Original format: Arbitration5.19.03
M E M O
TO: ALAA Members
FR: Michael Letwin
CDD-Brooklyn; Former President (1989-2002)
RE: Consideration of Arbitration Requests
DA: May 19, 2003
On May 20, the Delegate Council will consider Ted Herlich’s request that the union arbitrate his recent discharge. Herlich, a nonmember Staff Attorney who repeatedly violated ALAA picket lines in the early 1990s, was fired for sending a racist and sexist e-mail message to Theresa de León, LAS Chief Operating Officer.
This memo draws no conclusions about the merits of Herlich’s request, which will be addressed by union counsel. Instead, it seeks to correct widespread confusion about: (1) The union’s obligations to a nonmember; (2) The union’s duty to arbitrate; (3) The process for considering arbitration; and (4) Speech rights at the workplace.
Union Obligations to a Nonmember in the Bargaining Unit
The Legal Aid Society is an agency shop, i.e., “[a] workplace in which not all employees are required to join the union as a condition of employment, but those who don’t must pay the union a service fee equal to dues.” The Union Steward’s Complete Guide 211 (David Prosten ed, UCS Inc., 1997). In this context, ALAA is the “exclusive bargaining representative” for all Staff Attorneys, Collective Bargaining Agreement (CBA) §§ 1.1.1-1.1.2, including those who do not join, or who resign from, the union.
Nonmembers have no right to participate in union activities, Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. 402 § 3(o)[FN1], but the union owes members and nonmembers alike an identical duty of fair representation “both in its collective bargaining . . . and in its enforcement of the resulting collective bargaining agreement.” Vaca v. Sipes, 386 U.S. 171, 177 (1967).
The Union’s Duty to Arbitrate
The decision about whether to move a grievance to arbitration belongs not to any individual, but rests exclusively in the union. CBA § 1.8.6. The union has no legal duty to arbitrate all grievances, or even all strong grievances, but it must “in good faith and in a nonarbitrary manner make decisions as to the merits of particular grievances.” Vaca, at 194. This duty of fair representation is breached “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith,” id., at 190, i.e., “only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ . . . as to be irrational.” Air Line Pilots Ass’n, Intern. v. O’Neill, 499 U.S. 65, 67 (1991).
As the International UAW explains:
No individual member has an absolute right to insist that a grievance be pursued through any particular step of the procedure. The Union may screen grievances and press only those it concludes should be pursued in terms of benefit to the unit as a whole and to take into account such matters as time, expenses, and other considerations. Stated differently, the Union may fail to initiate or process and may settle or withdraw a grievance for any valid reason as long as there is a reason and the Union has some reasonable basis for its action.
Grievance Handlers’ Pocket Guide 166 (UAW Education Dept., 1996).
Process for Considering Arbitration
In deciding whether to arbitrate a grievance, the ALAA Delegate Council (elected officers and delegates) takes into account such issues as the union’s factual investigation, arbitration costs,[FN2] and legal counsel’s opinion about the likelihood of success. The DC has invariably followed counsel’s recommendation.
Speech Rights at the Workplace
The First Amendment does not apply to the employee-employer relationship at the Legal Aid Society, a private employer, Lefcourt v. Legal Aid Soc., 312 F. Supp. 1105 (S.D.N.Y. 1970), aff’d, 445 F.2d 1150 (2d. Cir. 1971). CBA § 3.5 and the National Labor Relations Act do guarantee certain employee speech rights, but do not protect behavior that contributes to a race- or gender-hostile environment at the workplace. CBA §§ 3.1.1-3.1.2; Equal Employment Opportunities Act (Title VII of the Civil Rights Act), 42 U.S.C. § 2000e et seq. Thus, Society policy prohibits:
Slurs, jokes, statements, remarks, questions, or gestures that are derogatory or demeaning to an individual’s or group’s characteristics or that promote negative stereotypes. . . . The prohibitions contained in this policy extend to all work and work-related communications, activities, behavior, and media that impact Legal Aid employees, including e-mail and office or work space display of materials . . .
Policy and Procedure Against Discrimination, paras. IV(A), VII (The Legal Aid Society, May 1, 2001). (Emphasis added.)
[FN1]These activities include voting on contracts, electing representatives, attending meetings, using the ALAA e-mail discussion group, etc.
[FN 2]Arbitration fees are born equally by the Society and the Union, CBA § 1.8.5; the Union also bears costs for its legal counsel.