#2 Essay Site on Sitejabber
+44 20 8638 6541
  • 中文 (中国)
  • English GB
  • English AU
  • English US
  • العربية (Arabic)



All unions have a duty of fair representation to their members. Where there is an alleged breach of that duty, arbitration has been an effective method of resolving employment problems between the employer, unions and the employee or employees. Arbitration uses an independent body, a tribunal, to decide the issues in dispute between the two parties. There will be a hearing with an arbitrator or arbitrators (the parties will determine whether there is more than one – the default is one) with the number of arbitrators to ensure that there will be a majority decision. An arbitration hearing resembles a court hearing, but can be less formal. Their decisions are considered to be binding like those made in court and legally accepted.

Arbitration operates under certain principles. First, they are free from interference from other legal bodies like courts. Second, the parties involved must accept the decision rendered and there is no subjection to further reviews. This is done to avoid the delay and expense of continuing reviews of a decision by courts which may not be as familiar with the issues as the arbitration tribunal. Third, a main objective is to come to a final decision  using the principle of fair representation of both parties without any party being given any special preferences.

Members of such tribunals are appointed under one of the following options. 1) Their appointment can be made by the parties in the case. This action is based on mutual agreement between the disputing parties. 2) Sometimes existing members can continue their services as the member if the parties consent to that continuation; 3) In special conditions their appointment can be done by a court of law.

Arbitration Process

Due to the independence enjoyed under the Public Law Act, arbitration processes are created under these provisions to assist the independent bodies of employees and of management to take part in resolving a problem independently and in an amicable manner.

These operations are confined within public law to ensure the rights and duties of people are not breached by employers or unions. The process looks at ways under which they can control activities, and review whether the participants are acting within the legal boundaries. One major duty is to ensure there is an act of fair representation within that environment.

Arbitration Process Is Successful Operating Within These Requirements

The arbitration process reviews the procedures used by employers and unions when safeguarding employees’ rights in the context of their employment. It reviews carefully the manner in which grievances occur and how they are processed by the union. This process is of critical importance as the eventual outcome has substantial direct impact on the process of arbitration and that of the participants. Unions look at the rights they enjoy of exclusive representation to ensure their goals are met. All of these issues result in substantial emotional responses when they are discussed.

Whenever there is a case to be reviewed, the issue of determining the nature of the arbitration is essential as any wrong choice might be disputed. Under provisions of the laws in existence, classification remains paramount and decisions need to be made effectively. Under the present law there are three choices. Commercial arbitration which is mandated to deal with commercial issues only. Consumer arbitration which addresses the issues concerning a seller and their rights and duties to their consumers. Labor arbitration which reviews the issues pertaining to employees and their employers.

Duty of Fair Representation

Section 7114(a)(1) of the United States Code Title 11 provides the framework of the statutory DRF[I don’t know what this is.]  in the context of collective bargaining. Any organization which is given an exclusive recognition on representation of employees is required to act in good faith and provide the benefits of collective bargaining to all of its members and non-members effectively. It should carry these services without discrimination by race, gender, religion or any other factor of the employees it represents.

In the case of Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA No. 118, 28 FLRA 908 (1987), it was decided that a shared agreement be given priority over individual member’s contracts of engagement with their employers. Under the aspect of collective engagement, employers come to an agreement with their staff unions with goals of improving productivity and lessening employee discontent.

Whenever organizations hire employees, the terms of hiring must be aligned with the trade organization’s agreement to ensure they are complying with all labor laws. In order to safeguard these requirements, it is important to look at these requirements. First, if they do not comply with the requirements, they can be charged for failing to comply with the NLRA. Second, they cannot restrain their employees from exercising their freedom to enter into an agreement with a union which will offer them a bargaining advantage whenever workplace issues come up. Third, they cannot supersede or put limits to employees’ rights to a general bargaining advantage against their employers.  Finally, all issues concerning collective bargaining should be taken into consideration which allows all of them to be accessed and approved appropriately.

