In that context I am repeating an important post that outlines a case where a NAGE member in good standing (and a Steward!) was abandoned by NAGE, but successfully pressed his claims of NAGE's failure in their duty of fair representation.
With lay-offs coming it behooves you to be prepared for the dirty underhanded tricks that have been employed by NAGE in the past, in an effort shirk their duties to you the members.......
Here's my favorite line fromm the frivolous appeal NAGE filed in repsonse to the LRC finding that they had miserably failed to represent a member who paid his dues and got nothin in return.... but grief:
NAGE's argument that it would be burdensome to process grievances when many members have, as here, been laid off. Apart from the remarkable suggestion that grievances may be ignored because it is hard work to process them, NAGE has conceded that it simply neglected Moshkovitz's grievance. The LRC was warranted, on the substantial evidence, in concluding that NAGE had violated its fair duty of representation to Moshkovitz by failing to process his grievance.(No wonder NAGE never provides the membership with regular reports on the processing and outcomes of grievances!.....ws)
Here's the post:
NAGE screwed brother Moshkovitz.....
AND they'll screw YOU too!
Here's what brother M got from NAGE in his time of need, and here's what you might expect to get from the self-serving ingrates at NAGE ... in return for your hard earned and ever increasing dues:
This sad story comes as no surprise to any of us who've taken the time to look into the shadowy, secretive and self-dealing practices of the scallywags at NAGE.... why is it that they continually fail and refuse to provide regular financial and operational reporting to the members who fund their enterprise?
Hey, they may need our dues to pay for their exorbitant salaries, their expense accounts, their fancy banquets and x-mas parties,.... oh and don't forget the million$ they ship directly to the social engineers and legends-in-their-own-minds at SEIU international for their irrelevant causes.....
....and, They don't mind spending your dough trying to organize illegal immigrants, but they've got nothing for you dues payers, when you need it.....
.....Based on Brother M's tale.... I think its fair to infer that these self-serving scum don't want to spend a nickel on the interests of the members who are actually paying them ... "representational expenses" in NAGE-speak means paying obscene salaries to do-nothing "officers", lay-abouts and their relatives at NAGE headquarters, but does not apparently include prosecuting the individual rights of dues paying members..... well not if it takes any real effort or costs any money!!!!
In fact, based on this case, one can conclude that NAGE isn't willing to spend any of it's due$ hoard DEFENDING the rights of individual members, but they are only too willing to spend it, big time, on legal fees in attempts to the trample the rights of their own members under bargaining agreements and state law...
......but anyway on with the Ballad of Herbert M ....
Laid off and abandoned by NAGE
Herbet Moshkovitz, was a tax examiner and a NAGE member "in good standing." He was laid off from his position at DOR.
He filed,with NAGE, two grievances and a request to exercise his bumping and transfer rights under the collective bargaining agreement. Herb found out that being a member of NAGE, is more like being bent over a chair with your shorts on backwards, than being "in good standing". Unfortunately brothers and sisters, you're likely to suffer same fate if you put your faith in NAGE....
NAGE never responded to Moshkovitz, and, indeed, NAGE conceded (in court and Labor Relations Commission proceedings) that it never investigated, or even evaluated his grievances, letters,or requests for representation !.... sound familiar?
The scum!, after taking his dues for years, they chose simply to ignore his pleas for representation.... Hey, his usefulness to the Burgin Parkway Bandits was at an end after all.... he'd been laid off and his dues were no longer being deducted from his pay check. It was Probably the first time brother M ever asked anything of the NAGE , they just gave him the brush-off.... I ask you folks, can a Union go any lower than that?.... (by the way this was one of the cases that inspired Judge Brown's rant about NAGE.)
NAGE tried the old flim-flam.... but Herb Moshkovitz out-smarted them.Herb was smart cookie, all his dealings with NAGE were IN WRITING, TIMELY and sent REGISTERED MAIL...... Moshkovitz probably had good reason to think he'd better put everything in writing and keep copies...... having been a NAGE UNION STEWARD , no doubt he knew the kind of underhanded treatment he could expect .... scallywags would likely have just denied, denied, denied..... look how these dissembling scum handled things even when Herb had them dead to rights!
SO, LESSON NUMBER ONE learned from Herb's resounding victory, is when your dealing with these slippery weasels ....don't trust them and put things in writing, and send them registered, return receipt requested so you have proof you sent it (and of course you need to keep copies of everything.)
LRC -Labor Relations CommissionArmed with copies of his correspondence, grievances and the proof they had been filed with NAGE in timely fashion, he charged unfair labor practice with the Mass Labor Relations Commission.
NAGE's lame defense before the LRC was that Moshkovitz had failed to follow the correct procedure for filing a grievance and that he had no meritorious grievance. (And the guy had been a STEWARD for Christ's sake, can you imagine the run-around an ordinary member would have gotten?)
