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Can a union assign its right to arbitrate to an employee?
May 12, 2007 by Ross Runkel at LawMemo

Collective bargaining agreements provide that the union can arbitrate disputes. They typically do not give the individual employee that right.

Question: Can the union assign its right to arbitrate to an individual employee, so now that right belongs to the employee?

Mitchell H. Rubinstein has an interesting article - Assignment of Labor Arbitration, 81 St. Johns L. R. 41 (2007) - in which he argues that such assignments should be allowed.

The abstract:

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.

Mitchell H. Rubinstein (mrubinst@nysutmail.org) is Senior Counsel to the New York State United Teachers, affiliated with the American Federation of Teachers, National Education Association AFL-CIO in New York City, and is an Adjunct Professor of Law at St. John’s Law School and New York Law School. He received his B.S. degree from Cornell University School of Industrial and Labor Relations and his J.D. degree from Hofstra University School of Law. The views expressed in this article are entirely the author’s, and may not necessarily represent the views of any organization with which he is affiliated.

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