Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, June 9, 2008

Union Member Breach of Contract Claim Against Union Preempted By Duty of Fair Representation

9thcircuit Atkins v. Alvarez, __F.3d__ (9th Cir. May 22, 2008), is a somewhat unusual case. The court held that a former members' state law breach of contract claim against the secretary-treasurer and the union president was preempted by the statutory duty of fair representation under the NLRA.

The plaintiffs, apprarently aware of the difficulty in proving a breach of the duty of fair representation sought to assert state law claims. In finding that such claims were preempted by the duty of fair representation, the court reasoned:

The federal statutory duty which unions owe their members
to represent them fairly also displaces state law that
would impose duties upon unions by virtue of their status as
the workers’ exclusive collective bargaining representative.
State law may “constitute an impermissible obstacle to the
accomplishment of purposes of Congress by regulating conduct
that federal law has chosen to leave unregulated.” Condon
v. United Steelworkers of Am., 683 F.2d 590, 594 (1st
Cir. 1982). The doctrine of fair representation serves both as
a limited check on the arbitrary exercise of union power and,
through its limitations, allows unions wide latitude in effectively
serving the interests of the bargaining unit. See United
Steel Workers of Am. v. Rawson, 495 U.S. 362, 374 (1990).
To bring a successful state law action, aggrieved workers
must make a showing of additional duties, if they exist,
beyond the normal incidents of the union-employee relationship.
Id. Such duties must derive from sources other than the
union’s status as its members’ exclusive collective bargaining
representative, such as an express provision of the collective
bargaining agreement or a collateral contract. Id.

The plaintiffs were unable to make any showing of additional duties beyond the normal incidents of the union-member relationship, such as an express provision of a collective bargaining agreement or collateral contract that imposed additional enforceable duties upon the union. Therefore, the case against the union was dismissed.

Mitchell H. Rubinstein

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