The LRC found that Moshkovitz's notices of grievances were sent registered mail in timely fashion to all persons required to receive them at NAGE and DOR. NAGE did not elaborate why it thought Moshkovitz's grievance letters inadequate.
Neither the LRC nor the Appeals Court were persuaded by NAGE's lame arguments that since Moshkovitz's grievances were not written on the correct "form" or letter head that they were "procedurally" flawed and therefore NAGE was entitled to ignore them...(what crap!). As to the merits of his grievances, the LRC determined that Moshkovitz had an arguable complaint on both the issue of promotion and the issue of how DOR went about selecting who was to be laid off.
NAGE, the LRC found, had done worse than decline consciously to represent Moshkovitz in his grievances; it simply ignored him. The union made no effort to advise Moshkovitz about how to proceed with his grievances after, by reason of his lay-off, he had ceased being a union steward. The LRC further found that an arbitrator might reasonably have found Moshkovitz entitled to a remedy on the basis of the two grievances he had alleged.
Frivolous APPEALIn a fruitless and mean-sprited attempt to crush Moshkovitz and trample his rights (by using his own dues money against him) NAGE appealed the finding of the LRC.
The appeals court disposed of the frivolous appeal with tongue planted firmly in cheek and noted in relevant part:
In light of NAGE's undertaking to represent its members and avowed skill in so doing, the defense of improper processing by its member is redolent of afterthought, rather than a rational policy related to legitimate union purpose. See Pattison v. Labor Relations Commn., 30 Mass. App. Ct. at 16-17 (union's justification of technical processing failures by employee rejected). Similarly an apparent afterthought is NAGE's argument that it would be burdensome to process grievances when many members have, as here, been laid off. Apart from the remarkable suggestion that grievances may be ignored because it is hard work to process them, NAGE has conceded that it simply neglected Moshkovitz's grievance. The LRC was warranted, on the substantial evidence, in concluding that NAGE had violated its fair duty of representation to Moshkovitz by failing to process his grievance.If you'd like to read the whole case here it is.....
Once the LRC had made its findings and rulings, there was no reasonable expectation of reversal by an appellate court. The appeal was frivolous. Acting under Mass.R.A.P. 25, as amended, 376 Mass. 949 (1979), we order that NAGE pay to the LRC just damages of $2,000, and that its counsel on appeal pay to the LRC just damages of $1,000. See Allen v. Batchelder, 17 Mass. App. Ct. 453, 457-458 (1984).
NATL. ASSN. OF GOVT. EMP. v. LABOR REL. COMMN., 38 Mass. App. Ct. 611 (1995)
650 N.E.2d 101
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES vs. LABOR RELATIONS COMMISSION.
No. 94-P-354.
Appeals Court of Massachusetts.
Suffolk.
February 7, 1995.
May 26, 1995.
Present: BROWN, KASS, & GREENBERG, JJ.
Labor, Fair representation by union, Action against labor union. Contract, Collective bargaining contract. Labor Relations Commission.
The Labor Relations Commission's determination that a union had violated its duty of fair representation to a union member was supported by substantial evidence. [612-614] A frivolous appeal warranted this court's award of just damages to the appellee pursuant to the provisions of Mass.R.App.P. 25. [614]
APPEAL from a decision of the Labor Relations Commission.
Mark J. Dalton for the plaintiff.
Tammy Brynie for the defendant.
KASS, J.
After an evidentiary hearing and findings by the hearing examiner, the Labor Relations Commission (LRC) decided that National Association of Government Employees (NAGE) had violated its duty of fair representation to one of its members, Herbert Moshkovitz. The LRC ordered a variety of remedies to compensate Moshkovitz and, as well, ordered NAGE to post ostentatiously a notice confessing its errors and announcing that it would sin no more — at least not in the same way. NAGE has appealed. See G.L.c. 150E, § 11, par. 4. We affirm.
Moshkovitz, a tax examiner in the Department of Revenue (DOR), had been laid off in the spring of 1991, a fate he shared with eighty-seven other DOR employees. He was one of thirteen tax examiners being laid off out of twenty-three who had an original "hire date" with DOR of July 10, 1988. Page 612
The collective bargaining agreement between NAGE and DOR contained machinery allowing discharged employees with the requisite skills to bump those with less seniority but contained no provision for retention priorities among those with equal seniority. By letters dated March 25, 1991, and March 29, 1991, Moshkovitz notified NAGE of two grievances and a request to exercise certain "bump and transfer" rights. One of the two grievances protested the promotion of two employees by DOR without posting the promotion opportunity, as required by the collective bargaining agreement. The point here was that, had Moshkovitz achieved the higher position, he might have escaped the reduction in force in tax examiners. Moshkovitz's second grievance protested that his layoff had been determined in an unfairly discriminatory fashion considering his attendance, evaluations, and "other variables." Those notifications of grievance and request to the union anticipated the announced layoff. The termination ax in fact fell on Moshkovitz on April 5, 1991.
