A Fair Process Model for the Union's Fair Representation Duty

Abstract

Union representation requires that some individual interests be sacrificed for the good of the majority. The duty of fair representation however, provides employees with some recourse when the union’s actions have gone beyond the permissible standard of conduct in foreclosing arbitration of an employee claim. In the grievance and arbitration process of employment issues, the standard of analysis must balance the interests of the individual employee, the union and the employer. If the standard is set too high it may impair the collective strength of the union, and if set to low it may deny recourse to individuals and minorities that are truly denied valid claims for the good of the majority.

This article recommends a model for union decisionmaking that reconceptualizes the duty of fair representation as due process. It suggests unions should be required to determine the merits of an employee’s grievance through investigation and fact-finding, and pursue all grievances found to be clearly meritorious. Grievances that are found to be unmeritorious may be dismissed. By focusing on the grievance’s merit, the union’s decisionmaking will be most in line with the union’s duty of fair representation. This model is worked out in each of the categories of fact situations found in cases to date. Such a fair process model brings better process and better justice from the process, as well as satisfaction for the parties concerned. Labor justice and labor peace are after all the goals of federal labor policy.

Keywords: due process, fair representation, unions, merit based decisions, fair process, grievance, arbitration, fair procedure, balancing conflicting employee interests