The Duty of Fair Representation
Unions are the exclusive representatives of the workers in the bargaining unit. This role of representative carries with it the responsibility to fairly represent all members of the bargaining unit, regardless of the race, color, sex, political views within the union, and even regardless of whether or not they belong to the union. Failure to fairly represent all workers can subject the union to a lawsuit from a worker who believes that he or she was discriminated against by the union. The Supreme Court has held that the union breeches its duty of fair representation when its actions are "arbitrary, discriminatory, or in bad faith".
To ensure that the union is fulfilling its obligation to fairly represent the workers, a local union should follow some guidelines. These include:
1. We are grieving a one-day suspension. The grievant wants us to go to arbitration, but this could cost the union $2,000 in legal expenses. It seems foolish to spend this much money for one day's pay, especially when the union is low on funds. Do we have to arbitrate?
2. A worker was suspended for two weeks because of absenteeism. At the third step of the grievance procedure, the company offered one week's back pay. We thing this is a reasonable settlement, but the employee wants us to go to arbitration to get full back pay. If we accept the company's offer, can the employee sue us?
3. Several female employees have complained about sexual harassment from a supervisor. We have a non-discrimination clause in the contract and deferral of a grievance pending completion of an EEO complaint. I'd rather not file a grievance and just let them go through EEO, because I am afraid that the company will get its back up, and this will jeopardize several other important grievances that are currently pending a decision. Can we do this?
5. Two employees were suspended for one week for serious insubordination. At the first step of the grievance procedure, the company offered to reinstate one employee with back pay if we dropped the grievance of the second worker. Can we do this without risking a DFR suit?
8. We voted not to take an insubordination grievance to arbitration, because we were afraid of losing the case and setting a bad precedent. The worker says she is willing to pay the arbitration expenses herself and to hire her own attorney. Under these circumstances, can the union still refuse to allow the case to go to arbitration?
9. We lost an arbitration over a discharge. The worker wants us to appeal the arbitrator's decision to court. Our lawyer says this would be useless, but the employee is threatening to sue the union if we don't do it. Should we file the appeal?
13. Fred Freeloader is not a union member. What's worse, he is constantly bad-mouthing the union. Yesterday he approached his steward saying that the company had awarded a job posting to someone with less seniority although Fred had the qualifications. Can we tell Fred that he must join the union before we'll represent him?
14. Last week I missed a time limit for appealing a grievance to the third step. The company will not let me file it now. I had a lot on my mind and just forgot even though I thought it was a legitimate grievance. Can the union be found guilty?
Duty of Fair Representation Answers
1. Not necessarily. Unions are entitled to consider the financial costs of arbitration. A union with a small treasury may not be able to arbitrate a case that a larger union could take on. The NLRA is not violated when a union, in good faith, declines to arbitrate for financial reasons. But, cost considerations carry less weight as the importance of the grievance increases. Discharge cases are the most important. Unless the case is hopeless, a union will be hard pressed to justify a decision not to arbitrate solely because of the expense. [next question]
Not successfully. A union is allowed to compromise a
grievance, as long as it has good reasons and is not settling
because of hostility toward the grievant.
No. File a grievance against the harassment. A union
cannot refuse to file a grievance because it fears management's
biased reactions. Failure to enforce the contract's prohibition
against sex discrimination could subject the union to a DFR case at
the NLRB, or even more damaging, a civil rights lawsuit in court.
4. Yes. Probationary employees are part of the bargaining unit. They may not be able to use the just-cause for discharge clause, but they are usually covered by other contract provisions, such as prohibitions against race or sex discrimination. [next question]
No. Swapping grievances is dangerous. The employee
whose grievance is dropped may try to
establish a DFR case on the
grounds that the union represented him or her less vigorously than
the other employee. Nevertheless, if the union is certain
that the second grievant would have no chance of success at an
arbitration, it cannot be faulted for making a tradeoff settlement
to guarantee success on the first employee's grievance. (But it's
No. Although union representatives are expected to act
as an employee's advocate and to present grievances in the best
possible light, they do not have to take ridiculous positions. Prior
to arbitration, unions retain considerable discretion and may at
times openly admit that a grievance does not have merit.
7. Yes, if the union feels that the interests of the bargaining unit as a whole require it to continue the grievance. [next question]
8. Yes. The decision to arbitrate is the union's and the union's alone. Individuals cannot compel arbitration by offering to pay the expenses. [next question]
9. No. It is generally held that a union's obligation under the duty of fair representation extends only to contract procedures, such as filing grievances and going to arbitration. Unions do not have to file court appeals when they lose at arbitration. [next question]
10. He or she must file within six months. The six-month period begins the day the employee is notified that the union has decided not to continue the grievance. If the employee waits longer to file, the suit would be barred by the statute of limitations. This is an important reason why union representatives should inform employees when grievances are dropped and should record the date of the conversation. [next question]
11. No. DFR lawsuits may only be brought against unions. Stewards or union officers cannot be held personally liable. [next question]
12. No. You should always grieve a discharge case. Without a full investigation, you do not know for sure anyway who is at fault. However, you may have grounds not to take it to arbitration. [next question]
Absolutely not. The union is legally required to
represent all employees in the bargaining unit whether or not they
are members. No matter how distasteful Fred's behavior is, you must
not discriminate against him because he's not in the union. Even
"going through the motions" could land the union in trouble.