In order to meet these needs, employers are required to ensure they are looking at all possible factors which might deter their success on legitimate collective gains. However, they need to go deeper than just looking at a collective bargaining agreement to ensure that even the well treated employees are protected for the benefit of all members, and to enlarge their needs basis. In this case, the court was looking at the suitability of helping all employees and their general gains as no one knows when an employee will need the union’s help. Members must be free from issues of unprecedented prejudice.

Noel v. Societe D’Energie de la Baie James, [2001] 2 S.C.R. 207 (S.C.C.) involved the Quebec Labor Code, and a number of other procedural and substantive statutes. The Supreme Court of Canada identified that the DFR cannot be used against the plans of the union in getting the advantages of the collective process in order to defend its members. They further ruled that the DFR was enforceable, and damages can be awarded in a public court. They ruled that the Railway Act on Labor was clear, and it excluded taxes on its Brotherhood. Therefore, rights of minorities were being protected against unfair treatment.

They further agreed that all employees are subject to tax exclusion as there are no special employee, neither those in the minority or those in the majority. The court ruled that there must be the will to protect minorities represented as stated in the Act. Their interest should be safeguarded. As a principle before the parties, the court was mandated to ensure the interest stated was granted to the parties respectively. The railway labor act was focusing on the exclusive right to discuss with their employers, and they were not permitted to act in a manner that could adversely affect the rights of the employees. They were to fairly represent all employees to ensure the union performed appropriately the eyes of the law.

Further, the court sought to understand how the results required could be achieved if the duty of representation was not included. The court ordered unions to not discriminate against their members on a racial basis which would otherwise deter the minority from achieving the same gains as the majority. The minority was the target that the court was interested in protecting in order to mitigate the damage which would otherwise occur.

Unions are not allowed to implement policies or actions which differentiated between their members. This was meant to restrict them from discriminating between its members. However, the court was keen at defining the term seniority in respect to its actions. It considered an employee to be considered senior if he/she performs special tasks, and he/she has adequate skills which will need to be considered during the remuneration deciding process. Moreover, in defense of the union’s actions, the law does not become null and void in all aspects, as it gives the union some privileges to ensure that all members receive what is appropriately owed to them. However, the court also decided that unions must ensure they are in a position to take into consideration the needs of minorities in society.

They are also to combine nonunion members in their bargaining agenda. The law goes further to require unions to have strategies which are friendly and imperatively fair to its members, and which are exercised in the aspect of utmost good faith. The court’s decision has a direct relationship to the laws in the constitution which require all bodies to give equal protection to all citizens and their interests. The court required that all of a union’s policies to be consistent with the constitution. When unions are executing their duties, they are required to ensure they are showing fair treat to all members and not discriminating against any member.

Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944)

This was a case intended to settle the issues arising from the discrimination of parties, and the development process of a statutory DFR. This case study has been used by many students to study and understand the role of fair representation and the best practices in DFR.

NLRB v. Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enforcement denied, 326 F.2d 172 (2d Cir.1963)

This case appeared before an honorable court two decades after the Steele case. The petitioner alleged that there was a breach of fair labor practices as decided in DFR cases. It adopted the proceeding as they were developed to urge on unfair practices against its union members by their employers. (I have no idea what this sentence means) The court ruled that no union is allowed to force an employer to punish their employees because they are not members of the union. In such situations, the union will be violating section 8(a)(3) and 8(b)(2). This would result in unfair practices when the union is targeting employees who are nonmembers. This union behavior could result in hindering employees from enjoying their rights and freedom to either join a union of their choice or stay without being a member of any union.

Minimizing and/or Enlarging the Scope of DFR

Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)

The duty of fair representation (DFR) was forced upon unions under the NLRA. It operates on the basis of social and public justice. The court stressed that any reduction of the requirements of DFR, need crucial reasons which are law based and within the requirements of the law. DFR ensures all members are treated fairly and equally by the union. Further in the same case, it emphasized the powers of the union in decision making which do not violate DFR. It further reviews the status of  employees of all social status.

 Syres v. Oil Workers International Union, Local No. 23, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955)

Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964)

The court concluded: 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.

Air Line Pilots Association, International v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991)

In this case, the court ruled: A union’s behavior exceeds the wide range of reasonableness afforded in Ford Motor only if its conduct is irrational, when it is without a rational basis or explanation.

