A Day Late, A Lawsuit Lost

Christopher Noonan, a fire captain, was terminated from his employment with the City of Ann Arbor, Michigan Fire Department on December 27, 2007. Noonan was alleged to have threatened subordinates and to have had a gun in his personal vehicle on the Department’s premises in violation of a Departmental rule.

Noonan challenged his termination through the grievance procedure in the City’s contract with the Ann Arbor Fire Fighters Association. On March 7, 2008, the Association’s president called Noonan to explain that the membership had voted not to proceed to arbitration with his grievance. This was the first occasion in the last 16 years where the Association had refused to arbitrate a termination grievance.

Noonan filed an unfair labor practice complaint alleging that the Association breached its duty of fair representation by refusing to arbitrate his grievance. Under Michigan law, unfair labor practice complaints have to be filed no more than six months after the event giving rise to the alleged unfair labor practice. Noonan’s complaint was filed six months and one day after he was notified of the Association’s decision not to arbitrate.

Michigan’s Employment Relations Commission dismissed the complaint for untimeliness. The Commission found that it “does not have authority to remedy unfair labor practices occurring more than six months before the date that the charge is filed. The statute of limitations is jurisdictional. The limitation period commences when the person knows of the act which caused his injury and has good reason to believe that the act was improper. When the claim is that a union has failed or refused to take action on behalf of a member, the statute of limitations begins to run when the charging party should have reasonably realized that the union would not act on his or her behalf.”

The Commission also observed that even had the complaint been timely filed, Noonan would have lost. The Commission found that as long as “the Association exercises its discretion in good faith, a union has considerable latitude in deciding how or whether to proceed with a particular grievance. A union must be allowed to evaluate each grievance on its individual merit. Because the union owes a duty to its membership as a whole, it has the right to weigh the cost of arbitration against the likelihood of success. When a union makes a deliberate decision not to pursue a grievance, that decision is not arbitrary as long as it is within a broad range of reasonableness. The fact an individual member is dissatisfied with a union’s efforts or its ultimate decision is insufficient to demonstrate a breach of the duty of fair representation.”

Ann Arbor Fire Fighters Association, Case No. CU08 I-045 (Michigan ERC 2009).

This article appears in the November 2009 issue