While the Duty of Fair Representation is quite stringent, it does not require the union to process every grievance to arbitration, or, for that matter, process every grievance even to the first step of the grievance procedure. A union may not ignore a meritorious grievance or process it in a perfunctory fashion. The union does have the right to ‘‘sift out wholly frivolous grievances’’ and has a significant area of discretion in deciding which grievances to process and how far to process. The individual employee does not have an absolute right to have his grievance taken to arbitration.
A Unions obligation of fair representation in processing a grievance is basically twofold:
- Process the grievance with some degree of care, make an appropriate investigation of the facts, and observe contractual time limits.
- After making this investigation, it must decide if it will pursue the grievance further, especially whether or not it will take the grievance to arbitration. This determination must not be arbitrary, discriminatory, or in bad faith.
It is difficult to identify the precise factors leading to a conclusion in one case that a union has breached its Duty of Fair Representation, and in another case that it has not. The following tests, which are only generalizations, may be helpful:
- Did the union approach the grievance with an open mind in an honest effort to achieve a fair result?
- Did the union investigate the case with care and pursue all reasonable evidence suggested by the grievant?
- Has the union treated the grievance in the same way it has dealt with similar grievances in the past?
- Is the union’s decision not to take the case consistent with a reasonable interpretation of the contract?
- Did the union do an adequate job in presenting the case?
Clearly, it’s important for unions to understand their DFR obligations. As a steward, you should adhere to the following rules:
- Do not refuse to file or process a grievance because of a worker’s sex, race, nationality, age, religion or political activity—even if you consider the employee to be a destructive force within the union. You must diligently process grievances for all employees in the bargaining unit, whether or not they have joined the union, and whether or not they are paying dues.
- When a grievance is brought to your attention, conduct a thorough investigation of the facts. This includes interviewing witnesses. Unions have been found guilty of DFR violations when stewards or officers accepted company allegations at face value, or conducted “perfunctory” investigations.
- Do not miss deadlines in processing grievances or in filing for arbitration. Some contracts have strict time limits. A steward who misses a deadline is risking a DFR suit against the union.
- Keep employees informed of the progress of their grievances. If the union chooses not to arbitrate, explain the decision to the grievant (and keep a record of the date of this conversation.
A union may properly decide not to pursue a case if it concludes there is a good chance it can not win. If the union reaches this conclusion in good faith, it satisfies the Duty of Fair Representation, even if mistaken about the merits of the case.