The Duty of Fair Representation

I believe that unions are very necessary in the American workforce. I am saddened to see the present day attack on unions led by Wisconsin and other states; they are trying to take away the employee rights that union members have fought and died for; and for all of the people who support this attack on unions, how soon we forget that the 40 hour work-week, the paid holidays and vacation, social security, pension plans, etc. are all a reality because of unions. I could go on and on about the benefits that the unions have given us,
but you get it!! The unions have a right to exist and are very necessary in the American workforce.

When employees chose to  be representated by a union, the union has a legal right to represent all of the employees in the bargaining unit. This right is given to the union by the National Labor Relation Act.
Under the Act, the union also has a legal "fair representation" obligation. The union has an obligation to represent all bargaining unit employees both union members and non-union members; hopefully, all employees in the bargaining unit are union members.

The union satisfies its obligation if it considers the interest of all members and takes its ultimate position honestly, in good faith, without hostility or arbitrary discrimination. The employee has the burden of proof in establishing that the union breached its fair representation obligation. Fair representation does not require the union to take every grievance to arbitration. However, the union's "perfunctory conduct", i.e., simply going through the motions, makes the union liable. Perfunctory conduct may include: inadefquate defense in an arbitration hearing; delaying grievance processing until time limits expire; failing to inform the grievant of accepting a different remedy or failing to keep union members informed about an arbitration that affects member's seniority rights.

The Supreme Court has ruled that, ".......courts should only examine the union's fair representation obligation, not the merits of the case.

In my experience, the unions has always looked out for the rights of their members and afforded them good representation. I am not aware of any employee who has successfully prevailed in a fair representation law suit.

The Grievance Process

Sometimes in the workplace employees may have a concern or complaint about some occurrance and a grievance may be filed. This could occur either in a union or non-union environment. A grievance is any employee's concern over a perceived problem in the workplace or a perceived violation of the labor agreement in a union setting. Most grievances are reduced to writing, however, a grievance may be resolved verbally. I favor verbal resolutions because that means that the parties are communicating and have reached a resolution to the satisfaction of both parties. A grievance becomes a permanent record and that record generates precedents that can guide future actions. Additionally, in some cases a grievance tends to reduce the emotionalism present in many employee concerns.

Some reasons for filing an employee grieance are: to protest an alleged violation of the labor agreement; to draw attention to a problem in the workplace, e.g., work-related or safety; to make the grievant feel good; and unfortunately, sometimes a grievance is filed to get something for nothing.

The typical steps in a grievance procedure are:

   * The first step of the procedure the employee discusses the concerns with the first-line supervisor; this
      may be with or without a union steward. If not resolved verbally, the supervisor answers the grievance in
      writing.

   * The second step of the procedure union officials and management are involved because of precedent
      considerations that may be set due to the nature of the grievance; in addition to the employee and the
      union steward, other participants will most probably include the Chief Steward and/or Union President
      and members of the grievance committee. For management the participants may include the supervisor,
      the department manager and at times a representative from the labor relations department. This is a
      second opportunity to resolve the grievance. Again, if the grievance is not resolved verbally, management
      answers the grievance in writing.

   * The third step of the procedure top union officials, e.g., the President, Business Agent, Chief Steward,
      members of the grievance committee, etc. and the Manager of Labor Relations and other management
      representatives are involved; these participants are important because the grievance may have company
      wide implications. This step is the best chance for the grievance to be resolved because the participants
      are the decision-makers for the union and the company. If the grievance is not resolved verbally
      the labor relations department answers the grievance in writing.

   * The fourth step of the procedure ( if the union decides to go forward) involves a third party neutral,
       either an arbitrator or mediator; if an arbitrator hears the case the resolution of the grievance is final
       and binding on the parties; a mediator's recommendation regarding the resolution of the grievance is
       not binding on the parties and they can accept or reject the recommendation. If the union or
       management reject the mediator's recommendation the grievance may be heard in arbitration.

In my experience I have found that the best resolution to a grievance is the mutual agreement of the parties because an arbitrator's decision may not be satisfactory to either party. If the grievance has merit it should be resolved in favor of the employee; if the grievance is without merit the union should withdraw the grievance.

Every first step grievance should be viewed as a potential arbitration, thus the importance of good investigation and good documentation is paramount.

A note to first-line supervisors, as noted above, if the employee's grievance has merit it should be resolved in the favor of the employee; if you are going to resolve the grievance in favor of the employee you should discuss your decision with your supervisor to insure his/her support and understanding of your decision; additionally, even if the grievance is without merit and there is no violation of the labor agreement, the employee has a right to file a grievance, therefore the grievance should be investigated and responded to in a timely manner.