DUTY OF FAIR REPRESENTATION

The "duty of fair representation" (DFR) is a term of art which means different things for different circumstances. The duty to provide fair representation is the baseline. Unions are charged with the responsibility of representing employee's interests fairly and impartially.

"Duty" refers to the purposes for which the union was formed and the obligations imposed upon it by statute or the courts. "Duty" does not include optional services, such as insurance, counseling, 24-hour assistance, and lawsuits.

"Fair" means to even-handedly provide representation and to make decisions that are neither arbitrary nor discriminatory. Arbitrary or bad faith conduct is commonly defined as the absence of honest purpose and judgment, and/or the presence of hostility or discrimination. Arbitrary also means that a union may refuse to process a grievance or handle a disciplinary issue in a particular manner for a multitude of reasons but it may not do so without reason.

"Representation" means those activities involving the advancement or defense of those things which directly affect a member's employment, such as wages, grievances, disciplinary actions and other typical union activities for which the union represents the employee by statute, MOU, case law or bylaws.

In the event of a DFR lawsuit against the union the courts' focus of inquiry is the union's good faith in the handling of an employee's issue. The union's conduct and representation becomes unfair when it is arbitrary, discriminatory, or in bad faith. A union has substantial discretion (unless the collective bargaining agreement or bylaws provide otherwise) to decide whether a grievance, for example, should be taken to arbitration. A union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion, but it may in good faith decide that a grievance should not be processed for such reasons as being unmeritorious.

An association is not required to process every grievance to arbitration, but the failure to process the grievance in the first place, unless there is a good reason not to do so, could be a DFR violation. Courts have held unions to a high standard of care in their handling of grievance time limits. A union need not process an employee's grievance if the chances for success in arbitration are slight.

Membership Dues. DFR can be violated if dues are spent on illegal or immoral purposes. Otherwise, a union may generally spend its money as it sees fit, pursuant to its bylaws.

Bylaws. Violation of the bylaws by the association board or an individual member rarely raises a DFR issue. A significant exception exists where a member is denied a right granted by the bylaws and where the past practice has been to provide that right to other members.

An employee organization is not barred from agreeing to an MOU which may have unfavorable effects on some members, but a bargaining representative must not make discriminatory contracts based on irrelevant and invidious considerations, such as race.

Violations. When a violation of the duty of fair representation occurs, an injured employee may sue in superior court to obtain an injunction and ask for damages. Prior to going to court, the member must exhaust internal union remedies, if any, to vindicate his/her complaint, unless the member is claiming discrimination, or where the member can show that union officials are hostile to the member, or where exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing.

The courts are somewhat divided over what kind of association misconduct can constitute a breach of the duty of fair representation. Generally speaking, the courts have established that mere negligence will not suffice to establish a breach of DFR, meaning that some sort of intentional misconduct must be involved. Courts have used such phrases as "severely" deficient union conduct, "the complete extinguishment of an employee's grievance rights, "reckless" disregard of the employee's rights" and "inaction without a rational basis."An association is not required to process every grievance to arbitration, but the failure to process the grievance in the first place, unless there is a good reason not to do so, could be a DFR violation. Courts have held unions to a high standard of care in their handling of grievance time limits. A union need not process an employee's grievance if the chances for success in arbitration are slight.

Membership Dues. DFR can be violated if dues are spent on illegal or immoral purposes. Otherwise, a union may generally spend its money as it sees fit, pursuant to its bylaws.

Bylaws. Violation of the bylaws by the association board or an individual member rarely raises a DFR issue. A significant exception exists where a member is denied a right granted by the bylaws and where the past practice has been to provide that right to other members.

An employee organization is not barred from agreeing to an MOU which may have unfavorable effects on some members, but a bargaining representative must not make discriminatory contracts based on irrelevant and invidious considerations, such as race.

Violations. When a violation of the duty of fair representation occurs, an injured employee may sue in superior court to obtain an injunction and ask for damages. Prior to going to court, the member must exhaust internal union remedies, if any, to vindicate his/her complaint, unless the member is claiming discrimination, or where the member can show that union officials are hostile to the member, or where exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing.

The courts are somewhat divided over what kind of association misconduct can constitute a breach of the duty of fair representation. Generally speaking, the courts have established that mere negligence will not suffice to establish a breach of DFR, meaning that some sort of intentional misconduct must be involved. Courts have used such phrases as "severely" deficient union conduct, "the complete extinguishment of an employee's grievance rights, "reckless" disregard of the employee's rights" and "inaction without a rational basis."

Ineptitude or mismanagement on the union's part is not a DFR violation.  What the courts seem to be looking for is arbitrary, irrelevant, invidious, or unfair conduct which significantly impedes or extinguishes an employee's rights.

Inadequate representation is not a breach of the duty where the union acts in good faith, meaning that it was not negligent in performing its representational duties.