The Duty of Fair Representation (DFR) is a union’s obligation to represent all members of the bargaining unit in a fair and good-faith manner.
Here is a good example of DFR:
A union member is terminated by his employer following a drug-related criminal arrest. After the criminal charges are dropped and the member’s criminal record is expunged, the union member’s employer fails to reinstate him/her to the prior position. The member requests that the union file a wrongful termination grievance against the employer. The union inadvertently misses a deadline during the grievance process, which causes the grievance to be dismissed. The union member, in turn, files a lawsuit against the union claiming breach of duty of fair representation and seeks damages, including lost wages and front pay. The court finds the union liable for breach of its duty of fair representation and awards over $300,000 in damages caused by the union’s negligence.
Though never expressed in the original National Labor Relations Act (NLRA), the DFR originated from a 1944 court case and derives from Section 301 the Taft-Hartley Act, an amendment to the NLRA. The U.S. Supreme Court created the doctrine to redress union action found to be inconsistent with a union’s statutory obligation as the exclusive representative of all bargaining unit employees.
Most DFR violations occur during the grievance process. Unions may be found guilty for wrongfully:
– Failing to file a timely grievance
– Failing to thoroughly investigate a grievance
– Withdrawing a grievance
– Settling a grievance without a full remedy
– Failing to take a legitimate grievance to arbitration
– Failing to prepare for arbitration
– Mishandling an arbitration
If the union violates its responsibility in a discharge case, financial exposure can be enormous. In Vaca v. Sipes (1967), the Supreme Court suggested that unions might be liable for some share of the back pay awarded to employees in DFR suits. That principle was clarified in 1983, in Bowen v. United States Postal Service, in which the Court made the union liable for the lion’s share of back pay.
It is obviously important to avoid conduct that could subject the union to a DFR charge. Here are some guidelines:
- When a grievance is brought to your attention, conduct a full investigation.
- Interview the grievant and all witnesses
- Request files, documents and other relevant information
- Keep detailed records
- Do not refuse to file or process a grievance because of a worker’s sex, race, nationality, age, religion, politics, personality or dues-paying status
- Diligently represent all employees in the bargaining unit – even if you consider the employee to be a destructive force within the union
- Adhere to contractual time limits
- Prepare thoroughly for all arbitrations
A union’s obligation under DFR generally extends only to contract procedures such as filing grievances and going to arbitration. Unions do not have to file court appeals when they lose at arbitration.
Unions must keep in mind that NLRB Memorandum GC 19-01, published October 24, 2018 is still in effect.
The Memorandum clarifies the “mere negligence” defense to duty of fair representation claims. While a union’s mere negligence is not a violation, Memorandum GC 19-01 provides examples of conduct that could exceed mere negligence:
1. Little or no investigation in connection with a discharge grievance
2. Willfully misinforming or keeping a grievant uninformed of a grievance after committing to pursue arbitration
3. Failing to provide information relating to a bargaining unit member’s grievance
5. Failing to communicate decisions related to a grievance or to respond to inquiries for information or documents by the grievant, a failure which cannot be cured by communication with post-filing
GC 19-01 also clarifies that in cases where the union claims mere negligence based on having lost track, misplaced, or otherwise forgotten about a grievance, (regardless of whether the union committed to pursue it), the union should be required to “show the existence of established, reasonable procedures or systems in place to track grievances, without which, their defense should ordinarily fail.”
If your Union does not have an up to date and adequate Grievance and Arbitration Tracking System in place. If you are using paper files, excel spreadsheets, antiquated databases, NOW would be a good time to investigate obtaining Tracking and Automation Software. The software should give you access to all documents associated with grievance or arbitration. It should notify you of all grievance time constraints. This is a worthwhile investment to protect your Union.