Knowing Your Rights Under the LRMDA and NLRA
Staying compliant with the complex and numerous federal statutory schemes that govern unions and their members is a daunting but important union duty. A union accused of discriminating against a union member, whether that be in an election or with regard to a suspension or expulsion, must show compliance with the Labor-Management Relations Disclosure Act (” LMRDA”) and the National Labor Relations Act (NLRA) or the union could be faced with lengthy and difficult investigative procedures and suit in federal court.
Union member rights relating to union elections are protected under the LMRDA. Under the LMRDA, if a union member believes she has been discriminated against, or believes the election itself was not compliant with the LMRDA, must first utilize the grievance procedures outlined in the union Bylaws. If the grievance process lasts more than three months without resolution, that member may go directly to the U.S. Department of Labor (“DOL”) to file a complaint. The DOL has the final authority, or “preemptive” jurisdiction over an internal arbitration or state court action.
The DOL acting on behalf of the member may subpoena witnesses and documents to determine whether or not there is probable cause that the discrimination took place. If it is determined that no discrimination took place, the case is closed and may be appealed only through the civil court system. If it is found that the union failed to run a fair election, the DOL may work with the union to redress the grievance including conducting a new election. If the union refuses, the DOL has the authority to file a civil suit against the union in federal court to compel a new election.
A union member also has the opportunity to file an unlawful labor practice charge with the National Labor Relations Board if that member believes he or she was expelled or suspended from the union wrongfully, or if that member believes she or he was not represented fairly by the union. (Duty of Fair Representation Charge) A member may also bring a charge against a union if she or he believes that a certification of a union as the bargaining agent was done improperly. These charges are investigated by the NLRB similarly to how an investigation is run by the DOL. A determination by the Regional NLRB agent may be appealed to the General Counsel, the highest office of the NLRB. Once the appeal runs its course through the NLRB, the determination may then be appealed to the appellate court level.
Because compliance with the LMRDA and NLRA is complicated and can be overwhelming, national unions should consult their attorneys to review their Bylaws, expulsion/suspension hearings, member communications, and elections processes before an election or any steps are taken that affect member rights occurs to prevent member complaints and costly federal action.