On May 10, 1991, Moshkovitz wrote to John Bent, the NAGE representative for his bargaining unit, that he had yet to hear from NAGE about his grievances and request. He added, "I am writing you with full expectation that the union will be representing me, and any others who may have similar concerns." NAGE never responded to Moshkovitz, and, indeed, NAGE concedes that it never investigated or evaluated his grievances, letters, or requests for representation.
NAGE's defense before the LRC was that Moshkovitz had failed to follow the correct procedure for filing a grievance and that he had no meritorious grievance. The LRC found that Moshkovitz's notices of grievances were sent registered mail in timely fashion to all persons required to receive them at NAGE and DOR. NAGE does not elaborate why it thought Moshkovitz's grievance letters inadequate. In its brief before us, NAGE makes invidious comparisons between those letters and grievances filed on NAGE grievance complaint forms. We are not persuaded by an argument that Moshkovitz's grievances stand or fall on whether he wrote to Page 613 the union on the right letterhead. As to the merits of his grievances, the LRC determined that Moshkovitz had an arguable complaint on both the issue of promotion and the issue of how DOR went about selecting who was to be laid off.
A union has a duty to represent its members fairly in connection with issues that arise under a collective bargaining unit. Vaca v. Sipes, 386 U.S. 171, 177 (1967). Switzer v. Labor Relations Commn., 36 Mass. App. Ct. 565, 567 (1994). In the discharge of that duty, there is room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake or negligence about whether a grievance ought to be pressed. That fairly generous scope for inaction is exceeded when the union's conduct is arbitrary, discriminatory, in bad faith, or (and this may be a variant on arbitrary conduct) grossly inattentive or grossly negligent. Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 606 (1990). Trinque v. Mount Wachusett Community College Faculty Assn., 14 Mass. App. Ct. 191, 197-202 (1982). Baker v. Local 2977, State Council 93, Am. Fedn. of State, County & Municipal Employees, 25 Mass. App. Ct. 439, 441-442 (1988). Pattison v. Labor Relations Commn., 30 Mass. App. Ct. 9, 16 (1991).
NAGE, the LRC found, had done worse than decline consciously to represent Moshkovitz in his grievances; it simply ignored him. The union made no effort to advise Moshkovitz about how to proceed with his grievances after, by reason of his lay-off, he had ceased being a union steward. The LRC further found that an arbitrator might reasonably have found Moshkovitz entitled to a remedy on the basis of the two grievances he had alleged. Reviewing courts generally accord substantial deference to determinations by the LRC, assuming, as here, settled legal standards, that a party has committed a prohibited labor practice. Quincy City Hosp. v. Labor Relations Commn., 400 Mass. 745, 749 (1987). Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991). Pattison v. Labor Relations Page 614 Commn., 30 Mass. App. Ct. at 16. Felton v. Labor Relations Commn., 33 Mass. App. Ct. 926, 927 (1992). We are not disposed to discuss cavils of the union such as whether Moshkovitz improperly combined Step 1 and Step 2 grievances in one document. There was substantial evidence to support the LRC's underlying point that Moshkovitz properly processed his claim up to the time he was laid off and that NAGE failed entirely to continue the process thereafter. In light of NAGE's undertaking to represent its members and avowed skill in so doing, the defense of improper processing by its member is redolent of afterthought, rather than a rational policy related to legitimate union purpose. See Pattison v. Labor Relations Commn., 30 Mass. App. Ct. at 16-17 (union's justification of technical processing failures by employee rejected). Similarly an apparent afterthought is NAGE's argument that it would be burdensome to process grievances when many members have, as here, been laid off. Apart from the remarkable suggestion that grievances may be ignored because it is hard work to process them, NAGE has conceded that it simply neglected Moshkovitz's grievance. The LRC was warranted, on the substantial evidence, in concluding that NAGE had violated its fair duty of representation to Moshkovitz by failing to process his grievance.
Once the LRC had made its findings and rulings, there was no reasonable expectation of reversal by an appellate court. The appeal was frivolous. Acting under Mass.R.A.P. 25, as amended, 376 Mass. 949 (1979), we order that NAGE pay to the LRC just damages of $2,000, and that its counsel on appeal pay to the LRC just damages of $1,000. See Allen v. Batchelder, 17 Mass. App. Ct. 453, 457-458 (1984).
Decision of Labor Relations Commission affirmed.
Page 615
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