By Joe Forward, Legal Writer, State Bar of Wisconsin
Sept. 1, 2010 – Without an arbitrary act on the part of a labor union, the labor union does not breach its duty of representation in representing a union member. That is, the non-arbitrary acts of a labor union cannot be aggregated to create arbitrariness on the whole, a Wisconsin Appeals Court recently held.
In Service Employees International Union Local No. 150 v. Wisconsin Employment Relations Commission, 2009AP1524 (Aug. 24, 2010), the appeals court ruled that a labor union did not act arbitrarily and thus did not breach its duty of representation in representing a Milwaukee Public School teacher who was terminated in 2004.
In its opinion, the appeals court explained that the Wisconsin Employment Relations Commission (WERC) “has never before held that various substantially different actions, none of which are arbitrary individually, can nonetheless become arbitrary in the aggregate and thereby support a determination that the union breached its duty of fair representation.”
Milwaukee Public Schools (MPS) terminated teacher Karen Bishop in 2004 on the alleged grounds that Bishop pushed a child and had a poor record of attendance. Nearly two years later, Bishop filed a prohibited practice complaint against MPS and her union, Service Employees International Union Local No. 150 (SEIU).
The complaint alleged that in terminating Bishop, MPS violated the collective bargaining agreement between teachers and the school district. The complaint also alleged that SEIU breached its duty of representation in handling Bishop’s grievance against MPS.
In early 2007, WERC determined that SEIU breached its duty of fair representation, and ordered SEIU to reimburse Bishop for the costs associated with challenging the termination and to post workplace notifications of the decision.
WERC found that SEIU’s conduct was “arbitrary” and amounted to a breach of the duty of representation largely because the union representatives failed to inform Bishop that her grievance may have lacked merit and SEIU did not plan to arbitrate, caused undue delays, and failed to discuss facts with Bishop and other witnesses that MPS relied on to terminate Bishop.
WERC also determined that MPS violated the bargaining agreement because the grounds for Bishop’s termination were not supported by a preponderance of the evidence. WERC ordered MPS to reinstate Bishop and pay her two years of back pay.
MPS did not appeal the WERC decision, but SEIU filed a petition for review in the Milwaukee County Circuit Court, which affirmed. SEIU then appealed the circuit court’s decision.
Duty of representation
Noting the duty of representation as a “judicially created doctrine,” the appeals court refused to apply “great weight deference” to WERC’s decision as a state agency.
Under the U.S. Supreme Court case of Vaca v. Sipes, 386 U.S. 171 (1967), the appeals court explained, the union’s conduct does not cause a duty of representation breach unless the representation of a union member is arbitrary, discriminatory, or in bad faith.
The appeals court agreed with SEIU that negligent processing, failure to communicate, or unwise or improvident decision-making on the part of the union does not necessarily evidence arbitrary conduct. It rejected WERC’s conclusion that SEIU’s conduct in processing Bishop’s grievance was, taken as a whole, arbitrary and “did not adequately protect” her interests.
The court analogized the case to Saunders v. Youth Craft Coats & Suits, Inc., 700 F.2d 1226 (8th Cir. 1983), in which the court held that a union did not breach the duty of representation where the employee’s desire for back pay, not the union’s failure to advise the employee on the merits of her grievance, led the employee to reject an offer from the employer.
During the grievance process, Bishop twice rejected MPS’s job reinstatement offer because it did not provide for back pay. The court recognized Bishop’s rejection as an important distinction from the facts of Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082 (9th Cir. 1978), a case that WERC cited to support its conclusion in favor of Bishop.
Unlike Robesky, the appeals court explained, “the uncontradicted facts in the record support the inference that Bishop’s unmet demands are what motivated her rejection of the offers to settle, not SEIU’s failure to tell her it thought her case was weak or that it would not proceed to arbitration.” In other words, SEIU’s conduct did not “severely prejudice” Bishop’s decisions.
The appeals court also rejected WERC’s conclusion that SEIU’s conduct, “taken as a whole,” constituted arbitrary conduct. That analysis is problematic and is “hardly clear guidance,” the court explained, “because it makes it impossible for unions attempting to govern their conduct to know what conduct WERC will consider arbitrary.”
The court reversed the WERC order that required SEIU to pay for the costs associated with Bishop’s grievance and post notification of the decision in the workplace.
