The National Labor Relations Act (NLRA) regulates numerous interactions related to to labor organizing. It allows employees to assert New Jersey sex discrimination claims against both employers and unions for unfair labor practices. Labor unions’ obligations under the NLRA include a duty of fair representation. A recent decision by the National Labor Relations Board (NLRB) addressed an employee’s claim that a labor union breached this duty by discriminating against her on the basis of sex. The ruling harshly criticized the administrative law judge (ALJ) who ruled in the union’s favor. The NLRB vacated the ALJ’s ruling, finding that he “erred by relying in part on improper bases in making his credibility determinations.” International Longshoremen’s Association, Local 28 (Ceres Gulf Inc.) (“ILA”), 366 NLRB No. 20 at 1 (Feb. 20, 2018).
Labor organizations commit an unfair labor practice when they “restrain or coerce employees in the exercise of the rights guaranteed” by the NLRA. 29 U.S.C. § 158(b)(1)(A). Courts have identified specific ways that labor unions might unlawfully interfere with employees’ NLRA rights. The U.S. Supreme Court has held that a union has a duty “to represent nonunion or minority union members…without hostile discrimination, fairly, impartially, and in good faith.” Steele v. Louisville & N. R. Co., 323 U.S. 192, 204 (1944). A union violates the duty of fair representation “when it acts in a manner that is ‘arbitrary, discriminatory, or in bad faith.’” Vaca v. Sipes, 386 U.S. 171, 207 (1967). The NLRB views a breach of the duty of fair representation as an unfair labor practice.
The charging party in ILA has been a member of the union since 2001, usually working as a truck driver. According to the ALJ’s ruling, she began receiving union work referrals again in 2015 after an eight-year “union employment break.” ILA at 2. She alleges that she asked the union’s training coordinator to put her in training classes offered by the union several times during 2016, but he refused all of her requests. She further alleges that the coordinator sexually harassed her “when she periodically stopped by [his] office to request training.” Id. at 3. She allegedly made 36 requests for training, and she experienced sexual harassment while making 10 of those requests. She filed a complaint with the NLRB, alleging breach of the duty of fair representation through sex discrimination. She claimed that the coordinator denied her training opportunities because of her sex, and also because she refused his advances.
The ALJ dismissed her complaint in its entirety, in part based on a conclusion that she did not present a credible case. The ruling described the charging party as “a tough woman who performs stevedoring work on the docks and previously drove a truck in Iraq.” Id. From this, the ALJ concluded that “[i]t is simply implausible that [she]…would have meekly allowed [him] to harass and assault her a whopping 10 times.” Id.
The General Counsel argued to the NLRB that the ALJ’s findings “were based on sex stereotypes and demonstrated bias.” Id. at 1. The NLRB agreed. It vacated the ruling and remanded the case with specific instructions to assign a different ALJ to hear the case.
If you are involved in a dispute with an employer in New Jersey or New York, the gender discrimination attorneys at the Resnick Law Group are available to help you. You can contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to discuss your case.
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NLRB Judge Rules in Favor of Workers in Wrongful Termination Claim, The New Jersey Employment Law Firm Blog, July 10, 2017