The DFR is similar to the duty owed by other fiduciaries to their beneficiaries, such as the responsibilities of corporate officers and directors toward shareholders. A union owes employees a duty to represent them adequately as well as honestly and in good faith. In labor disputes, even a bad settlement may be more advantageous in the long run than a good lawsuit. Taking care to consider that legal uncertainties existed concerning the seniority rights of former strikers and the possibility of protracted litigation, the settlement was deemed reasonable.

Labor Grievance Arbitration

The union’s representative power of exclusiveness in grievance procedures

When laying strategies to address any grievance procedures, members are left out to allow the members of the arbitration board to decide. They follow certain procedures to ensure they can be fair to each party. The union members are excluded from such situations to ensure that the arbitration board is in a position of getting right results in a simple way. Its purpose is to ensure they are satisfied by the decision arrived at. (This paragraph does not match the title, and makes little sense because the pronouns do not clearly express who they are referring to)

The individual’s position

During execution of these processes individuals are required to be open, and free from bad faith and prejudices. They are in a position to contribute, but they are required to give facts and not opinions, unless specifically relevant to the issue. During their contribution, they are required to give all of the information they have rather than holding it back relevant facts. After their submissions are done, they are required to allow the decision makers to come up with their conclusion.

The employer’s scope of action

The employer is required to give his position, and avoid misrepresenting any information. If the verdict is against the employer on an issue it will be required to pay damages.

The DFR in the Context of Grievance Arbitration

The leading cases have ruled that for there to be a violation of DFR, the union’s behavior must be arbitrary, discriminatory, or in bad faith, and may not only constitute mere negligence.

Vaca v. Sipes 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)

In operation, procedures are sometimes violated, DFR requirements are not met as expected, and this will affect the goal of fair representation. In this case, the main issue was whether federal law was required to be applied rather than state law. The conclusion was that federal law applied in interpreting the requirements of the duty of representation.

Applying the federal law of DFR, it was decided that the union to be in violation must have acted in an arbitrary or bad faith manner. The decision as to arbitration was clear. Arbitration may be required in most cases, but there will be some cases that are exempt and can be filed in court.

The court ruling was based on the role played by DFR. Cases are decided on the basis of contracts which existed between the employer and his employee, and the union and member relationship. If the employer is found to have acted in violation of the law, the employer and union can be charged for damages.


Under this situation the court identified that DFR which was created before the formation of the NLRB, and had more rights for the ULP unions. The court found that the board was operating under laws which were created by federal courts. This was the basis of their action subject to review.

According to the court, a wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its DFR in its handling of the employee’s grievance. (This is not a correct statement of the law, but it is good English) This means that an employer has an obligation against his employees in case they fire them.

In an employee’s suit against the employer, it is decided that an employee has the right to sue his employer for any misconduct he/she considers to be unfair treatment. This was introduced to protect employees from employers who are out to act solely in their own interest without consideration of the needs and rights of employees.

Employee have the right prove an unfair labor practice (ULP) by the union. Employees have the right to perform their duties as members of union. Employee also have the right to prove an ULP by the employer. Employees have the right to move directly against their employers. This decrease the time to the final decision in the case.

However, a court is free to determine whether the employee is barred by the actions of his union representative, and, if not, to proceed with the case. This will help in reducing the amount of caseload, as there are those employees who will try to look at the possible ways of requiring arbitration procedures.

An employee may join the union as a defendant, and the jurisdiction of the courts is not pre-empted under the Gammon principle. Sometimes employees join unions as a precaution against their liabilities in the future from their conduct in their performance of their job duties.

An employee can sue the employer and the union in separate court or arbitration actions. Lawsuits are allowed by the court in certain situations to take action against either or both the union and the employer. If a breach of duty by the union, and a breach of contract by the employer are proven, the court must fashion an appropriate remedy. Presumably, the union’s breach of duty will have enhanced or contributed to the employee’s injury.

There is no reason in allowing a court to fashion a remedy only with respect to the employer. Under such a rule, either the employer would be compelled by the court to pay for the union’s wrong or the injured employee would be forced to go to two tribunals to repair a single injury.

