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John, Attorney
Category: Legal
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Experience:  Licensed and practicing attorney.
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im a police officer with 27 yrs of service, who had neck surgery

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im a police officer with 27 yrs of service, who had neck surgery 15 yrs ago, from an on job injury where I was hit by a drunk driver. I went back to work, and reinjured it in 2012. After out for a year due to complications, I was sent to a city doctor for a fitness for duty exam. City doctor put on report I needed to be retired due to following doctors treatment of pain medication. I was told by supervisors I would be retired. I went to the president of our union for help. In a meeting with him and the lead attorney, who handles our legal plan which states we are entitled to legal rep. for fitness for duty evaluation, President advised me I needed to stop taking the medications, and the union would get me an appt with a neck surgeon to see about repairing a failed fusion. The next day I had another meeting and have president on tape telling me he personally talked with the Chief of police and he assured him he would not retire me, and allow me to stay out till the union could get me an appt with a surgeon. I took myself off doctors meds, and am just dealing with the failed fusion. I kept the union president advised of my doctors visits and was very surprised when they proceeded with retirement hearings against me. I was advised that the union president never talked with the chief. I tried to get the atty who handles the legal plan which I have faithfully paid the dues for 27 years to represent me, but he turned me down, saying everybody has to retire one day, I was advised by someone familiar with what was going on with me that the union president was worried about not representing me, and he had a meeting with his friend the staff attorney to discredit me, in case I try and sue. thats as basic as I can make it. my question is can I bring suit against the union, the president, and the staff atty who will not honor the legal plan which clearly states I am entitled to representation for fitness for duty evaluations, and is this a case where an attorney would take on contingency?

EmplmntLaw1 :

Hi, thanks for submitting your question today and sorry to hear about the employment issue you are having. From my understanding, you have a contractual right to representation in a fitness for duty exam and the union has refused to represent you in the matter; and in fact the president mislead you to believe that any hearing would be delayed until after a second medical opinion was received.

EmplmntLaw1 :

And you would like to know whether you have a potential claim and, if so, is this the type of claim an attorney would take on contingency.

EmplmntLaw1 :

From the fact that you give, it does sound as if you'd have a claim against the union for failure to represent you. Generally a union has a duty represent its members in a manner that is not arbitrary and capricious. Yet in this case you not only found that the president had mislead you to believe that action would be taken, but when it cam down to there being a hearing, the union wouldn't even represent you at the hearing. The critical question in determining whether a union has breached its duty of fair representation is whether its conduct was arbitrary, discriminatory, or in bad faith, so that it undermined the fairness or integrity of the process.

EmplmntLaw1 :

Your union appeared to act arbitrary in not accepting your case - namely you had a definite right to representation at the hearing and it plainly refused to represent you without so much as an explanation apparently.

EmplmntLaw1 :

So, with the detail you given me, I would think there is a likely claim for failure to represent against the union.

EmplmntLaw1 :

The second question you ask is whether cases like this are taken on a contingency. Generally they are not...I suspect because there simply aren't lawyers that do much of this work. For example, if you were a private sector worker and this happened - you'd file a charge against the union with the National Labor Relations Board and they would assign you one of their staff attorneys - there would be no charge. But for public sector workers, like yourself, there is no agency to turn to that will represent you. Likewise, the remedy in the matter could be anything from forcing the union to fairly represent you to giving you some a lawyer working on a contingency - even if he is successful - may not receive much. I'm not saying you unequivocally will not find someone to represent you on a contingency - but I'm doubtful about it.

EmplmntLaw1 :

Let me know if you have any follow up questions or concerns. I'm happy to answer.

Customer: I have found out that my union is affiliated with a national union, would it be wise to consult them over this matter?
EmplmntLaw1 :

Yes, often times the local board members aren't really all that informed.

EmplmntLaw1 :

And the national president/board etc could advise him of the same.

Customer: Well it's more like our local president walks around wanting people to kiss his ring
EmplmntLaw1 :

I understand completely...your case does have merit in any event.

Customer: Is there any organization to file a complaint on the staff attorney not only refusing to represent me when our legal plan states its my right, but also misleads me into believing there's nothing I can do about it, and I find out any decision can be appealed to district court according to Texas labor code?
EmplmntLaw1 :

Yes, you'd file a grievance with the Texas state bar. here:

Customer: Thank you
EmplmntLaw1 :

You're welcome. Please leave a positive rating before you exit this chat as it is the only way I get credit for my answers. If you have any questions in the future regarding this matter come back to this thread and I'll be happy to answer. Thanks and good luck with the matter.

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