unions in the private sector have drastically declined in terms of bargaining leverage and membership over the last several decades. In all but a few industries (construction, auto workers, airlines), unions have become largely irrelevant in the private sector. With President Trump being able to appoint new members to the NLRB and a Supreme Court justice friendly to management, unions will get even weaker than they are now. Unions are just trying to keep from losing the ground they have now, and they have to pick their fights with management very carefully. Unless you know someone who has influence in the union, they generally don’t care about your problem very much.
Do I have any legal right to make the union pay attention to my problem?
Yes. There is a right to bring a special lawsuit called Duty of Fair Representation (DFR) if the union’s actions are arbitrary, discriminatory, or in bad faith. There is a very short time limit to bring a lawsuit like this, (6 months from when you knew or should have known of the problem) and a lawsuit like this is very difficult to win. You also have the right to file a DFR complaint with the NLRB by going to. You should keep in mind, though, that the union will not be legally required to press every claim, and that the courts recognize the union’s right to select which claims it thinks will or will not be successful. However, if the union is discriminating against a certain group or clearly acting arbitrarily against you, it may be worth pursuing.
As a practical matter, how can I use this to my advantage to get the union to take my problem seriously?
Even though DFR suits are very difficult to win, if you retain a lawyer who writes a letter threating to bring a DFR claim, the union may stop and listen to you. This is because if a DFR claim is brought, the union will get legal bills to defend it, and sitting down and listening to you may be easier and cheaper, than fighting you in court, even if they can win. This is something that has to be done diplomatically, though, because just threating the union will not work well, especially if you have a weak claim.
If the union won’t take my claim to arbitration, can I sue my employer in court?
This depends on what your union contract says. Many times you will still be able to sue the employer without acting through the union, but if the union contract clearly says that arbitration through the union is your only legal remedy, you might not be able to sue. Sometimes judges will allow a lawsuit even in that situation if the union refuses to bring your claim to arbitration, but you must show that you met all of the union contract deadlines for presenting your grievance, and that you pursued every step that was available to you. The courts call this rule “exhaustion of remedies”. This is a very tricky area of law, and if your problem has serious consequences, you should get a complete copy of your union contract (not a summary) and get good legal advice at the beginning, because some of the time limits involved could be very short.
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