UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION – Mode or Adequacy of Representation/Advocacy

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800.05000 – Mode or Adequacy of Representation/Advocacy

Though mere negligence or poor judgment in handling a grievance do not constitute a breach of the duty of fair representation, a union’s negligence may rise to the level of arbitrary conduct in cases where the individual interest is strong and the union’s failure to perform a ministerial act completely extinguishes the employee’s right to pursue his claim. (p. 8.)

When a union’s failure to fairly represent an employee in grievance processing is so extreme that it cannot be relied on to represent the employee further in the proceeding, potential remedies include an order to pay outside counsel to represent the employee or to reimburse the employee’s attorney fees. (pp. 8-9.) Attorney fees, however, may only be awarded when the employee hires private counsel to pursue the claims in the grievance impacted by the union’s unlawful conduct. (p. 10.) Because the employee’s lawsuit against her employer did not encompass the MOU violation alleged in her grievance, attorney fees were not justified as damages for the union’s violation. (p. 11.)