DUTY OF FAIR REPRESENTATION
Since the union is the authoritative spokesperson for all employees, it has the obligation
to represent all employees fairly.
A. Under state and federal labor acts, a union commits a prohibited practice if it refuses
to fairly represent a bargaining unit member.
B. Basis of the duty: exclusive representation; fiduciary responsibility; implied contract.
C. A union breaches its duty of fair representation when it acts in an arbitrary,
discriminatory, or bad faith manner toward a member of the bargaining unit. A union is
afforded substantial discretion in negotiations and processing of grievances, but subject
to the above-mentioned criteria. The union must protect the interests of the group as a
whole as well as individual interests, and reconcile conflicts as fairly as possible.
E. The union has duty of fair representation in the following situations:
1. During collective bargaining for a new agreement.
2. During the life of the contract, including processing grievances.
3. In making a decision to arbitrate and in conducting the arbitration.
F. The union has no duty of fair representation in the following situations:
1. There is no duty to represent employees on matters which are unrelated to the
collective bargaining agreement.
2. For example, a union is not obligated to locate work for an employee who has
been discharged based on a physical disability, nor is the union required to help
the employee obtain rehabilitation services. Moreover, representation of
unemployment compensation and workers compensation claims generally are not
implicated by the duty of fair representation. Unions often volunteer to represent
bargaining unit members on such claims, however.
G. "Discriminatory" union conduct. Whenever the union takes an action which is based
upon irrelevant facts, it may be breaching the duty of fair representation by
discriminatory or bad faith conduct.
1. Examples of Illegitimate Factors:
a. Racially, sexually, or age-discriminatory contract language.
b. Membership or non-membership in the union.
c. Vocal disagreement with union leadership or trouble-making.
2. Examples of Legitimate Factors:
a. Cost to union.
b. Effect on worker - monetary or otherwise.
c. Effect on other workers.
d. Importance of the principle.
e. Trade-offs.
f. Merits of the grievance.
H. Arbitrary or Perfunctory Union Conduct.
1. Examples:
a. Deliberate lying.
b. Failure to investigate or consider the merits of the grievance.
c. Having a decision made by people who have a conflict of interest.
d. Making a poor attempt at garnering decent arguments on behalf of the
grievant, or at rebutting the employer's arguments.
e. Poor quality of presentation (extreme negligence in investigating,
extreme passivity in presenting the case).
I. The Duty in Grievance Processing and Arbitration Situations: The Wisconsin
Supreme Court held that a union should be given considerable latitude in the processing
of grievances and other aspects of contract administration, but that a union should
consider the following criteria in deciding whether to proceed to arbitration on a
grievance:
1. The merits of the grievance.
2. The monetary value of the claim.
3. The effect of the breach on the employee.
4. The likelihood of success in arbitration.
The WERC has since ruled that the union must, if challenged, put on record evidence of
the above considerations in its decision-making process, so that the record shows that the
union went through the weighing process and what factors it considered.
J. Examples of breach of duty of fair representation.
1. Per se refusal to process non-members' grievances.
2. Once a union decides to process a grievance it is a breach of fair
representation fail to attempt to gather favorable evidence.
3. Where union officers look for reasons not to help and offer no reason for
refusing to process grievances, there is a breach of fair representation.
4. Refusal to process grievances of members who have criticized the union or
filed charges against the union.
5. Negligence by ignoring a grievance may constitute a breach off fair
representation.
6. Perfunctory handling of an arbitration case which effectively prevents any
factual proof of the grievant's position may constitute a breach of duty.
7. Failure to make any decision on whether or not to arbitrate.
8. Failure to notify the grievant of a decision not to arbitrate in time for the
grievant to pursue other available remedies.
K. Note. The duty of fair representation only applies to the employer/employee
collective bargaining context. It does NOT require the union to represent
employees in court proceedings, administrative proceedings (e.g., DILHR
cases), or prohibited practice cases.
