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National Labor Relations Board

 


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Duty of Fair Representation

The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act and was soon extended to unions certified under the National Labor Relations Act (NLRA).

A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.

Who Is Covered

 Anyone under Taft-Hartley, federal employees. The duty requires that the Union represent the interests of all employees fairly and impartially. The Union may refuse to file or process a grievance for any number of reasons so long as they are valid; it may not arbitrarily refuse to process a meritorious grievance or decline to proceed to arbitration because of hostility to the grievant or irrelevant and invidious considerations. Thus, while no employee has a right to have his grievance processed or taken to arbitration if the Union determines, in its discretion, that it lacks merit, still the union may not refuse to process or go to arbitration on a meritorious claim simply because the grievant is widely disliked . The right to speak for all employees in the bargaining unit carries with it the corresponding duty to protect them as well. Fair representation applies to negotiations, the decision to process or not process a grievance and the way in which a grievance is in fact processed, through arbitration.

A. Standard of Conduct

  1. The exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.
  2. Neither negligence nor a mistake in judgment on the part of the Union will support a claim that a Union breached the duty of fair representation.
  3. A breach of duty of fair representation occurs when the Union acts based on improper motivation or in a manner which is arbitrary, perfunctory or inexcusably neglectful.
  4. Since a Union will often be required to represent different and conflicting interest, it is allowed a wide range of reasonableness in fulfilling its statutory duties.

B. Negotiations

The Union is allowed a wide range of reasonableness in serving the bargaining unit it represents, subject to good faith in the exercise of its discretion. Although ordinary negligence doesn't amount to a breach, a lack of a rational basis for Union decision and egregious unfairness or reckless omissions or disregard for individual employees' fights may constitute a breach.

C. Contract Administration

Arbitrariness or bad faith will not be inferred in the decision making process solely because the Union's contractual analysis was unartful, unskillful, or erroneous.

D. Duty to Investigate

  1. The investigation must be sufficient enough to permit the Union to make a reasoned judgment about the merits of the grievance, rather than an arbitrary choice.
  2. Where the Union decides not to bring a grievance forward based on its interpretation of clear contractual language, the Union does not have to investigate because the facts are irrelevant.

E. Duty in Member vs. Member Conflicts

Subject to the standards of avoiding improper motivation, arbitrariness, perfunctory conduct or inexcusable neglect, the Union may lawfully interpret the contract in a manner which prefers the rights of one employee over another, even though it has a statutory duty to represent both.

In many cases of conflicting interests of employees, such as vacancies and layoffs, the Union must notify employees of grievances that may adversely affect their job rights and must investigate their competing claims in good faith. before deriding whether to pursue the grievances.

In order to be considered a breach of the duty of fair representation, conduct usually has to involve more than ordinary negligence.

Disclaimer: This information is not a substitute for legal advice.

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