The Duty of Fair Representation
One of the most basic tenets of labor relations is the concept of the Duty of Fair Representation. Simply put, the duty of fair representation imposes upon a union, which has been certified as the exclusive representative of a bargaining unit of employees, the obligation to represent fairly and diligently all employees in the bargaining unit. A Union cannot discriminate against any member of the bargaining unit it represents for any reason, including, but not limited to, union membership.
Even though a Union has a duty of fair representation, it does not have to process as a grievance every complaint it receives from its bargaining unit employees; a Union has wide discretion in fulfilling its representational responsibilities. A decision on whether or not to process a grievance, or at what level and on what basis to settle a grievance, will not violate the duty of fair representation as long as it is made in good faith and is not purposefully discriminatory.
Local Union officers, boards, or committees who are charged with the responsibility of determining whether or not to process or settle a grievance will not violate their responsibility to the employees the Union represents if such determination is made after a thorough investigation and is based on the merits of the case under consideration. Mere negligence by the Union is not sufficient to breach the duty of fair representation; the Union's actions must be purposefully discriminatory or evince bad faith in order for those actions to violate the Union's duty.
To assure that a local Union does not violate its duty of fair representation, follow the following simple rules:
- Don't refuse to file a grievance, or otherwise represent an employee, based on the employee's: Union membership, or lack thereof age; ethnicity; sex or sexual preference; religion; marital status; or nationality. In other words DO NOT DISCRIMINATE!
- Do a thorough investigation of every complaint before making a determination as to whether or not to file a grievance.
- Make all determinations based on the merits of the case.
- When you do file a grievance, adhere to the time limits of your grievance procedure.
- Keep the grievant(s) informed of the status of the grievance.
- When you decide not to process a grievance, not to submit a grievance to arbitration, or to settle a grievance, explain your reasons to the employee(s).
- Take all actions in good faith.
The duty of fair representation applies to situations that lie within the sole control of the Union, such as grievances and arbitration under the collective bargaining agreement. However, the Union can treat employees in the bargaining unit differently under certain circumstances without violating the duty of fair representation. The Union can provide an attorney for a member who has an issue that goes to court for adjudication, and not provide an attorney for a non-member with a similar court case.
The Union can also limit those eligible to run for Union office, vote for Union officers, and attend, and vote at, Union meetings to dues paying members. Be aware, however, that if your contract requires Union membership as a condition of employment, or contains an "agency fee" or "fair share' provision, you must allow all employees in the bargaining unit the opportunity to vote during contract ratification. If your contract does not contain such a provision you can limit the right to vote on contract ratification to dues paying Union members.