The Duty of Fair Representation is the obligation, incumbent upon
U.S. labor unions that are the exclusive bargaining representative of workers
in a particular group, to represent all those employees fairly, in good faith,
and without discrimination. Originally recognized by the United States Supreme
Court in a series of cases in the mid-1940s involving racial discrimination
by railway workers' unions covered by the Railway Labor Act, the duty of fair
representation also applies to workers covered by the National Labor Relations
Act and, depending on the terms of the statute, to public sector workers covered
by state and local laws regulating labor relations.
The duty applies to virtually every action that a union might take in dealing
with an employer as the representative of employees, from its negotiation of
the terms of a collective bargaining agreement, to its handling of grievances
arising under that agreement, as well as its operation of an exclusive hiring
hall and its enforcement of the union security provisions of a collective bargaining
Duty of Fair Representation
The statutory fight of exclusive representation mandates fair representation of
all members of a bargaining unit. This obligation emanates from Section 5 of
Chapter 150E. This section also provides for the processing of grievances by
individual employees without interference from the Union, provided that the union
has the opportunity to be present at any adjustment, and that such adjustment is
not inconsistent with the provisions of the Agreement.
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 (or is a non-member). 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,
A. Standard of Conduct
- 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.
- Neither negligence nor a mistake in judgement on the part of the Union
will support a claim that a Union breached the duty of fair representation.
- 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
- 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.
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
D. Duty to Investigate
- The investigation must be sufficient enough to permit the Union to make
a reasoned judgement about the merits of the grievance, rather than an arbitrary
- 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.
F. Sexual Harassment
A Union has the discretion to refuse to pursue a grievance protesting sexual
harassment provided the decision is not motivated by sex discrimination or other
hostility toward the grievant, and it is based on the Union's assessment of the
merits of the grievance after an investigation of the employees' competing claims.
G. Grievance Summary
Seven golden rules for Unions:
1) Consider all grievances solely on the merits;
2) Investigate each grievance promptly and vigorously;
3) Do not miss time limits;
4) Keep a record;
5) Keep the grievant informed;
6) Have a valid reason for any action;
7) If the grievance lacks merit, drop it.
H. Arbitration Summary
Avoid the following:
l) Failure to make a decision on whether or not to arbitrate;
2) Failure to notify the grievant of a decision not to arbitrate in time for
the grievant to pursue other available remedies;
3) Refusing to arbitrate solely because of expense to the Association or hostility
toward the grievant;
4) Poor quality of presentation (extreme negligence in investigating, extreme
passivity in presenting the case);
5) Perfunctory handling of an arbitration case which effectively prevents any
factual proof of the grievant's position.
In order to be considered a breach of the duty of fair representation, conduct
usually has to involve more than ordinary negligence.