Top NLRB Lawyer Wants Law Changed on Union Grievance Requirement

Jan. 16, 2020, 10:42 PM

The National Labor Relations Board’s top lawyer wants the board to overturn Obama-era precedent allowing unions to restrict when members can bring legal claims against them for mishandling grievances.

A National Association of Government Employees affiliate could lawfully say in its constitution and bylaws that members must exhaust internal procedures before filing charges against the union in court or an administrative agency over allegedly botched grievances, the NLRB general counsel’s office said in an advice memorandum made public Wednesday.

Those provisions are legal under the board’s 2016 ruling in IATSE Local 151, but an NLRB regional director should issue a complaint against the NAGE affiliate and use the case as a vehicle for the board to reconsider that decision, according to the memo from the office’s advice division dated April 8.

The case settled in May without a complaint being filed, so the general counsel’s office will have to find another vehicle to try to reduce unions’ power to put off legal claims related to mishandled grievances. The change in precedent sought by the GC’s office could spur more NLRB cases alleging unions violated their duty to fairly represent workers.

The advice memo highlights General Counsel Peter Robb’s focus on scrutinizing unions. Previously, Robb has changed board policy on policing unions and revived cases against unions that field staffers had previously dismissed.

A worker represented by the NAGE affiliate hit the union with an unfair labor practice charge after it failed to fight the worker’s termination from EDP Enterprises, which provides food services at an Army training facility in Missouri. The union missed the deadline to file a grievance, according to the advice memo.

The NAGE affiliate argued that the worker didn’t have standing to file the charge, and didn’t first exhaust internal remedies as mandated by provisions in the union’s constitution and bylaws.

Getting Issue Before the Board

Although the GC’s office concluded that those provisions are lawful, it said they shouldn’t be. The provisions must explicitly refer to the four-month limitation for exhausting internal remedies from the Labor Management Recording and Disclosures Act, the office said.

“Absent that limiting language, employees would reasonably interpret the rule to preclude them from filing a Board charge for the entire duration of the Union’s internal process, even if it extended beyond the six-month limitations period for filing a charge,” the advice memo said.

If the case didn’t settle, then the union would have had to defend the legality of a policy that’s legal under current board law.

Nevertheless, issuing a complaint in that situation would have been consistent with past general counsel efforts to get legal issues before the board to change precedent, said Mark Gaston Pearce, former Democratic NLRB chairman who directs the Workers Rights Institute at Georgetown University Law Center.

An NLRB spokesman and counsel for the NAGE affiliate didn’t respond to a request for comment.

The case is National Association of Government Employees Local R14-139, N.L.R.B. Gen. Coun. Advice Memo., Case 14-CB-227097, Memo made public 1/15/20.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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