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THE UNION'S DUTY
OF FAIR REPRESENTATION
Last
Updated:
July 11, 2008
Printable version of Chapter 8 of the 2001 NBPC Training Manual.
A. The Duty of Fair Representation (DFR) comes from Section
7114(a)(1) of the Statute. The basic principle of DFR:
A Union must use its power to fairly and equally represent all
employees in the bargaining unit. As a general rule, the Union
must represent employees without regard to Union membership.
B. Two common types of disputes concerning DFR:
1. Claims of discrimination against non-members
2. Claims of ineffectual or incompetent representation
C. Discrimination Based Upon Union Membership
1. A Union is only required to represent employees
without regard to Union membership if the Union has exclusive
control over the matter, and is the employee’s sole choice of
representative in the matter.
a. When the employee may choose a representative
other than the Union, then the Union can discriminate
against non-members:
(1) MSPB proceedings. See NTEU v. FLRA, 800
F.2d 1165 (D.C. Cir. 1986); and AFGE Local 916 v.
FLRA, 812 F.2d 1326 (10th Cir. 1987).
(2) Lawsuits in court. Fort Bragg Association
of Educators, National Education Association, Fort
Bragg, NC and Fort Bragg Department of Defense
Dependents Schools, 28 FLRA 908 (1987). The Union’s
decision to charge nonmembers $500 to join a class
action lawsuit was not a breach of the DFR.
(3) Responses to a
notice of proposed disciplinary action (where the
employee is given the right to reply orally and/or in
writing, and may be represented by a representative of
his or her choosing). See
AFGE, Local 1857 (Sacramento
Air Logistics Center, North Highland, CA) and Eloise F.
Holdahl,
46 FLRA 904 (1992)/
2. When the Union has exclusive control; that is, the
employee’s only choice for a representative is the Union, then
members and non-members must be treated alike. Some areas where
the Union has exclusive control, and could violate the duty of
fair representation include:
a. Enforcing the contract, or providing contract
benefits differently for members and non-members.
(1) The Union negotiated an agreement with the
agency to have employees tested for asbestos exposure.
The agreement provided that dues paying members could
take administrative leave to be tested, but non-members
had to take sick leave (or be tested on their own time).
This is a violation of the Duty of Fair Representation.
See Department of the Army, Watervliet Arsenal, NY
and NFFE, Local 2109; Department of the Army, Watervliet
Arsenal, NY and Arthur W. Brooks; NAGE, Local R2‑98 and
George W. LaWare, Jr., 39 FLRA 318 (1991).
(2) Loring Air Force Base, Limestone, ME, and
AFGE Local 2943, 43 FLRA 1087 (1992). Agency agreed
to a $125,000 grievance settlement for 63 employees and
supervisors who didn’t get environmental differential
pay when they should have. Union was to determine how to
distribute the money. The distribution favored union
members, and thus violated the DFR.
(3) A Union proposal
that Union membership be used as a tie breaker in
selecting from among equally qualified employees for
assignments was a ULP.
PASS Region 2 (FAA,
Sacramento, CA)
9-CO-80017 (3/31/89) (This was settled without ever
going to hearing.)
b. Invoking arbitration using different standards
for members and non-members.
1.
It is a violation for the Union president to tell the
grievance committee to take an employee’s Union
membership into account in determining whether or not to
proceed to arbitration. AFGE Local 2501, 51 FLRA
1657 (1996).
c. Requiring arbitration fees for non-members that
are not required for members.
1.
Statements to employee that because she was not a dues
paying member, the Union would not work as hard on her case
and would not pay for arbitration of the case was a
violation. AFGE Local 1228 and Patricia Dearduff, ALJ
Decision 7-CO-10015 (3/19/92).
d. Distributing back pay award to members differently
than non-members.
See AFGE Local 1857, 28 FLRA 677 (1987), where the
Local improperly removed one person’s name from a list of
employees eligible to receive back pay pursuant to a
grievance settlement.
e. Making statements implying that employees who do not
pay dues will not receive the same quality of representation in
grievances, ULP proceedings, or other matters:
(1) AFGE LOCAL 2437 and Dept. of Veterans Affairs,
53 FLRA No. 35 (1997). Local president’s five minute speech
at new employee orientation session violated the Statute.
(2)
AFGE Local 987 and
Warner Robins Air Logistics Center,
35 FLRA 720 (1990). Union newsletter contained an article
stating non-dues paying persons wishing to file grievances
on the recently publicized overtime pay issue should join
the Union to assure prompt representation. This statement is
a violation.
(3)
AFGE Local 987 and
Warner Robins Air Logistics Center,
35 FLRA 563 (1990). The Union violated statute by telling
employee she would not receive full representation unless
she joined the Union. She was also told that if her case
needed a lawyer, it would be best if she were a member, as
the Union did not like to spend money for lawyers for
nonmembers. Union tried to defend by claiming steward was
only referring to statutory appeals, where Union is not
required to represent non-members. But ALJ didn’t buy it.
D. Claims of ineffectual or incompetent representation
The
Union violates the Duty of Fair Representation when it’s conduct is
arbitrary and in bad faith; that is, if the Union deliberately and
unjustifiably treats one or more bargaining unit employees differently
from other employees in the unit.
