AFSCME explains Duty of Fair Representation
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The statutory fight of exclusive representation mandates fair representation of all members of a bargaining unit. This obligation emanates from Section 5 of Chapter 150E. This section also provides for the processing of grievances by individual employees without interference from the Union, provided that the union has the opportunity to be present at any adjustment, and that such adjustment is not inconsistent with the provisions of the Agreement.
The duty requires that the Union represent the interests of all employees fairly and impartially. The Union may refuse to file or process a grievance for any number of reasons so long as they are valid; it may not arbitrarily refuse to process a meritorious grievance or decline to proceed to arbitration because of hostility to the grievant or irrelevant and invidious considerations. Thus, while no employee has a right to have his grievance processed or taken to arbitration if the Union determines, in its discretion, that it lacks merit, still the union may not refuse to process or go to arbitration on a meritorious claim simply because the grievant is widely disliked (or is a non-member). The right to speak for all employees in the bargaining unit carries with it the corresponding duty to protect them as well. Fair representation applies to negotiations, the decision to process or not process a grievance and the way in which a grievance is in fact processed, through arbitration.
A. Standard of Conduct
- The exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.
- Neither negligence nor a mistake in judgement on the part of the Union will support a claim that a Union breached the duty of fair representation.
- A breach of duty of fair representation occurs when the Union acts based on improper motivation or in a manner which is arbitrary, perfunctory or inexcusably neglectful.
- 4. Since a Union will often be required to represent different and conflicting interest, it is allowed a wide range of reasonableness in fulfilling its statutory duties.
The Union is allowed a wide range of reasonableness in serving the bargaining unit it represents, subject to good faith in the exercise of its discretion. Although ordinary negligence doesn’t amount to a breach, a lack of a rational basis for Union decision and egregious unfairness or reckless omissions or disregard for individual employees’ fights may constitute a breach.
C. Contract Administration
Arbitrariness or bad faith will not be inferred in the decision making process solely because the Union’s contractual analysis was unartful, unskillful, or erroneous.
D. Duty to Investigate
The investigation must be sufficient enough to permit the Union to make a reasoned judgement about the merits of the grievance, rather than an arbitrary choice. Where the Union decides not to bring a grievance forward based on its interpretation of clear contractual language, the Union does not have to investigate because the facts are irrelevant.
E. Duty in Member vs. Member Conflicts
Subject to the standards of avoiding improper motivation, arbitrariness, perfunctory conduct or inexcusable neglect, the Union may lawfully interpret the contract in a manner which prefers the rights of one employee over another, even though it has a statutory duty to represent both. In many cases of conflicting interests of employees, such as vacancies and layoffs, the Union must notify employees of grievances that may adversely affect their job rights and must investigate their competing claims in good faith. before deriding whether to pursue the grievances.
F. Sexual Harassment
A Union has the discretion to refuse to pursue a grievance protesting sexual harassment provided the decision is not motivated by sex discrimination or other hostility toward the grievant, and it is based on the Union’s assessment of the merits of the grievance after an investigation of the employees’ competing claims.
G. Grievance Summary
Seven golden rules for Unions:
- Consider all grievances solely on the merits;
- Investigate each grievance promptly and vigorously;
- Do not miss time limits;
- Keep a record;
- Keep the grievant informed;
- Have a valid reason for any action;
- If the grievance lacks merit, drop it. (NSO Contract).
H. Arbitration Summary
Avoid the following:
- Failure to make a decision on whether or not to arbitrate;
- Failure to notify the grievant of a decision not to arbitrate in time for the grievant to pursue other available remedies;
- Refusing to arbitrate solely because of expense to the Association or hostility toward the grievant;
- Poor quality of presentation (extreme negligence in investigating, extreme passivity in presenting the case);
- Perfunctory handling of an arbitration case which effectively prevents any factual proof of the grievant’s position. In order to be considered a breach of the duty of fair representation, conduct usually has to involve more than ordinary negligence.