Duty of Fair Representation
The statutory fight of exclusive representation mandates fair representation of all members of a bargaining unit. This obligation emanates from Section 5 of Chapter 150E. This section also provides for the processing of grievances by individual employees without interference from the Union, provided that the union has the opportunity to be present at any adjustment, and that such adjustment is not inconsistent with the provisions of the Agreement.
The duty requires that the Union represent the interests of all employees fairly and impartially. The Union may refuse to file or process a grievance for any number of reasons so long as they are valid; it may not arbitrarily refuse to process a meritorious grievance or decline to proceed to arbitration because of hostility to the grievant or irrelevant and invidious considerations. Thus, while no employee has a right to have his grievance processed or taken to arbitration if the Union determines, in its discretion, that it lacks merit, still the union may not refuse to process or go to arbitration on a meritorious claim simply because the grievant is widely disliked (or is a non-member). The right to speak for all employees in the bargaining unit carries with it the corresponding duty to protect them as well. Fair representation applies to negotiations, the decision to process or not process a grievance and the way in which a grievance is in fact processed, through arbitration.
A. Standard of Conduct
1. 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.
2. Neither negligence nor a mistake in judgement on the part of the Union will support a claim that a Union breached the duty of fair representation.
3. A breach of duty of fair representation occurs when the Union acts based on improper motivation or in a manner which is arbitrary, perfunctory or inexcusably neglectful.
4. 4. Since a Union will often be required to represent different and conflicting interest, it is allowed a wide range of reasonableness in fulfilling its statutory duties.
B. Negotiations
The Union is allowed a wide range of reasonableness in serving the bargaining unit it represents, subject to good faith in the exercise of its discretion. Although ordinary negligence doesn't amount to a breach, a lack of a rational basis for Union decision and egregious unfairness or reckless omissions or disregard for individual employees' fights may constitute a breach.
