NLRB General Counsel Issues Memo Changing Duty of Fair Representation Standard

Peter Robb, the General Counsel for the National Labor Relations Board, issued a memo to the Regional Directors on September 14, 2018, with new instructions on how to handle duty of fair representation (DFR) unfair labor practice claims.  Under the National Labor Relations Act, unions owe a duty of fair representation to all employees they represent.  It is well established that a union breaches its duty when its conduct is arbitrary, discriminatory, or in bad faith, but not when it is “merely negligent.” The Memo outlines the General Counsel’s new approach to DFR charges, which greatly expands the situations in which a union breaches the DFR.  The Memo also instructs Regional Directors to adopt this new approach, even though it “may be inconsistent with the way the Board and Regional Directors have historically interpreted duty of fair representation law.”

The Memo specifies two situations where the General Counsel believes a union’s conduct in handling a grievance goes beyond “mere negligence” and violates the DFR.  First, the Memo directs the Regions to charge a union with breaching the DFR if the union has “lost track, misplaced or otherwise forgotten about a grievance,” unless the union proves it had a reasonable procedure or system in place to track the grievances, which “was not effective in this particular case for an identifiable and clearly enunciated reason.”

Second, the Memo directs the Regions to charge a union with breaching the DFR if the union fails to “communicate decisions related to a grievance or to respond to inquiries for information or documents by a charging party,” unless the union “has a reasonable excuse or meaningful explanation.” Thus, according to the General Counsel, “a union’s failure to return phone calls or emails or other efforts by the charging party to inquire about a grievance or attempt to file one, constitutes more than mere negligence.”

The Memo will almost certainly result in an increase in DFR charges against labor unions.  To help defend against such claims, unions should maintain a system for tracking grievances. Likewise, it is important for unions to keep grievants informed about the progress of their grievances, respond to inquiries from grievants, and document the communications they have with grievants.