1. Arbitrary: The Union’s conduct must be deliberate (not
accidental), and it must be unjustified.
a. the Union’s conduct must fall outside the range of
reasonable behavior.
b. the Union’s conduct must amount to more than
negligence, inexperience or ineptitude.
2. Bad Faith: The Union’s actions must result in the
employee being treated differently from other bargaining unit
employees.
a. There is an element of discrimination here. To use an
EEO term, the complaining employee must be treated in a
disparate manner.
b. If the Union follows its normal procedures and
standards, there is no violation.
3. Examples:
a. Union’s failure to file grievances over three letters
of counseling was not arbitrary or in bad faith. The Union
attempted to resolve the matter by other means, i.e. through
negotiations and also through a whistleblower complaint. The
employee had not specifically asked the Union to file
grievances, and the Union had made no assurances. There was no
violation. AFGE Local 1457 and Gwen Horn, 43 FLRA 575
(1991).
b. An employee asked the Union to grieve a five day
suspension. The Local President traveled from Chicago to
Cleveland and spent three days investigating the situation. He
assured the employee he would file a grievance. Thereafter, he
became ill and was out of work for a month. He filed the
grievance on his first day back, but it was rejected as
untimely. The Union then decided not to pursue the matter
because the grievance lacked merit.
At first, the ALJ found a violation, saying the President should
have delegated the task of filing the grievance to someone else
when he became ill. But the Authority disagreed, and dismissed
the complaint. It found the President was inexperienced, having
handled only five grievances in the past, and he had been ill.
There was no evidence that the Union had deliberately or
unjustifiably treated the complainant differently from other
unit employees. The President’s actions amounted to mere
negligence. See AFGE Local 3529, 31 FLRA 1208 (1988).
c. An employee contacted the Union’s chief steward
several times to ask him to file a grievance protesting a five
day suspension. He also contacted his local steward with the
same request. Despite these repeated requests, the Union allowed
the contractual time limits to expire without filing a
grievance. The FLRA found the Union deliberately and
unjustifiably failed to file a grievance on behalf of the
employee. Thus, it treated him differently from other employees.
Moreover, the Union’s actions caused the grievant’s appeal
rights to be extinguished (there was no other avenue of appeal
open to the employee for this type of disciplinary action).
Therefore, as a remedy, the Authority ordered the Union to
reimburse the employee for the five days of the suspension.
d. Over a nine month period, the Union repeatedly
assured the employee that his grievance would be taken to
arbitration. However, the Union had never invoked arbitration on
his behalf. The ALJ found that there had been a program of
deception and deliberate and intentional misconduct on the part
of the Union. AFGE Local 1945 and Sam Cash, 4-CO-10025 (ALJ
Decision 6/25/93)
E. Remedies: If the Union Has Breached its DFR, What is the
Penalty?
1. General Rule: The FLRA will seek to put the employee in
the place he/she would have been in, absent the Union’s unlawful
conduct.
2. Cases that Involve Grievances
a. The Union will be required to ask the agency to waive
the time limits and process the grievance.
b. If the agency refuses, the FLRA Regional office will
determine (during the investigation of the ULP charge) if the
grievance was meritorious.
c. If the grievance had merit and the agency refuses to
process the grievance, then the General Counsel will seek a
make-whole remedy.
This means that if the employee was fired, the Union could be
liable for back pay for a very long period of time. Large
amounts of money could be at stake.
F. When Must Non-Members Views Be Considered By The Union?
Only
where the Union has the absolute right to establish a condition of
employment, without negotiating with management.
1. Situations where participation may be limited to dues
paying members include:
a. attending Union meetings;
b. voting for Union officers;
c. representing the Union in any capacity;
d. taking advantage of special Union sponsored credit
cards, life insurance, etc.
e. voting whether to ratify a new collective bargaining
agreement;
f. voting on proposals to make during contract
negotiations;
Although non-members do not have the right to participate in the
Union’s decisional process, the proposals themselves may not
discriminate on the basis of Union membership. The Union is
still required to represent all employees in the bargaining unit
without regard to Union membership.
2. Situations where non-members must be allowed to
participate include:
a. The agency and the Union reached an agreement that
the Union would determine how seniority would be calculated for
certain benefits (such as assignments and overtime). The Union
conducted a members only poll to decide which method to use. The
Authority found this violated the DFR by differentiating between
employees on the basis of Union activity. As a remedy, the new
procedure was rescinded, and the Union was ordered to make whole
any employee who lost money because of the change. See NFFE
Local 1827 and Catherine Bratton, 49 FLRA 738 (1994).
The irony is that if the Union officers had simply decided, with
no input at all from the bargaining unit, there would have been
no violation.
G. A Federal Employee May Not Sue In Court To Enforce the Union’s
Duty of Fair Representation
1. In 1989, a unanimous Supreme Court ruled that a federal
employee has no right to bring a private lawsuit to enforce the
Union’s statutory duty of fair representation. The only remedy
available to the employee is to file a ULP with the FLRA. See
Karahalios v. NFFE Local 1263, 109 S.Ct. 1282, 489 U.S. 527
(U.S. Sup. Ct. 1989).
a. It is common for private sector Unions to be sued for
breach of the duty of fair representation.
b. This does not mean the Union might not be sued on
some other matter.
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