Duty of Fair Representation

“I Hate My Union. They Are Corrupt and Incompetent”

That is an actual quote we received from a  dues paying union member of a large federal20130225-Informed-Fed-Logo_150 employee bargaining unit.  Such sentiments are not unusual.  Many union members feel disenfranchised for a variety of reasons, real or perceived, and we have encountered employees adversely affected by bad representational information provided by union representatives.   The most common cited reason for dissatisfaction involves the lack of responsiveness of a local union to a dues paying members immediate need involving a Weingarten meeting or proposed disciplinary action. After that, we typically hear that many members believe the representative and representation they received was substantively technically deficient.  Finally, we sometimes hear claims that union officials are criminally corrupt, typically involving the “taking” of union monies through lost salary and reimbursement claims.

Please note: This is a very brief article covering the union’s Duty of Fair Representation.  Issues involving litigation of a union’s Duty of Fair Representation before the Federal Labor Relations Authority can be extremely technical in nature.  This article makes no attempt to address litigation issues or methods.  Concerns involving allegations of union financial impropriety should be addressed to the Department of Labor and not InformedFed.

Jurisdiction

For purposes of the Duty of Fair Representation, hereafter referred to as DFR or Unfair Labor Practice complaint (ULP), the Federal Labor Relations Authority (FLRA) maintains jurisdiction; for example, in claims of discriminatory treatment on the basis of membership status (dues paying) in a federal labor organization.  Compare this to the Department of Labor (DOL), and more specifically, the Office of Labor Management Standards (OLMS) within the DOL, which maintains jurisdiction over all labor organizations (public and private) in questions or allegations involving financial controls; for example, financial disclosure, fiduciary obligations, misuse of union funds, and general financial improprieties.  The DOL specifically employs specialized criminal investigators to investigate allegations whereas the FLRA typically employs attorneys or administrative specialists to review (administratively investigate) DFR complaints. The FLRA will defer to the DOL Office of Labor Management Standards all allegations of financial improprieties.

Sidebar: To view a union financial report, click here to access the DOL OLMS report search function to review how your union spends member dues.  Simply input your union information (intermediate, national, or local).  The union report will contain information such as money paid to officers and representatives, any loans made, sources of income, liabilities, expense reimbursements made to officers and representatives, etc….

Agencies are neither empowered, or typically concerned, about DFR complaints and will defer an employee’s inquiry to the FLRA. Concerns regarding a local union can be addressed internally through provided union processes, usually outlined in local constitution and by-laws.  However, this method is unusually ineffective for obvious reasons.  Addressing complaints through the intermediate and national organizations concerning the local union will likely prove ineffective as well based on our direct practical experiences.  The best choice is clearly to file a ULP with the with the FLRA. This is called a “Charge Against A Labor Organization” and FLRA Form-23 is used to initiate this process with the FLRA.

The jurisdiction of the Federal Labor Relations Authority is neither plenary or absolute. Title 5 USC 7105 and 5 USC 7118, provide the Federal Labor Relations Authority with corrective authority after it determines a party has committed an unfair labor practice (ULP) or otherwise violated the Duty of Fair Representation doctrine. A ULP charge may be filed with the FLRA by any individual employee who believes he was denied fair representation. ULP charges are investigated by the FLRA general counsel’s office.  This office may issue and prosecute a complaint if it believes the union breached its lawful duty.

What is “The Duty”& “Breach of the Duty”

