A recent memo by the National Labor Relations Board General Counsel makes it easier for workers to take action against their union for negligence.

Union Negligence

All laborers have a duty to fairly represent their members in filing and prosecuting grievances. A breach of that duty is an unfair labor practice. But after a fumbled grievance, unions could traditionally assert a “mere negligence” defense.

However, the General Counsel’s position is that negligence can rise to the level of arbitrary conduct necessary to find that an unfair labor practice occurred. Going forward, a labor union will be required to show that they have procedures in place to properly track grievances. There is no bright-line rule, though, so any analysis will depend on the facts of each case.

The policy change comes after a half-dozen states, including union-heavy ones like Wisconsin, Michigan, and Indiana, have adopted right-to-work laws in recent years. The laws prohibit workers from being obligated to join a union or financially support one as a condition of employment. Even in these states, unions are still obligated to represent all workers in the workplace. There are likely more unions being obligated to do work on behalf of nonmembers.

But how does this affect Michigan public employees and their labor union? That’s not exactly clear. In many cases, the Michigan Employment Relations Commission relies on national precedent. So, all labor workers should be on the lookout.