The Union’s Duty of Fair Representation

Information from AFM Symphonic Services:

There is an increasing volume of litigation by individual members who contest the representation afforded them by Unions before administrative agencies and the federal and state courts. The following are some general principles of the law of fair representation:

• Under the law, the Union has exclusive representation rights. If a member in a bargaining unit is aggrieved, the member should go to the Union for relief. Customarily, he or she files a grievance or attempts to do so. The courts have made it clear that the Union does not have duty to take every case—not even every discharge case—to arbitration. It does have the duty to accept a grievance, unless the grievance is, on its face, worthless and improper and even if it concludes that the grievance should not be accepted, it should explain why to the aggrieved employee. While the Union has no duty to “fight” every case, it does have certain duties that may make it legally responsible. These duties are to be honest, to act in good faith, to be non-discriminatory to be informed and to have a rational basis for making a decision. In other words, the Union owes a duty of “fair representation” to all those units that it represents.
• The Union is accorded considerable discretion in the handling of grievances, in other words, the Union is permitted “a wide range of reasonableness” in deciding whether to prosecute and how to prosecute a grievance.
• The latitude afforded a Union under the law, however, is “subject always to complete a good faith and honesty of purpose in the exercise of its discretion.
• No individual member has an absolute right to insist that his grievance be pursued through any particular step of the procedure. A Union may screen grievances and press only those it concludes should be pursued in terms of benefit to the unit as a whole and to take into account such matters as time, expenses, and other considerations.
• A union may not drop a grievance based upon hostility, discrimination, or arbitrariness. It may not arbitrarily ignore a meritorious grievance or investigate or handle it in a perfunctory manner-that is, merely going through the motions.
• In other words, a union may abandon a grievance, as long as there is a reason, and the union has a reasonable basis for adopting the reason. Mere whim, or no reason, will not support a contention that the union officially merely exercised judgment.
• Courts cannot require the exhaustion of reasonable internal remedies before suit unless they can provide the same relief that a judge is able to afford, such as reinstatement to a job.
• The union should try to avoid even the appearance of bad faith, hostility or arbitrary conduct.

MOST IMPORTANT POINT — THE UNION HAS AN OBLIGATION TO FULLY INVESTIGATE ANY COMPLAINT

Listed below are some examples of conduct that might appear to violate the union’s duty of fair representation:

• DISCRIMINATION – An all-male orchestra committee decided not to appeal a discharge grievance by the leader of a female caucus within the local that is hostile to the incumbent administration.
• ARBITRARINESS – A union representative or a committee person withdraws a grievance but, when asked why, can offer no reason.
• HOSTILITY – The chairman of the orchestra committee has a personal grudge against the grievant and brings pressure upon the committee to withdraw the grievance.
• DISHONESTY – The steward misleads, half-informs or lies to the grievant.