"The Court noted that a union has a statutory duty to bargaining unit employees
"both in its collective bargaining" and "in its enforcement of the
resulting collective bargaining agreement." "Under (the fair
representation) doctrine," the Court continued, "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." Ibid."

VACA v. SIPES, 386 U.S. 171 (1967)

THE UNION’S DUTY OF FAIR REPRESENTATION

The following are some general principles of the law of unfair representation:

1. Under the law, the union has exclusive representation rights.  If a member in a bargaining unit is aggrieved, the member should go to the union for relief.  Customarily, he or she files a grievance or attempts to do so.  The courts have made it clear that the union does not have a duty to take every case – not even every discharge case – to arbitration or final resolution.  It does have the duty to accept a grievance, unless the grievance is, on its face, worthless and improper and even if it concludes that a grievance should not be accepted, it should explain why to the aggrieved employee.  While the union has no duty to “fight” every case, it does have certain duties, which may make it legally responsible.  Those duties are to be honest, to act in good faith, to be non-discriminatory, to be informed, and to have a rational basis for making a decision.  In other words, the union owes a duty of “fair representation” to all those in units which it represents.
2. The union is accorded considerable discretion in the handling of grievances – in other words the union is permitted “a wide range of reasonableness” in deciding whether to prosecute and how to prosecute a grievance.
3. The latitude afforded a union under the law, however, is “subject always to a complete good faith and honesty of purpose in the exercise of its discretion”.
4. No individual member has an absolute right to insist that his grievance be pursued through any particular step of the procedure.  A union may screen grievances and press only those it concludes should be pursued in terms of benefit to the unit as a whole and to take into account such matters as time, expenses and other considerations.
5. A union may not drop a grievance based on hostility, discrimination, or arbitrariness.  It may not arbitrarily ignore a meritorious grievance or investigate or handle it in a perfunctory manner – that is, by merely going through the motions.
6. In other words, a union may abandon a grievance, as long as there is a reason, and the union has a reasonable basis for adopting the reason.  Mere whim, or no reason, will not support a contention that the union official merely exercised judgment.

Here are some examples of conduct, which might appear to violate the union’s duty of fair representation:

a)     Discrimination.  An all-male shop committee decides not to appeal a discharge grievance by the leader of a female caucus within the local, which is hostile to the incumbent administration.  Nor may a distinction be drawn between union members and non-members.

b)     Arbitrariness.  An international representative or a committeeman withdraws a grievance but, when asked why, can offer no reason.

c)     Hostility.  The chairman of the shop committee has a personal grudge against the grievant and brings pressure on the committee to withdraw the grievance.

d)     Dishonesty.  The representative misleads, half-informs, or lies to the grievant.

7. Most courts require the exhaustion of reasonable internal union remedies before suit.  In order to rely on a defense of non-exhaustion of such remedies, the union must take care not to mislead the member or place obstacles in his or her way so that the internal remedy can be said to be meaningless.
8. The union should try to avoid even the appearance of bad faith, hostility or arbitrary conduct.
9. Obviously, the union people handling grievances should distinguish between minor and serious grievances.  A reprimand of three days seems unlikely to lead to litigation, but such matters as a six-month layoff, a discharge, the loss of seniority or valuable transfer or promotional rights are obviously serious enough to require more care.  It is similar to the difference between a misdemeanor and a felony.
10. In a case of the discharge of a high seniority person, the presumption is in favor of arbitration and only compelling facts involving the actual case should excuse not going forward with the case.  A union representative is first and foremost an advocate.  Where there are factual disputes, the union officer who represents the grievant should accept his version of the facts, if credible.  

Duty of Fair Representation for Stewards

1. Investigate all grievances fairly and fully.

2. Don't discriminate against your members.

3. Pay attention and adhere to the time limits in your grievance procedure.

4. Don't play favorites or act in an arbitrary manner.

5. Represent all members equally and in good faith.

6. Keep members informed.

7. Investigate, prepare and present grievances in an above-board and professional manner.

8. Don't "horse trade" grievances. Handle each grievance on its own merit.

9. Not all grievances are taken forward, particularly to arbitration. Many are unfounded, without basis in contract violation, un-winnable, lack evidence or supporting data.

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