The board would be compelled in many cases either to remedy injuries arising out of a breach of contract, a task which Congress has not assigned to it, or to leave the individual employee without remedy for the union’s wrong. There are strong reasons for not pre-empting DFR suits in general. The fact that the courts in many suits must adjudicate whether the union has breached its duty, does not preempt courts from also providing remedies for such a breach of duty.

The unique role played by the DFR doctrine renders the Garmon preemption doctrine inapplicable. A union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion. The individual employee has no absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement.

Grievance and arbitration procedures give the union discretion to supervise the grievance machinery and to invoke arbitration if necessary. However, both the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures, and similar complaints will be treated consistently. The settlement process furthers the interest of the union as a statutory agent and as coauthor of the BA.

If the individual employee could compel arbitration of his/her grievance regardless of its merit, there are a number of negative outcomes. The settlement strategy provided by the union would be significantly weakened, would hence rescind the employer’s assurance in the union’s power, and frequently open particular employees who file grievances to the whims of sovereign and haphazard intervention. Also, a significantly greater number of grievances would proceed to arbitration.

The union’s statutory DFR protects the individual from arbitrary abuses of the settlement device by providing him with recourse against both employer and union. The employee must prove arbitrary or bad-faith conduct on the part of the union in processing his grievance. If the union in good faith and in a non-arbitrary manner, makes decisions as to the merits of particular grievances, the DFR has not breached the right to claim proper arbitration.

An award against a union cannot include damages attributable solely to the employer’s breach of contract. The employee should recover these damages from the employer. However, the employer cannot hide behind the union’s wrongful failure to act. The governing principle is to apportion liability between the employer and the union according to the damage caused by the fault of each. An employee who has obtained a judicial determination that he was wrongfully discharged, is left remediless if this was not the law.

The court held that an employee cannot sue his employer for breach of contract unless his failure to exhaust contractual remedies is due to the union’s breach of its DFR. The union’s refusal to exhaust such remedies does not amount to a breach of its duty unless it is done arbitrarily and with bad faith. Either the employee should be able to sue his employer for breach of contract after having attempted to exhaust his contractual remedies, or the union should have an absolute duty to exhaust contractual remedies on his behalf unless the grievance is truly without merit. This decision can be interpreted to put an intolerable burden on employees with meritorious grievances, and means they will frequently be left with no remedy

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976)

The union’s breach of the DFR in settling a grievance before arbitration improperly relieves the employee, in the Section 301 action against the employer, of the duty to exhaust the grievance procedures. So does the union’s subversion of the arbitration process itself remove the bar to arbitration. The court, a union can violate the duty if it ignores an employee’s complaint or processed it in a “perfunctory manner”.

Even if a grievance had been fully considered under contractual grievance resolution procedures, the employer could still be sued for breach of contract if the grievance procedure was tainted by the union’s violation of the DFR. A union’s breach of the DFR relieves the employees of an express or implied requirement that grievances be settled through contractual grievance procedures.

Still, the employees will not prevail merely by showing that the charges against them were false and that they were fired without just cause. Nor is it sufficient to show that the union made errors of judgment in representing them. They must show that the union had been dishonest or acted in bad faith or in a discriminatory fashion.

United Steelworkers of America v. Rawson, 495 U.S. 362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990)

No matter how negligence occurs it, even in the enforcement of a collective bargaining agreement, would not state a claim for breach of the DFR. This case presents a narrow definition of the scope of the union’s DFR.

In the case of, Ruzicka v. General Motors Corp., 523 F.2d 306 (6th Cir. 1975), the court held that because the union had not decided that Ruzicka’s grievance was without merit, “such negligent handling of the grievance, unrelated as it was to the merits of Appellant’s case, amounts to arbitrary representation. It is a clear example of arbitrary and perfunctory handling of a grievance.”

Any negligence by the union in carrying out safety inspections cannot violate its DFR. In addition, although a labor agreement might possibly impose upon the union a more rigorous duty of conduct to the workers in the bargaining unit, the contract in this case did not do so explicitly enough.

Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983)

One of the decisions in this case was that there will be Apportioned responsibility between employer and union as in Vaca v. Sipes – union has to pay its damages. The union must bear some responsibility for increases in the employee’s damages resulting from its breach.

