Union Can Violate Duty Of Fair Representation By Not Adequately Dealing With Complaints Of Sexual Discrimination

The Nebraska Court of Appeals has held that a labor organization can violate its duty of fair representation by not adequately dealing with complaints of sexual discrimination brought by female members. The case involved Fraternal Order of Police Lodge 8, which represents corrections officers in Douglas County, Nebraska. A group of female members filed an unfair labor practice with Nebraska’s Commission on Industrial Relations (CIR), alleging that Lodge 8 had refused to fairly represent them in collective bargaining and in matters of discipline and grievances.

The heart of the allegations was that Lodge 8 had failed to bargain with the County to seek rule changes concerning (1) using only female guards to supervise female prisoners; (2) denying seniority rights of female guards in bids for work shifts, vacation, overtime, and similar matters; (3) providing adequate relief for female guards to address various sanitary needs; and (4) actively opposing female members’ efforts to secure changes in the terms and conditions of their employment. The members also alleged that Lodge 8 refused to make adequate disclosure to members of the bargaining unit concerning contract negotiations with the County, and denied minority members of the bargaining unit representation in disciplinary matters.

The CIR upheld only a portion of the complaint, but found that Lodge 8 had failed to meet its duty of fair representation by refusing to fairly bargain with Douglas County to obtain rule changes concerning the use of only female guards to supervise female prisoners, the denial of seniority rights of female guards in bids for work shifts, vacation, forced overtime, and similar matters, and providing adequate relief for female guards to address various sanitary needs. Lodge 8 challenged CIR’s decision in the Nebraska Court of Appeals.

By a 2-1 vote, the Court upheld the conclusion that Lodge 8 had violated its duty of fair representation. The Court found that “the female corrections officers presented evidence indicating that the FOP was refusing to fairly represent the females in seeking rule changes concerning their safety and welfare, seniority, and forced overtime. Considering the whole record, and giving weight to the CIR’s judgment concerning the credibility of the various witnesses appearing at the hearing, we affirm the CIR’s factual finding concerning the FOP’s breach of its duty of fair representation.”
A dissenting judge would have dismissed the lawsuit on statute of limitations grounds.

Davis v. Fraternal Order of Police Lodge No. 8 of Douglas County, Nebraska, 2007 WL 1054274 (Neb. App. 2007).

This article appears in the July 2007 issue