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Duty Of Fair Representation Jurisprudential Reform:

Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration by Mitchell H. Rubinstein*
42 U. Michigan J. L. Reform 517 (Spring 2009)
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=493458#ByDownloads

In this Law Review article Professor Rubinstein considers what he describes as ?One of the best kept secrets in American labor law.? The secret: the duty of fair representation jurisprudence simply does not work!

Professor Rubinstein explains:

1. 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.

2. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation.

3. It does not work for defendant employers because they are often brought into these lawsuits because they have the ?deep pockets.?

Professor Rubinstein 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.

For other Law Review articles by Professor Rubinstein that may be downloaded, go to:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=493458#ByDownloads

*Adjunct Professor of Law, St. John?s Law School and New York Law School. Editor, Adjunct Law Professor Blog, http://www.lawprofessors.typepad.com/adjunctprofs; B.S., Cornell University School of Industrial and Labor Relations; J.D. with distinction, Hofstra University School of Law. Professor Rubinstein practices labor law in New York City, has published several law review articles and welcomes comments. He may be reached at professorrubinstein@gmail.com.

Full post as published by New York Public Personnel Law on April 15, 2009 (boomark / email).