Although each party participates in the grievance procedure, the union plays a pivotal role in the process since it assumes the responsibility of determining whether to press an employee’s claim. The employer must rely on the union’s decision not to pursue an employee’s grievance.

Prior to imposing total liability solely on the employer, the following issues must be reviewed. Would making the employer alone responsible for the consequences of the union’s breach of duty, negatively change the nature of each of the relationships? Would doing so affect the willingness of employers to agree to arbitration clauses? Also, should there be no burden on the union inconsistent with national labor policy? Would it provide additional incentive for the union to process its members’ claims where warranted? Finally, is it consistent with the union’s commitment to the employer under the arbitration clause?

When there is a concurring/dissenting opinion

Under both Vaca and Hines, as far as the employer is concerned, a union’s breach of a fair representation duty does no more than remove the procedural exhaustion-of-remedies bar to filing suit by an aggrieved employee. The union is liable in damages to the extent that its misconduct adds to the difficulty and expense of collecting from the employer

Case law on the DFR: moving along a continuum

International Bhd. Of Elec. Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698(1979)

This case stands for the rule that there can be No punitive damages against a union because of breach of the DFR. The union untimely filed a grievance for a discharged employee. The Railway Labor Act does not contemplate the award of punitive damages against a union which violates its DFR.

Punitive awards could impair the financial stability of unions and unsettle the careful balance of individual and collective interest. The broad discretion of juries to award punitive damages would make recoveries unpredictable and potentially inappropriately substantial. Finally, the threat of punitive damages would unduly interfere with the salutary exercise of union discretion in handling and settling grievances.

Clayton v. International Union, United Automobile Workers, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981):

However, where an internal union appeals procedure cannot result in reactivation of the employee’s grievance or an award of the complete relief sought in his suit, exhaustion will not be required with respect to either the suit against the employer or the suit against the union.

United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981)

In this case, the court ruled that The proper statute to “borrow” is that for vacating an arbitration award. In a suit against an employer alone, there is no federal statute of limitations for an action under Section 301. In most states it is 90 days. Actions for contract breach are recommended under which one is allow to raise suggestions of intention to take legal action against an employer or a union.

DelCostello v. International BHD. Of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)

The court ruled that The pertinent period – borrowed from Section 10(b) of the NLRA – is to be 6 months. The court distinguished United Parcel Service. Both the Section 301 action against the employer and the DFR action against a union are to be governed by an implied federal statute of limitations.

In the labor setting, the employee will often be unsophisticated in collective bargaining matters, and he will almost always be represented solely by the union. Very short limitation periods would therefore fail to provide an aggrieved employee with a satisfactory procedure. The analogy to the NLRA is more apt than any of the suggested state-law parallels.

The court did not decide whether, as the NLRB consistently has held, all breaches of a union’s DFR are in fact unfair labor practices, but admits the family resemblance. There is a substantial overlap, because DFR claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by unions, as are virtually all unfair labor practice charges made by workers against unions.

Communication Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988):

The Vaca v. Sipes standard applies to challenges leveled not only at a union’s contract administration and enforcement efforts, but at its negotiation activities as well.

Breininger v. Sheet Metal Workers, Local 6, 493 U.S. 67, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989)

The court in this case ruled that The reasoning in Vaca in no way implies that a fair representation action requires a concomitant claim against an employer for breach of contract. The Board’s assertion of jurisdiction in Miranda Fuel to remedy DFR violations under Sections 8(b)(1) and 8(b)(2) does not oust the courts of jurisdiction to enforce the duty as well. The fact that an employee may bring his fair representation claim in federal court in order to join it with a section 301 claim does not mean that he must bring the fair representation claim before the Board in order to join it with a hypothetical unfair-labor-practice case against the employer that was never actually filed.

DFR is not intended to mirror the contours of Section 8(b); rather, it arises independently from the grant under Section 9(a) of the NLRA. Miranda Fuel expands the remedies available to employees. There is no justification for using unfair labor practice provisions so as to restrict employee rights.

