Fire Union’s Failure To Challenge Discipline Not Breach Of DFR

Richard Kelly, a Ferndale, Michigan firefighter, brought an unfair labor practice charge against his union, Local 812 of the International Association of Fire Fighters. Kelly claimed that the Union’s failure to arbitrate his grievance challenging a reprimand and two-shift suspension violated Local 812’s duty of fair representation.

Michigan’s Employment Relations Commission dismissed the ULP complaint. The Commission recited the fact that “a union’s duty of fair representation requires it to serve the interests of all members without hostility or discrimination toward any and to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.

“It must be kept in mind that the major goal of the duty of fair representation is to identify and protect individual expectations as far as possible without undermining collective interests. Where the individual and collective group interests clash, the former must yield to the latter. Thus, an individual union member does not have the right to demand that the union take his grievance to arbitration, and the union is not required to pursue every grievance to the highest level but must be permitted to assess each with a view to individual merit.”

With regard to Kelly’s claim, the Commission recounted the efforts Local 812 had made on Kelly’s behalf: “The Union’s representatives investigated the matter, sought legal counsel, and tried to persuade the Employer to change its decision. The Union filed a timely grievance, which was denied. The Union then attempted to appeal the denial of the grievance to the fourth step of the grievance process. Its appeal was untimely. However, the Union was successful in its efforts to have the Employer waive the timeliness issue, and the grievance was taken to the fourth step. Moreover, between the date that the reprimand and suspension were issued and the date the Employer issued its decision at the fourth step, the Union attempted to reach a settlement with the Employer to reduce the discipline.

“During this period, the Union came to recognize that there was little likelihood of showing that the Employer lacked just cause to discipline Kelly and attempted to persuade him to accept the Employer’s settlement offer. Ultimately, the Union’s executive board, based on the advice of its attorney and the evidence regarding the incident, determined that it would not be in the best interest of the Union to proceed to arbitration.

“There is no evidence that the Union was motivated by animosity, bad faith, arbitrariness, or capriciousness in determining that the Union should not arbitrate the grievance regarding the August 6, 2014 reprimand and suspension. The Union could have rationally concluded that arbitration of the grievance would have been unsuccessful because the arbitrator would not credit Kelly’s testimony. Moreover, while the Union’s decision-makers may have been upset by Kelly’s filing of the unfair labor practice charge against the Union, there is no evidence that it affected the Union’s decision to refuse to file a grievance over the December 19, 2014 discipline. Kelly has not shown that the facts of either incident could persuade an arbitrator that the Employer did not act with just cause in disciplining him. In both incidents, the Union had a rational basis for not proceeding further.”

Ferndale Firefighters Association, 30 MPER ¶ 33 (Mich. ERC 2016).