ABA Family Legal Guide

Law and the Workplace

On the Job

Unions in the Workplace

What does the duty to represent the workers fairly entail?

In carrying out its responsibilities, the union has to make many decisions. It has to decide whether to ask the employer for better wages or better pension benefits. It has to decide whether an employer's decision to discharge a worker violated the contract or was based on just cause. The basis on which the union makes its decision on these and other issues affecting the workers cannot be arbitrary, discriminatory, or in bad faith.

For example, a worker is discharged for tardiness and complains to the union. The union has to decide whether it should file a complaint under the contract's grievance procedure to protest the discharge or whether the employer was within its rights to discharge the worker. If the union decides not to file a grievance because the worker is not a union member, or because the worker is African-American, it has violated its duty to represent the worker fairly. That decision is based on a discriminatory reason. If, however, the union decides not to file the grievance because the worker was tardy for fourteen days in a row and this violated a known company rule, then the union has not violated its duty to represent the worker fairly.

Unions are allowed considerable discretion in making such judgments. Mere negligence is not a violation of the duty of fair representation. But if a union decision is based on arbitrary, discriminatory, or bad-faith reasons, the concerned worker can file a charge with the National Labor Relations Board (NLRB) alleging a breach of the duty of fair representation. In some circumstances, such a claim can also be the basis for a lawsuit in federal court.