Beavors v. United Paperworkers International Union, Local 1741, 72 F.3d 97 (8th Cir.1995):

The court concluded in this case that an unexplained untimely submission of grievance may violate DFR.

Vencl v. International Union of Operating Engineers, Local 18, 137 F.3d 420 (6th Cir.) cert. denied, 525 U.S. 871, 119 S.Ct. 168, 142 L.Ed.2d 138 (1998):

This case decided that a union’s failure to take a basic and required step is arbitrary and perfunctory conduct violating the DFR.

Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998):

Under this case, there was no violation of the DFR when the union negotiated a union security clause that tracked the language of the National Labor Relations Act, even though that meant it did not fully detail all employee rights under that clause.

Lampkin v. Automobile Workers, Local 1093, 154 F.3d 1136 (10th Cir. 1998):

In this case, the court was faced with the following facts. The union failed to advise employer that reason for employee’s absenteeism was his wife’s serious injury in an automobile accident. The employee went on with the case.

Webb v. ABF Freight System, Inc., 155 F.3d 1230 (10th Cir.1998) cert. denied, 526 U.S. 1018, 119 S.Ct. 1253, 143 L.Ed.2d 350 (1999):

Here, the union’s conduct was perfunctory by failing to present a claim of retaliation, and in misleading both the grievant and the grievance panel about the significance of the grievant’s absence from the hearing.

Neal v. Newspaper Holdings, Inc., 349 F 3d 363 (7th Cir. 2003):

This court’s decision was that negligent failure to file a grievance on time does not breach DFR.

Scott v. New York Health and Human Services Union, 172 LRRM 2331 (S.D.N.Y. 2003):

This court reached the same conclusion as Neal v. Newspaper Holdings, Inc. which was that negligent failure to file a grievance on time does not breach DFR.

Beck v. United Food & Commercial Workers Union, 506 F.3d 874 (9th Cir. 2007)

On one end of the continuum is intentional conduct by a union exercising its judgment. A union’s conduct constitutes an exercise of judgment entitled to deference even when the union’s “judgments are ultimately wrong”. Under Supreme Court precedents, as long as the union exercises its judgment, no matter how mistakenly, it will not be deemed to be wholly irrational. On the other end of the continuum are engagements or lapses that are accidental, unreasonable or exclusively unfathomable, such as a ridiculous fiasco to achieve a legislative or procedural act.

Academic approaches to the DFR

Clyde W. Summers in his book, “The Individual Employee’s Rights under the collective agreement: What constitutes fair representation?” 126 U.Pa.L.Rev. 251, 179 (1977), discusses in depth the issues involved in the duty of fair representation by a union to an employee.

From law to reality: the realistic strength of the DFR

The real profiteer: union, employee or employer?

Under the proper management of the employment relationships, all of the three parties are subject to having substantial benefits and financial rewards. However, the employer is the clear winner among the three parties. This is because in most cases the employer is substantially in control of the employment conditions. The key activities involve all of the three parties, but the employer is at the forefront of the matter, and the employer believes in making changes. The union acts as an intermediary in most cases of disputes between the employer and employees.

The arbitrator’s view – NAA proceedings

Under normal circumstances arbitration is a crucial requirement of labor unions. It helps in minimizing the amount of time which would probably be used in court proceedings. Their decisions are final and acceptable by courts of law. If due process is followed by the appointing parties, arbitration can help in controlling the issues which constantly arise in employment relations.

Impressions of grievances of non-represented individuals

In employment, some people work without being a member of any labor union. These employees can fall into situations whereby they need help, but their issues cannot be heard in a normal arbitration as they are not represented by the union. Therefore, this situation calls for other means of dispute resolution such as the use of court proceedings. This can be a great disadvantage to nonunion employees.

Short comparison to individual employment arbitration

Arbitration for individuals can be held in some cases. It can be the result of rights violation or due to money issues. However, these are sometimes hard to be resolved if the procedures of appointment of the arbitrators are not used in the right way.

DFR claims in numbers

From an informal review of DFR cases from 2000 – 2004, employees continue to bring DFR cases in large numbers. However, their success are few. This suggests that employees and their attorneys are reluctant to accept the notion that a union’s misjudgment in handling a grievance, even if it costs the employee’s job, does not ordinarily give rise to a cause of action. Courts appear to have now widely accepted the degree of deference to union decision making dictated by the Supreme Court decisions.

