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Ask Maverick Your Own Question
Maverick, Lawyer
Category: Employment Law
Satisfied Customers: 5720
Experience:  20 years professional experience
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I work at the Port Isabel Detention Center i was layed off

Customer Question

I work at the Port Isabel Detention Center i was layed off due to a new contract on Febuary 1 2015, .I was on a recall list for 18 months because we have a union (CBA).The company decided to hire a supervisor a month later from the out side they did not follow the aggreement on the CBA.I have read it and it states clearly that they must follow the recall list if the company decided to hire again which they did without following the CBA.Can i sue the company and the Union by not representing me?
Submitted: 5 months ago.
Category: Employment Law
Expert:  Maverick replied 5 months ago.
Welcome to Just Answer (“JA”)! My name is Maverick. Please note that: (A) The information we provide is general information. No attorney-client relationship or privilege is formed by communicating with me. If you want legal advice, you must consult with a local attorney in person before acting or deciding not to act based on any information given here; (B) Experts answer questions based on the honor system. When I feel that I have provided you with a complete answer, I will ask for you to assign a feedback rating so that JA will compensate me for my time; and (C) You should not be concerned about any short delays between your questions and my replies. Please know that I answer most questions within the hour if I am signed on. If I am not signed on, then I still make every attempt to respond within 24 hours. Thank you for taking the time to understand how this site works. By continuing, you confirm that you understand and agree to these terms. Answer will follow in the pane below as per above parameters….
Customer: replied 5 months ago.
I will be waiting for a response.
Expert:  Maverick replied 5 months ago.
ANSWER: Yes, there is a good possibility for sue either or both of them under the law below: 13.1 EMPLOYEE CLAIM AGAINST UNION AND/OR EMPLOYER—LABOR MANAGEMENT RELATIONS ACT (LMRA) § 301 (29 U.S.C. § 185) In order to prevail, you must prove each of the following by a preponderance of the evidence:1. that the plaintiff was discharged from employment by the employer;2. that such discharge was without "just cause"; and3. that the union breached its duty to fairly represent the plaintiff’s interests under the collective bargaining agreement. MORE TO COME....
Expert:  Maverick replied 5 months ago.
Under the law, an employer may not discharge an employee governed by a collective bargaining agreement, unless "just cause" exists for the employee’s dismissal. The term "just cause" means a real cause or basis for dismissal as distinguished from an arbitrary whim or caprice; that is, some cause or ground that a reasonable employer, acting in good faith in similar circumstances, would regard as a good and sufficient basis for terminating the services of an employee.A union has a duty under the law to represent fairly the interests of its members in protecting their rights under a collective bargaining agreement. However, an individual employee does not have an absolute right to require the employee’s union to pursue a grievance against the employer. A union has considerable discretion in controlling the grievance and arbitration procedure. The question is not whether the employee is satisfied with the union representation or whether that representation was perfect.Breach of the duty of fair representation occurs only where a union acting in bad faith or in an arbitrary or discriminatory manner fails to process a meritorious grievance. So long as the union acts in good faith, it may exercise its discretion in determining whether to pursue or process an employee’s grievance against the employer. Even if an employee’s grievance has merit, the union’s mere negligence or its exercise of poor judgment does not constitute a breach of its duty of fair representation.MORE TO COME...
Expert:  Maverick replied 5 months ago.
This law applies when an employee or former employee files a suit against either the union or employer. It also applies in a hybrid suit against the employer and union. A plaintiff may decide to sue one defendant and not the other, but must prove the same case whether the suit is against one defendant or both. SEE Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry, 494 U.S. 558, 564 (1990) (explaining that most collective bargaining agreements accord finality to grievance procedures established by the agreement).To support a breach of the duty of fair representation claim, you must prove that the employer’s action violated the terms of the collective bargaining agreement and that the union breached its duty to act honestly and in good faith and to avoid arbitrary conduct. Id. at 563; see also Hines v. Anchor Motor Freight, 424 U.S. 554, 564 (1976) (union is always subject to complete good faith and honesty of purpose in the exercise of its discretion); Vaca v. Sipes, 386 U.S. 171, 177 (1967).A union is not liable for merely negligent conduct. See United States Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73 (1990); Slevira v. Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir.2000). Breach of the duty of fair representation occurs only when a union’s conduct is arbitrary, discriminatory, or in bad faith. See id. For example, "[a] union breaches its [duty of fair representation] if it ignores a meritorious grievance or processes it in a perfunctory manner." Conkle v. Jeong, 73 F.3d 909, 916 (9th Cir.1995) (citing Vaca, 386 U.S. at 191).A union’s actions are arbitrary "only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be ‘irrational.’" Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 67 (1991). See also Conkle, 73 F.3d at 915-16 (holding that a union’s decision is arbitrary if it lacks a rational basis); Johnson v. United States Postal Serv., 756 F.2d 1461, 1465 (9th Cir.1985) (holding that reckless disregard may constitute arbitrary conduct); Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir.1982) (defining arbitrary as the "egregious disregard for the right of union members").To establish that a union acted in "bad faith," a plaintiff must provide "substantial evidence of fraud, deceitful action, or dishonest conduct," Humphrey v. Moore, 375 U.S. 335, 348 (1964), or evidence that the union was motivated by personal animus toward the plaintiff. See Conkle, 73 F.3d at 916 (including personal animus as basis for finding of bad faith).
Customer: replied 5 months ago.
I was going to write a grievance but the union rep told me that i had no case.I talked to the Project manager about this but just gave me bullshit.
Expert:  Maverick replied 5 months ago.
It sounds like they are just trying to get you to go away quietly. I tried to accept you phone call request but it says payment was declined. Did the above information answer your question?
Customer: replied 5 months ago.
Can you recomend a good lawyer in Brownsville Texas?
Expert:  Maverick replied 5 months ago.
We are not permitted to recommend an particular lawyer to JA customers; however you can contact the STate Bar for a referral here. You are looking for a labor law attorney that represents employees. You can also try this GOOGLE search results and pick one that you are comfortable with.
Customer: replied 5 months ago.
Thank you .You have been very very helpfull I will proceed with this all the way .By the way you were right I have 16years working at the facility and they dont want to pay me my sick leave or vacations that i have earned .they rather pay somebody new .
Expert:  Maverick replied 5 months ago.
Your welcome....hope things work out for you on this...
Expert:  Maverick replied 5 months ago.
If you are satisfied with this answer can you please assign a 4 or 5 star rating so this question may be closed. Thank you.