council of prison locals c-33

Duty of fair representation is not absolute

THE SITUATION: A worker files a ULP charge against the union for its failure to pursue her grievance. The union believes that the case against the employee is too solid. What are the union's rights and obligations?

     A union with exclusive recognition must represent the interests of all bargaining unit employees without regard to their membership in the union, according to 5USC7114(a)(1). This is commonly referred to as the union's "duty of fair representation."  This duty is not absolute, however.

     Sometimes, the union may discriminate on the basis of membership. In Fort Bragg, 28 FLRA 908, 87 FLRR1-1434 (FLRA 1987), the Federal Labor Relations Authority explained that the duty attaches only when the union has exclusive representation authority over the dispute.

     The union represented its members in a class action suit and stated that nonmembers had to pay a $500 fee to be included. The FLRA ruled that the union didn't violate its duty of fair representation because the suit wasn't grounded in its role as exclusive representative. The nonmembers could have filed a similar suit. The FLRA explained that a union may lawfully treat employees differently based on whether they pay union dues in cases where employees may select a representative other than the union, such as matters before the Merit Systems Protection Board.

     Here, the employee seeks representation in the negotiated grievance/arbitration procedure where the union has exclusive rights. Thus, it would be a ULP to deny representation because she isn't a union member, However, the union argues that she has a bad case and doesn't want to waste effort pursuing it.

     The Supreme Court tackled this issue decades ago in VACA v. Sipes, 386 U.S. 171, 103LRP 19901 (U.S. 1967), a private sector case decided under the National Labor Relations Act. The Court's decision applies to the federal sector because in Fort Bragg, the FLRA ruled that Congress adopted for federal employee unions the private sector duty of fair representation. 

     In Vaca, a union refused to process a grievance over an employee's termination to the final step of the grievance procedure, arbitration. the Court declared that employees don't enjoy an absolute right to arbitration, and explained that in administrating the grievance procedure, unions must make decisions on the merits of grievances in a good-faith manner. The Court noted that the union must have the discretion to weed out frivolous grievances to avoid the costliest part of the grievance process. The union violates its duty if it arbitrarily ignores a meritorious grievance or chooses not to proceed based on wrongful conduct, such as discrimination or personal hostility.

     In defending against a charge of discrimination based on membership status, a union should examine its past practices. Does it regularly represent nonmembers in arbitration? Does it regularly reject non-meritorious cases brought by dues-paying members?