AFSCME (American Federation of State, County, and Municipal Employees)

When the union is approached about a grievance, the union needs to conduct a full investigation. This includes interviewing the grievant and all witnesses, reviewing the contract to see if there are any potential violations, requesting all relevant information from management, and keeping detailed records of the investigation.

The union cannot refuse to file a grievance because of race, sex, religion, politics, personality, or membership status. It must represent all members of the bargaining unit regardless of the union’s personal opinion of the worker involved in the grievance. The grievant should be treated as the union representative would want to be treated. Keep the grievant current on the progress of their grievance. Don’t disregard a grievance simply because the grievant has filed a number of frivolous grievances in the past.

If it is decided to drop a grievance, the employee should be notified prior to formally removing the grievance. Give the grievant a specified time to provide additional relevant information. Keep records of all conversations and written material used to notify the grievant that his or her case is being dropped.

Prepare thoroughly for all arbitrations. Simply taking a case to arbitration is not a defense against a DFR charge if the union does not prepare for the arbitration.


Arbitration is conducted under special situations where parties are disputing an alleged mistreatment of an employee. The parties work together to resolve the matter in a private forum rather than public court systems. Arbitration proceedings are governed by principles of honesty and good faith.

Unions are tasked with a mandate to control the way their members are treated by their employer. This means they have a duty of fair representation, and they are obligated to offer such services without any bad faith, arbitrariness or prejudice.


All employees have a right to fair representation in the arbitration process. As additional protection, unions are required to assist employees to ensure their members are protected from discrimination in labor arbitrations.

The arbitration process has a number of benefits associated with it. These include, freedom to choice their decision maker, efficiency, privacy, convenience, flexibility, finality, cost effectiveness, splitting the baby, no appeal, and chilling effects. These benefits are useful to both parties, and they contribute in making the process more simplified. The parties are open to each other, and they must participate in the discussion before a conclusion is made. In binding arbitration this means the decision cannot be reversed by a court, and the party on the losing side will have to accept the decision.

Arbitration plays a crucial role in dispute resolution in employment. This method of decision making allows a simplification of the issues, and helps all of those concerned to resolve them. The employee, the union and the employer continue with their normal activities without the possibility of appealing the final decision of the arbitration tribunal. Finally, fair representation is paramount in the arbitration process. All parties to the arbitration should ensure that all evidence is provided in good faith so that fairness can be seen in the final judgment.


J.I. Case Co. v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944)

Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944)

Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944)

Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)

Syres v. Oil Workers International Union, Local No. 23, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955)

NLRB v. Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enf’t denied, 362 F.2d 172 (2d Cir.1963)

Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964)

Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)

Ruzicka v. General Motors Corp., 523 F.2d 306 (6th Cir. 1975)

Holodnak v. Avco Corp, 381 F. Supp. 191 (D. Conn. 1974), aff’d in part and rev’d in part, 514 F.2d 285 (2d Cir.), cert. denied, 423 U.S. 892 (1975)

Belanger v. Matteson, 115 R.I. 332, 346 A.2d 124 (1975), cert. denied, 424 U.S. 968 (1976)

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976)

International Bhd. Of Elec. Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979)

Clayton v. International Union, United Automobile Workers, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981)

United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981)

DelCostello v. International BHD. Of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)

Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983)

Communication Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)

Breininger v. Sheet Metal Workers, Local 6, 493 U.S. 67, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989)

United Steelworkers of America v. Rawson, 495 U.S. 362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990)

Air Line Pilots Association, International v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991)

Beavors v. United Paperworkers International Union, Local 1741, 72 F.3d 97 (8th Cir.1995)

Vencl v. International Union of Operating Engineers, Local 18, 137 F.3d 420 (6th Cir.) cert. denied, 525 U.S. 871, 119 S.Ct. 168, 142 L.Ed.2d 138 (1998)



 [NS1]I don’t know what this is.

How The Order Process Works

Amazing Offers from The Uni Tutor
Sign up to our daily deals and don't miss out!

The Uni Tutor Clients