The Wisconsin Court of Appeals, one step below the highest level appellate court in Wisconsin, clarified a Union’s liability for claims of violations of its duty of fair representation on August 24, 2010. In the case of Service Employees International Union Local No. 150 v. Wisconsin Employment Relations Commission, Appeal No. 2009AP1524, the appellate court reversed the findings below that SEI violated its duty of fair representation of Karen Bishop, a Milwaukee Public Schools employee and member of the bargaining unit. The Court states that a union violates its duty of fair representation “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” SEIU Local No. 150 at para. 20, citing Vaca, 386 U.S. at 190. Merely rejecting a meritorious claim is not enough. The union’s action must be arbitrary or taken in bad faith. SEIU Local No. 150, at para. 20, citing Mahnke, 66 Wis. 2d at 531.
The issue in SEIU Local 150 related to the “arbitrary” prong of the duty of fair representation when the union did not tell Bishop that it was not going to pursue an arbitration of her grievance when she was considering a settlement offer which she subsequently rejected. Whether something is “arbitrary” is tested under an objective standard (not the actual state of mind of the union actors); while “bad faith” is tested under a subjective standard (the state of mind of the union’s actors). SEIU Local No. 150, at para. 21. In this case, it was an omission-failing to do something-that Bishop claimed violated her rights. The test for arbitrariness in omissions is that the failure to act must be “so egregious, so far short of minimum standards of fairness to the employee and so unrelated to legitimate union interests as to be arbitrary.” SEIU Local No. 150, para. 21.
Ultimately, the Wisconsin Court of Appeals overturned Bishop’s win below, finding that although SEIU failed in certain respects with regard to its duties to Bishop and these failures caused delays in the process, none of these deficiencies actually prejudiced Bishop. SEIU Local No. 150, para. 48. In other words, SEIU made mistakes, but they did not cause the harm that Bishop sought to remedy—not taking a particular offer.
The Court also rejected a “totality of the circumstances” legal standard that WERC used to find a violation. WERC found that none of the deficiencies were alone enough to find arbitrary conduct under the law, but that taken together, the arbitrary standard was satisfied. The Court said this standard must be rejected because it provides no guidance to unions in evaluating their duties of fair representation because on one hand, WERC says a particular act or omission is not arbitrary, but then if combined with other non-arbitrary acts, these may be arbitrary at some point. SEIU Local No. 150, para. 54-55.