By Jim Cline and Abagail Klonsinski
In King County Metro, Examiner Todd granted summary judgment for the Union, finding that the Union did not breach their duty of fair representation (DFR) when it withdrew his grievance from arbitration. The Complainant ultimately failed to produce evidence which showed the Union had acted in an arbitrary manner or bad faith when making their decision, so summary judgment was appropriate in favor of the Union.
Complainant, a part-time transit operator, was affected by schedule reassignment due to King County Metro (Metro) reducing its service hours amidst the COVID-19 pandemic. Metro and the Union negotiated an MOA regarding reassignment and payment guarantees. Complainant was one of 18 employees who submitted grievances regarding pay differences between their chosen assignments and their reassignment routes. The Union chose one of the other 18 grievances as the “lead” grievance, and Complainant’s grievance was held in abeyance.
The lead grievance was processed according to the parties’ CBA and ultimately, the union attorney advised against further advancing the grievance, writing an opinion memo to the Union indicating that an arbitrator would be unlikely to sustain the lead grievance. As a result, the Union withdrew the lead grievance and all related grievances, including the complainant’s grievance.
Complainant alleged the Union violated their DFR when the Union president withdrew his grievance. The Union released a public statement in its monthly publication noting that the lead grievance had been withdrawn, but Complainant only received confirmation of his grievance being removed from abeyance and withdrawn after reaching out personally.
The Union argued Complainant had constructive notice of the withdrawal and had failed to file his unfair labor practice complaint in a timely manner. It also argued that unions have substantial discretion in decision making and here, the Union used such discretion, relying on the advice of counsel and the parties’ MOA to make their decision to withdraw the grievances.
Ultimately, Examiner Todd found that Complainant’s ULP complaint was untimely due to his constructive notice of the withdrawal. Further, Examiner Todd noted, even if the complaint had been timely, there was no showing of arbitrary, discriminatory, or bad faith in the Union’s decision to withdraw the complaints. The Union’s considerations for withdrawing the grievances were not irrelevant, invidious, or unfair. Complainant’s disapproval of the Union’s decision and the lack of communication did not rise to a level of bad faith. Thus, Complainant failed to prove the Union had violated its duty of fair representation and summary judgment was granted.
The Examiner’s summary decision here indicates the difficulty that grievants have in establishing DFR claims. As the Examiner explained here, the standard is high: “arbitrary, discriminatory, or in bad faith.” Disagreements with the union’s decision, even if the decision seems illogical or not based on arbitration case law, don’t provide a basis for a DFR lawsuit.
In this case, the Examiner also appropriately cited the fact that the Union was relying on the assessment of the grievance by the union attorney. It is the practice of our Firm to routinely issue opinion letters on grievances, especially significant ones. It’s been our expressed view that reliance on the opinion of legal counsel, when combined with a thorough and fair review of the available evidence, provides unions a high degree of protection from DFR claims.
