Duty of Fair Representation

ISSUES

 

Union Responsibility as
“Exclusive Representative”:

 

• The duty of fair representation is the legal duty of a union to equally, and in good faith, represent every employee in a bargaining unit, regardless of whether the employee is a union member or not.

 

• This legal duty arises out of the exclusive representative status unions hold under the National Labor Relations Act in the private sector and under state collective bargaining laws in the public sector.

 

• The duty requires three things on the part of the union: all members’ interests be served without hostility or discrimination; that discretion be exercised with good faith and honesty; and that the union not act arbitrarily.

 

• If basic United Federation LEOS-PBA principles in grievance handling are followed there should not be a problem with a “failure to represent” charge.

 

Imagine this situation. Ralph thinks he has a problem and goes to his steward. “I didn’t get paid for the holiday last Friday,” he says.

 

“Do you know why?” the steward asks.

“My boss says it’s because I didn’t work the day before the holiday,” Ralph says.

“Well did you?” Joan the steward asks.

“No, but I had a good reason not to. My boss has been getting on my back and I needed to teach him a lesson, so I didn’t come in on Thursday.”

“You know the contract says you have to work the day before and the day after a holiday. We don’t like it, but for now that’s the way it is.” Joan says.

“Well, my boss is a jerk and I can prove it. I want to file a grievance.” Ralph insists.

 

WHAT SHOULD A STEWARD DO?

 

In the United Federation LEOS-PBA we know that a big part of our job as a steward is to protect the gains we have won in our contracts, to fight to improve our wages, hours and working conditions, and to defend workers against injustice from management.

 

We also know that sometimes we have to defend workers that we or others may not personally like, because we must defend a principle bigger than the individual person.

 

Throughout the years a legal principle has been developed by the National Labor Relations Board called “the duty of fair representation” (DFR). This legal principle quite simply states that a union must represent all workers equally and without prejudice. A union cannot refuse to represent or improperly represent a worker due to the worker’s age, race, creed, nationality, sex, religion, political beliefs, union status or personality. If a union fails to represent a worker due to prejudice, or hostility, the union can be charged.

 

The idea of failure to represent includes failing to properly investigate a grievance, process a grievance, or in some cases, even to arbitrate a grievance.

 

The duty to represent all workers is especially true in the case where a non-member or anti-union worker files a grievance. Personal feelings or the feelings of the membership cannot be allowed to interfere with the processing of that person’s grievance.

 

The key factor in a “failure to represent” case is that the union knowingly commits these acts because of prejudice or hostility towards an individual. If an honest mistake is made, that is not considered to be “failure to represent.” If basic United Federation LEOS-PBA principles in grievance handling are followed there should not be a problem with “failure to represent” charges.

 

Example: A union loses a case because they missed the time table for advancing the grievance to the next step. The grievant files a complaint that the union violated the duty of fair representation because they missed the time limit. In this case, normally the union would not be found guilty of a DFR unless it could be proven that the union missed the time limit because they were prejudiced or hostile against the grievant for some reason.

 

WHAT SHOULD BE DONE

 

• Here are some basic guidelines:

• Proper Grievance Handling-

• Listen to the worker’s complaint(s) -don’t blow them off.

• Investigate what happened, don’t accept the bosses’ word as fact.

• If the worker wants to file a first step grievance, file it, even if you’re not sure of its merits.

• Keep all notes of the investigation.

• Discuss the grievance with the grievance committee or chief steward. Make a collective decision on processing the grievance to the next step.

• Keep the worker or workers involved in the grievance fully informed about what is happening to their grievance. If you must make a compromise settlement, make sure the reason for that decision is explained and fully understood.

• Never allow prejudicial statements to be made about the grievant in a discussion on whether to file their grievance.

• If there is a debate at a union meeting over whether or not to take a grievance to arbitration, make sure the grievance is debated solely on its merits. If one of the officers is personally involved, he or she should excuse themselves from the vote.

• The person chairing the union meeting must rule any derogatory discussion of the individual out of order. The minutes of the meeting should clearly note that such discussion was ruled out of order. If the members vote not to take a case to arbitration because the person who filed the grievance is anti-union, the union can be charged and will most likely lose. If the case involves back pay, the union may be liable for paying that worker’s back wages.