Unions and the Duty of Fair Representation

By Patricia S. Rose
Unions have long been recognized in organized workplaces as the “exclusive” representative of members of bargaining units in dealing with the employer on terms and conditions of employment. A typical collective bargaining agreement or union contract designates the union as the recipient of and responsible party for all grievances arising under the agreement

To ensure that the interests of individual members are heard, Congress has created a legislative scheme for union leadership and governance just as our judiciary has recognized and delineated the contours of the “duty of fair representation” by unions. The duty of fair representation (DFR) inherently stems from the union’s exclusive role as representative of all employees within the bargaining unit-even for those individuals who opt out of actual union membership.

The duty was first recognized by the U.S. Supreme Court in a Railway Labor Act case entitled Steele v. Louisville and Nashville Rail Road Co, 323 U.S. 192 (1944). Steele involved racial discrimination in the membership of the trade of “firemen” employed on passenger trains and subsequent racial segregation and discrimination in the terms of the minority employees’ employment. The Supreme Court stated as follows:

We think the Railway Labor Act imposed upon the statutory representative of a craft at least as exacting a duty to protect equally the interests of the members of the craft as the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates. . . . We hold the language of the Act... expresses the aim of Congress to impose on the bargaining representative a craft or a class of employees the duty to exercise fairly the power conferred upon it on behalf of all those for who it acts, without hostile discrimination again them.

Id.

The same day the Court decided Steele it also noted that a DFR was implicitly present in the National Labor Relations Act. Wallace v. NLRB, 323 U.S. 248 (1944). Thus, a DFR breach is also usually an unfair labor practice under that Act and within the enforcement powers of the National Labor Relations Board.

Over time, the Court has also recognized that an individual seeking to prove a breach of the duty can bring a cause of action under section 301 of the Labor Management Relations Act (LMRA).

LMRA provides a remedy for contractual breaches of collective bargaining agreements. The litigation is directed at a union for breaching the duty of fair representation and against the employer for violating the contract by terminating the employee/grievant, for example. See e.g. Vaca v. Sipes, 386 U.S. 171 (1967). These claims have come to be known as “hybrid” cases.

In Vaca, the oft-repeated mantra was first stated, i.e. that a “breach of the statutory duty of fair representation occurs only when a union’s conduct towards a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith.” Id. The Court explained:

Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement.

Id. Moreover, the Court stated that the duty applies to a wide range of union activity such as collective bargaining negotiations, contract administration, and grievance handling.

Since Vaca, courts have continued to emphasize that merely “negligent” actions by union officials are not enough to support DFR violations and that union representatives have broad discretion in many areas: identifying key issues for bargaining; compromising claims; selecting witnesses; and making decisions to advance a grievance to a next step, to name a few. However, perfunctory treatment or simply going through the motions is often viewed as evidence of inadequate representation.

There is clearly no guarantee that any grievant, individual, or class of members will be wholly satisfied with the outcome of any bargaining session, negotiated agreement, or grievance processing decisions. Essentially, a union must act in good faith and honesty to represent the membership as a whole. Discrimination must reflect invidiousness or hostility directed towards a class of members or an individual member.

One of the critical questions in a “hybrid” DFR suit is the allocation of damages between the union and employer. A successful DFR suit will show both that the union failed to adequately represent the grievant’s interests in a meritorious grievance and that the employer’s actions breached the union contract. One rule for allocating damages is that the employer is liable for all damages flowing from the contract violation and that the union is liable for damages for the increased cost to the individual of collecting those remedies, i.e. back pay. Thus, a union may be liable for litigation-related expenses and attorney’s fees for pursuit of a claim. Indeed, the Supreme Court has held that unions may be liable for the increased back pay flowing from a date on which the case should have been resolved but for delays caused by the DFF breach.

Washington courts have followed the federal courts’ lead, particularly in recognizing the duty of fair representation in public sector cases under the Public Employees Collective Bargaining RCW 49.56.080 and as a basis for an unfair labor practice charge before the Public Employee Relations Commission (PERC). See e.g.. Allen v. Seattle Police Officers Guild, 100 Wn.2d 361 (1983). Our state courts have concurrent jurisdiction for many of these claims as well. See e.g. Womble v. Local 73, 64 Wn. App. 698 (1992).

Because of the large latitude allowed to unions in carrying out their representative functions, successful prosecution of DFR claims remains challenging for many members of the bar. Indeed, because many members of the employee side of the employment law bar often also represent unions, it is the author’s experience that very few are willing to take the time to evaluate, let alone undertake litigation of, this kind of claim.

Nonetheless, there remain many prospective clients seeking advice and counsel on possible DFR claims. Along with other issues arising from union elections and other internal disputes among union members, this area of practice is wide open.