In the federal sector, all members of a bargaining unit are represented by the recognized exclusive labor organization, without regard as to whether they pay dues.  This is a legal requirement and there is no choice for the union.  In other words, if you are in the bargaining unit and do not pay union dues, while the union can prevent you from attending a union meeting or other type of union function (to include voting in union elections), it cannot refuse to provide you workplace representation if you otherwise have no option except for the union negotiated processes.  This includes representation in negotiations, disciplinary and adverse actions, Weingarten meetings, etc.  The analysis of each situation can sometimes get more complicated and very fact dependent, but the statement typically holds true. This is commonly referred to as the union’s “duty of fair representation.”  In the federal sector, this obligation was incorporated in the Federal Services Labor Management Relations Statute (FSLMRS) at Title 5 USC 7114(a). There are predominantly two functional ways a union can breach its duty. The most common type involves allegations a union provided no, or inadequate, representation in a grievance or other matter involving collective bargaining, or a process related to such bargaining,  because the affected employee was not a dues-paying member. For example, Tidewater Virginia Metal Trades Council was found guilty of a ULP in Tidewater Virginia Federal Employees, Metal Trades Council/ International Association of Machinists, Local 441 and Douglas Edward Burns and Norfolk Naval Shipyard, 82 FLRR 1-1423 , 8 FLRA 217 (FLRA 1982), when it was shown a union official suggested an employee’s grievance had a better chance of getting to arbitration if the employee was a (dues paying) union member. In this particular case, at arbitration the official representing the union  and affected employee called no witnesses, although the FLRA found there were witnesses available who would have supported the employee’s position.

However, there are in fact times when a union may discriminate on the basis of membership in the labor organization (not being a member). The Duty of Fair Representation applies only when the dispute in question is one over which the union has exclusive representational authority. Fort Bragg, 28 FLRA 908 , 87 FLRR 1-1434 (FLRA 1987).  This type of situation is typically encountered in class action suits involving pay disputes that are organized by the labor organization.  In these particular situations, the union is not the exclusive authority because nonmembers could file a suit themselves. The FLRA has held a union may lawfully treat employees differently based on whether they pay union dues in cases where employees are able (allowed) to select a representative other than the union.  Another good representative example would be in adverse actions for example.  In this instance, the union does not have exclusive control over the appeal process the employee, on his or her own, may otherwise independently appeal to the Merit Systems Protection Board (MSPB).

We would be remiss if we did not mention Vaca v. Sipes.  Vaca is a Supreme Court case involving a private sector case decided before the Supreme Court.  This case is applicable to the public sector because in the Fort Bragg case, the FLRA ruled Congress adopted the private sector Duty of Fair Representation obligation under the National Labor Relations Act for federal employees.  Fort Bragg, 28 FLRA 908 , 87 FLRR 1-1434 (FLRA 1987). Vaca involved a union’s  outright refusal to process a grievance concerning an employee’s firing to arbitration, which was the final step of the grievance procedure. In Vaca, the Court declared employees do not enjoy an absolute right to arbitration and further explained that in administering the grievance/arbitration procedure, the union must make decisions on the merits of grievances in a good-faith, nonarbitrary manner. The Court noted the union must have the discretion to weed out frivolous grievances to avoid the costliest and most time-consuming part of the grievance process.  However, the union violates its duty, if it arbitrarily ignores a valid grievance or makes decisions based on wrongful conduct.

Union Negligence is not a Breach

A union is allowed to be negligent in the provisioning of its services to both dues paying and non-dues paying members.  Unions operate largely without accountability concerning services they provide members unless criminality is involved.  If a union provides bad technical (representational) advice to a member (dues paying or not) and following that advice results in the removal of the employee, who would not have otherwise been removed, the union generally bears no liability for it’s actions.  For example, in AFGE, Local 3529 and Jerry Cyncynatus, 88 FLRR 1-1152 , 31 FLRA 1208 (FLRA 1988), the FLRA found AFGE did not breach its duty of fair representation when it failed to file a timely grievance. The FLRA concluded case facts showed “mere negligence” on the part of a union representative, not intent to treat one unit employee any differently from others. In National Federation of Federal Employees and Henry M. Thompson, 86 FLRR 1-1869 , 24 FLRA 320 (FLRA 1986), the FLRA found no breach of the Duty of Fair Representation when a union representative failed to show up at a previously scheduled hearing to represent an employee.

Summation

The Duty of Fair Representation refers to the union’s duty to represent the interests of all bargaining unit employees, regardless of whether they are union members (dues paying). This duty is statutory and states that an exclusive representative is “responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” In short, federal unions must fairly and equally represent all unit members in grievances and collective bargaining matters, or risk an unfair labor charge.

The most important take away is perhaps the fact that an employee could be adversely affected by negligent representation and there is no recourse.

Click here for more information on the Duty of Fair Representation (Source: FLRA).

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