Introduction

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Duty of Fair Representation

Once certified as the exclusive representative of workers in a bargaining unit, a union must represent all of them fairly. This duty of fair representation (DFR) is a legal obligation that is extended to members of the bargaining unit regardless of union affiliation. A union cannot refuse to represent somebody for a discriminatory or arbitrary reason. If it is shown that this occurred and a grievance is sustained, both the employer and union will be liable for damages. The duty is a judicial creation rather than statutory but any violation of DFR is an unfair labor practice. Unions do have wide discretion in processing grievances, however.

A union is an unincorporated association having no existence apart from its membership, unlike corporations which are an “entity.” Members are considered 3rd party beneficiaries to the contract and the union can only enforce it on behalf of their interests as beneficiaries. Although individuals authorize the union to act on their behalf (subject to revocation), it is not an agent of individuals for negotiating and enforcing contract. Sometimes, the interests of the union as an organization stand apart from the interests of individual members. Good leadership requires weighing those relative interests. Individuals are not signatories to a contract and cannot sue to enforce it.

Members have a right to file private suits under Section 301 (and ULP charges).

The union has broad discretion in administration of grievances!

	The union is obliged to consider every grievance on its merits;
	Union conduct toward member must not arbitrary, discriminatory or in bad faith;
	Simple negligence is not sufficient to establish a violation nor is a consideration of whether or not grievance has merit;
	Negotiating a bad agreement not a violation;
	Secret deals (once exposed!) open liability for both union and the employer;
	Damages are compensatory only;
	There is a uniform 180 day statute of limitations for all DFR violation allegations.

Who is liable?
Under the Bowen decision:

	The employer is liable for any contract violation, and the union generally liable for the increased cost of collecting backpay, including litigation expenses;
	In discharge cases, the union liability extends from point in time the grievance should have been resolved;
	The court establishes date that reinstatement would have occurred but for the union’s delays.