How Can a Union Owe a Non-Represented Employee a Duty of Fair Representation?

By Larry Cary, Esq.

Larry Cary Esq., Cary Kane LLP

The NLRB Says Watch-Out When Merging Shops with Both Union and Non-Union Workers

A recent decision by the National Labor Relations Board makes it clear that even though a union does not owe a duty of fair representation to non-union employees when their workplace is being merged into a union shop, it can violate the law if the union discriminates against them because of their non-membership in the union.

The case involves Kirk Rammage, who worked for 15 years as a sales representative for Interstate Bakeries Corp., and was the most senior employee in the shop. Inadvertently, his position was left out of the bargaining unit when the Labor Board conducted a union representation election. His non-union status was fine with him. Rammage worked for many years receiving company benefits and not paying union dues. The Union did not learn of his presence until Interstate Bakeries decided to merge his shop with another one represented by the same union.

In the discussions over how to deal with seniority rights in the newly merged shop, Interstate Bakeries and the union agreed to dovetail everyone’s seniority except Rammage’s. Dovetailing means the two seniority lists were merged into one list with each person’s placement on the list depending on their previous seniority date. Rammage was end-tailed, meaning his seniority date began when he first came into the merged bargaining unit. The union said it believed it would violate its duty of fair representation to its membership if the union granted him greater seniority over bargaining unit employees.

In its decision, the Labor Board recognized that unions do not breach the duty of fair representation when they end-tail the seniority of workers from an unrepresented shop being merged into a union shop – the union is merely protecting unit seniority rights in the unionized shop. On the other hand, when a union represents both shops in a merger the union must dovetail seniority in the newly merged shop because it owes a duty of fair representation to each group of employees not to prefer one group over the other.

Ironically, here, because the Union dovetailed the seniority dates of the two union represented groups and end-tailed Rammage, the Labor Board found the union violated the law’s prohibition against unlawful discrimination because it treated Rammage differently based on his union status. The Board recognized that the union could lawfully treat Rammage differently than the others when merging the two shops so long as the seniority list dovetailed only “any preexisting enforceable seniority rights.” In other words, since Rammage did not have a preexisting seniority right under the union contract it is possible he could wind up with the least seniority in the bargaining unit, but that was “not the rationale” the union and employer offered for his treatment. This means the legality of the conduct may turn on what is said about the reason for the disparate treatment. Here, the employer told Rammage that “union seniority” was being used when a union member bumped Rammage from his route and, as mentioned, the union said it would not dovetail his seniority because it thought doing so would breach its duty of fair representation to its membership.

See Interstate Bakeries Corp., 357 NLRB No. 4 (June 30, 2011).