By: Mitchell H. Rubinstein
An individual employee is not a party to the collective
bargaining agreement between a union and an employer.
Additionally, under the terms of most collective bargaining
agreements, the union owns the arbitration procedure, and
therefore, it is entirely up to the union whether it will proceed
with the arbitration. As a party to the arbitration, it is
also the union’s decision whether to appeal any adverse arbitration
award. Stated another way, the grievant simply does not have
standing to proceed without the support of his or her union.
Under existing law, if the union does not agree that an
arbitration case has merit, there is very little an individual
employee can do other than to sue the union for breach of the duty
of fair representation. This Article argues, however, that
there is a way to avoid hostility and unnecessary litigation in a
way which will satisfy the grievant, his or her union, and perhaps
even the employer. It is submitted that in certain cases the
union could assign its right to proceed with the arbitration to the
grievant. The grievant would have his day in court, and the
union would not have to bear the time and considerable expense of
arbitration with respect to a claim it believed either lacked merit
or which should be presented by the individual grievant.
To this commentator’s astonishment, there is no academic
commentary addressing the important issue of whether or not unions
can assign their right to arbitrate or their right to appeal to an
individual grievant. Additionally, there are only three
judicial decisions on this issue, and all three opinions arose in
the public sector. In all three of these decisions, the
courts held that the union could not make the assignment. As
explained in this Article, a close examination of these decisions
demonstrates that all three of these decisions were wrongly
decided.