Tuesday, April 14, 2009

Rubinstein on Reforming DFR

Rubinstein Mitchell Rubinstein (Adjunct Prof Blog, adjunct at St. John's & NYLS) has just posted on SSRN his article (forthcoming 42 Mich. J. L. Ref.) Duty of Fair Representation Jurisprudential Reform: The Need to Adjudicate Disputes in Internal Union Review Tribunals and the Forgotten Remedy of Re-Arbitration.  Here's the abstract:

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the “deep pockets.”

This Article makes two proposals to reform duty of fair representation jurisprudence. First, this Article posits that putative plaintiffs should be required to have their claims adjudicated before internal union review tribunals as opposed to courts. This internal tribunal system, if procedurally and substantively fair, would provide unions with a complete defense to duty of fair representation claims. This would move most duty of fair representation disputes from the ex-post stage (after a court dispute has arisen) to the ex-ante stage (before a court dispute has arisen) and reduce unnecessary litigation. Second, this Article argues that the current system needs to be “tweaked” to return to the original Vaca v. Sipes, 386 U.S. 171 (1967), intent of utilizing rearbitration as a remedy, as distinguished from money damages, when a breach of the duty of fair representation is found.

This is a very timely article, given Justice Thomas's recent statement in 14 Penn Plaza that any ills caused by union arbitration of discrimination grievances are solved by the availability of DFR suits.



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Very Good Point that unions basically do not have a Duty For Representation as all they have to do is say they are afraid that they might lose. If there investigations are negligent it is of no importance as there is no penalty for that.

Posted by: jedisawyer | Apr 22, 2009 11:26:53 PM

I am union employee for american airlines local 502 i wa fired 04 and was never represented under dfr status i had and attorney that was scared when fighting aa not the union because he felt that a dfr was not the way to go so we went no ware with litagaton he quit on me im still fight the workers comp case but need some help on civil case he abndon on in the courts time is a issue because of statue of limitation in filing of 05 and 06 if i can get some direction in with way to go or if you can assist me it would be great, ps thaks alot jonathan i have lot of records on he union that attorneys don't have on unions.

Posted by: Jonathan Higginbotham | Sep 30, 2009 8:20:00 AM

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