What is Duty of Fair Representation? The courts have ruled a union’s power must be exercised ‘‘fairly, impartially and in good faith.’’ Most recently the U.S. Supreme Court held a Union violates the Duty of Fair Representation if it acts in an ‘‘arbitrary, discriminatory or bad faith’’ manner.
1) A union acts in an arbitrary manner if it acts perfunctorily and without enough regard to the merits of the matter before it. That is, there is no reasonable basis upon which the union’s conduct can be explained or it just ‘‘goes through the motions’’ in processing a grievance.
2) A union acts in a discriminatory manner if it acts unfairly in dealing with one person as compared to others similarly situated.
3) A union acts in bad faith if it acts with improper intent, motive and purpose.
Each test stands on its own and any one test may be enough to show a violation of the Duty of Fair Representation. An action or inaction by a union that is unreasonable or arbitrary or that treats people differently, may violate the Duty even though the union has acted in good faith and without hostility.
The obligation to ‘‘represent fairly’’ applies through all phases of the collective bargaining process, including negotiations and enforcing the terms of a contract. The duty does not extend to non-contractual matters, such as DMV hearings, unemployment appeals, workers compensation disputes, and any other non-contractual manner.
In the end, the definition of the Duty of Fair Representation and question of whether or not a union has met its Duty will depend on determining if the union’s actions were taken in good faith and were reasonable in light of the particular facts. Clearly, the way to avoid charges of unfair representation…is for Union representatives not to act toward any employee in the bargaining unit in a manner that is arbitrary, discriminatory or in bad faith.