Board of Trustees, University of the District of Columbia v. Myers

SCHWELB, Associate Judge,

concurring in part and concurring in the judgment:

Time has not altered my view that District of Columbia v. Thompson, 593 A.2d 621 (D.C.), cert. denied, 502 U.S. 942, 112 S.Ct. 380, 116 L.Ed.2d 331 (1991) (Thompson II), was incorrectly decided. See id. at 636-40 (Schwelb, J., dissenting). Thompson II and now Wilson v. District of Columbia, 608 A.2d 161 (D.C.1992) (per curiam) being with us, however, I cannot fault my colleagues’ view that, under the Master Agreement, Professor Myers cannot simply skip Level Four. The Agreement states that the union “may” commence an arbitration proceeding, but this does not mean that it can arbitrarily refuse to represent a member with a meritorious complaint. On the contrary, in the processing of a grievance,

*649[t]he union need not, and may not, sacrifice the rights of the individual to what it deems to be in the interests of the union as a whole, as it often must do during contract negotiations.

Thomas v. United Parcel Service, Inc., 890 F.2d 909, 919 (7th Cir.1989) (emphasis added); see also Dement v. Richmond, Fredericksburg & Potomac R. Co., 845 F.2d 451, 457, 459-60 (4th Cir.1988).

An attempt by Professor Myers to compel the union to arbitrate his grievance would not necessarily have been futile. Given Thompson II and the Master Agreement, UDC had a right to expect that it could arbitrate with the union instead of litigating against Myers as an individual.