The Duty of Fair Representation and HPWO Partnerships

Introduction 

When the union, in partnership with management, jointly designs and implements new work systems, union leaders need to be sure that the union is fairly representing the members of the bargaining unit. This long-standing union obligation is known as the duty of fair representation. 

The duty of fair representation is not only mandated by good trade union principles, it is also the law. As the exclusive representative, the union has the legal duty to fairly represent all bargaining unit members. This legal duty is enforceable in court as well as by the appropriate government agency (i.e., National Labor Relations Board, Canada Labour Relations Board, state or provincial agencies). Therefore, as in all other aspects of union responsibility, when union leaders initiate HPWO partnerships, they must fulfill their legal duty of fair representation. 

Duty of Fair Representation Standards 

The union”s duty of fair representation is violated when union leaders act in an “arbitrary, discriminatory, or bad faith manner.” The heart of the duty is the requirement that the union act in the employees’ interest, and that such action does not negatively impact the members of the bargaining unit. Honest mistakes generally are not a violation of the duty, and the courts have made clear that union leaders are allowed a “wide range of reasonableness” in their actions. 

Perhaps the easiest way to flesh out the “arbitrary, discriminatory, or bad faith” standard is to provide some examples of conduct explaining the duty of fair representation: 

• Union leaders are not required to take every grievance to arbitration, even if the grievant/grievor wants to arbitrate the issue, but the union steward or representative dealing with the problem, issue, or difference that arises should:
  • perform a thorough investigation;
  • follow contractual time limits;
  • keep an employee informed as to the status of his or her grievance; • decide whether to pursue the grievance based on a judgment of the merits of the grievance rather than on personal bias;
  • advise the grievant/grievor of the decision and the reasons therefore.
• Although it is not strictly required by the duty of fair representation, it makes sense to keep a written record to prove that these things have been done properly.
• Violations of the duty of representation may result from the following actions:
  • Treating employees differently because of their gender, race, religion, political considerations, or sexual preference.
  • Acting in a completely arbitrary manner; for example, pulling a grievance for no reason whatsoever.
  • Acting in bad faith, lying to a grievant/grievor, or going out of the way not to help someone out of any personal feelings or reasons.
  • Discriminating on the basis of membership status.
• In particular issues like seniority, job placement, availability of training, and appointment to union positions, there are often winners and losers. In contract negotiations, some proposals may help some employees more than others. Making tough choices, for example, the situation where whatever the union decides, one group of employees will benefit more than others does not violate the duty so long as the union is using its best judgment and not acting specifically to hurt one group of employees. Simply put, as long as union leaders are protecting the interests of the bargaining unit as a whole, no violation of the duty of fair representation will occur.

The HPWO and Discipline/Discharge Decisions 

Labor and management need to agree that certain decisions will remain the responsibility of management and will not be jointly made with the union. Because the union represents the employees and is bound by the duty of fair representation, the administration of discipline remains the sole and exclusive function of management. As in a traditional work system, union leaders meet with management and affected employees before disciplinary actions are carried out. In the meeting the union may be able to clear up problems or situations and help devise solutions which do not result in disciplinary action. However, once management decides to administer discipline, the appropriate steward or representative has the duty and responsibility to investigate and handle grievances under the duty of fair representation guidelines outlined above. The stewards and other union representatives apply well-established principles of just cause in evaluating whether or not a disciplinary action taken by management was appropriate. 

Conclusion 

The duty of fair representation, even in joint decision-making processes, requires an independent grievance procedure. Therefore, the new work system in an HPWO Partnership requires, as part and parcel of the Labor Agreement, a provision for a grievance procedure with its traditional steps to expedite and arrive at prompt and reasonable resolutions. Through the grievance procedure union leaders protect the contractual and other rights of bargaining unit members and represent them when necessary. When union leaders provide such representation, they are meeting their duty of fair representation. 

The union’s duty of fair representation is fully consistent with an HPWO as long as the partners follow the guidelines set forth by the IAM. Joint labor-management decision-making in areas such as staffing, work rules, training and education, production scheduling, etc., are well within the “wide range of reasonableness” afforded the union. These actions are reasonable as long as the joint decision-making process protects the interests of the membership. This consistency between a duty of fair representation and the HPWO Partnership process is maintained when union leaders make decisions that protect the best interest of the membership as a whole.