1. 2007 International Representatives Training Naples, FL
Dealing with the Duty of Fair Representation
Laurence J. Cohen
IBEW General Counsel
Sherman, Dunn, Cohen, Leifer & Yellig, P.C.
900 7th St., N.W., Ste. 1000
Washington, D.C
(202)

2. I. What is the Duty of Fair Representation (DFR):
A. DFR is not found in any statute. A duty imposed by the courts and NLRB.
B. Duty arises from the exclusive representation status given to unions under the NLRA and RLA, to protect all bargaining unit employees.

3. C. Duty to act in an honest, non-arbitrary and non-discriminatory manner toward all bargaining unit employees, even non-union members. Vaca v. Sipes, 386 U.S. 171 (1967).
D. “A breach of the statutory duty of fair representation occurs only when a Union’s conduct toward a member of the unit is arbitrary, discriminatory, or in bad faith.”
Vaca.

4. E. An act is arbitrary only if, “in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ that it is wholly irrational.” Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65 (1991).
F. Negligence alone does not breach the duty. Steelworkers v. Rawson, 495 U.S. 362 (1990).

5. Courts of appeals differ over what beyond simple negligence can violate the DFR:
1. 7th Circuit: need intentional misconduct.
2. 4th, 6th, & 11th Circuits: gross negligence or reckless disregard.
3. 2nd, 5th, & 8th Circuits: union can’t give a rational explanation for its action.
4. 9th Circuit: considers if grievance has merit in deciding if union’s explanation is sufficient.

6. II. What is Prohibited Conduct?
A. A union can’t discriminate against members of the unit on the basis of race, gender, national origin, age or disability.
B. Can’t discriminate against an individual based on internal union political differences.
C. Can’t discriminate against bargaining unit employee because he/she is not a union member.

7. III. Duty Applies to Negotiation & Enforcement of CBAs
A. DFR in the Context of Grievance Handling
Most DFR cases arise from a union’s refusal to take a grievance to arbitration.
• Critical point: employee does not have absolute right to have grievance taken to arbitration.
“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 or her grievance taken to arbitration regardless of the provisions of the … collective bargaining agreement.”
Vaca v. Sipes.

8. 1. Union can settle grievance short of arbitration.
2. Union must make good faith and non- discriminatory decision on merits of the grievance.
3. Union can’t arbitrarily ignore meritorious grievance or process it in perfunctory fashion.

9. 6. Grievant has no right to have own attorney at arbitration.
4. Union may refuse to pursue a grievance “for a multitude of reasons, but it may not do so without any reason.”
5. Failure to notify grievant that grievance has been dropped may violate DFR.
6. Grievant has no right to have own attorney at arbitration.
7. Union not required to have lawyer to handle arbitration case, even if the company uses one.
attorneys

10. B. The Duty in Negotiations
1. Duty applies in contract negotiations, but courts will give high degree of deference to actions of negotiators.
• “A settlement is not irrational simply because it turns out in retrospect to have been a bad settlement.” Air Line Pilots v. O’Neill.
2. Duty is breached if bargaining position is motivated by hostility or other than good faith considerations.

11. • But see if vote is required by bylaws or past practice.
3. NLRA does not require a vote on contract ratifications.
• But see if vote is required by bylaws or past practice.
4. Courts differ re whether unions have duty to keep members informed about status of negotiations.

12. C. The Duty in the Context of Exclusive Hiring Hall Operations
1. DFR complaints arising out of hiring hall operation can go to NLRB or to court. Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67 (1989).
2. No DFR violation based on simple negligence in hiring hall operation.
3. In hiring hall cases, some courts of appeals reject the usual deference given to union actions.
• Because union has control over workers’ livelihood, it has added responsibility.

13. IV. Issues Arising in Court Cases
A. DFR claims can go to NLRB or to federal courts.
B. State court lawsuits are preempted by LMRA § 301 if the existence, scope & nature of union’s duty depends on interpretation of the CBA. Steelworkers v. Rawson, 495 U.S. 362 (1990); Electrical Workers v. Hechler, 481 U.S. 851 (1989).
C. Most cases against unions are dismissed; courts recognize large area of discretion by unions.
D. For plaintiff in DFR suit to succeed, two things must be proved.
• Employer action toward employee breached CBA.
• Union breached DFR in handling of grievance.

14. • Courts differ on when 6-month period starts:
E. Employee must first exhaust all procedures under CBA before filing lawsuit. Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965).
F. Statute of limitations – ULP charge or lawsuit must be filed within 6 months of date of breach of duty. DeCostello v. Teamsters, 462 U.S. 151 (1983).
• Courts differ on when 6-month period starts:
• In general, when employee knew, or reasonably should have known, of union action that is claimed to be breach, whichever is later.
• When arbitrator issues unfavorable decision.
• When union decides to drop or settle grievance and notifies employee.

15. • Collective bargaining representative only.
G. Plaintiff in DFR court case is entitled to jury trial. Teamsters Local 391 v. Terry, 494 U.S. 558 (1990).
H. Proper defendant in DFR suits.
• Collective bargaining representative only.
• International union not proper party if local union is sole bargaining representative.
• Union officers not proper defendants.
• Nor individual union members.

16. I. Remedies for DFR breach
1. Compensatory damages – generally backpay.
• Usually difference between what plaintiff actually earned after discharge and what he/she would have earned if no breach.
2. Attorneys’ fees – courts are split.
3. Punitive damages are not available. IBEW v. Foust, 442 U.S. 42 (1979).
• Significant victory for labor movement – Given right to jury trial, punitive damages would have been a substantial danger to unions.

17. • Absence of right to punitive damages – the big
• Absence of right to punitive damages – the big payout – dissuades many lawyers from filing DFR lawsuits.
4. Damages in failure to arbitrate case must be apportioned between employer (breach of contract) and union (DFR breach). Bowen v. U.S. Postal Service, 459 U.S. 212 (1983).
• No set rule re method of apportionment.

18. V. Practical Aspects of Grievance Handling – Want to Minimize Claims that Grievance Handling is “Arbitrary” or “Perfunctory.”
A. Always seek the facts and arguments from grievant, stewards and any witnesses to incident.
B. Examine any documents that may have a bearing on the grievance.
1. May include records in employer’s possession – demand them.
2. Employer has NLRB duty to furnish information relevant to processing of grievance.
3. If case goes to arbitration, can subpoena records through arbitrator.

19. C. Meet with grievant in advance of meetings with employer to obtain and check information, and to consider issues relevant to grievance.
D. If not going to arbitration, notify grievant of that in writing – start 6-month S/L period running.
E. Keep written records of all actions re handling of grievance.
1. When and where meetings held.
2. Those attending.
3. Issues considered.
4. Documents reviewed.
5. Decision reached and reason.

20. F. Same details for all phone calls.
G. If later NLRB charge or lawsuit, these will show union acted diligently and reasonably, and will usually lead to dismissal.

21. VI. Bottom Line:
A. Make all decisions fairly, objectively and based only on merits of the issues before you.
B. Keep grievant fully informed at all steps of the process.
• A fully informed and involved grievant, who disagrees with union’s decision, is less likely to go to NLRB or court.