This Executive Summary of the Federal Labor Relations Authority,
General Counsel's Guidance Memorandum to the Regional Directors
concerns the duty of fair representation under section 7114(a)(1)
of the Federal Service Labor-Management Relations Statute
(Statute). The Memorandum discusses the General Counsel's views
on legal issues arising from the duty of fair representation owed
to bargaining unit employees by a union serving as an exclusive
representative of a bargaining unit.
The Memorandum specifically focuses on such issues as the legal
tests for determining whether the duty of fair representation has
been violated, the types of factors that are relied upon in
making that determination and appropriate remedies for
violations. The Memorandum provides guidance on when a union may
and may not treat members and non-members the same when deciding
on what position to take on a matter affecting the bargaining
unit and explores the actions which agencies may and may not take
when an employee seeks assistance in the employee's dealing with
an exclusive representative. The Memorandum also discusses the
relationship between the duty of fair representation and the
selection of employees for work teams and awarding work teams as
a group. An appendix contains a summary of the duty of fair
representation cases that thus far have been decided. The
Guidance Memorandum and this Executive Summary reflect the views
of the General Counsel and do not constitute an interpretation by
the three Authority Members.
I.
Q. #1: What is the duty of fair representation?
The duty of fair representation is the duty that an exclusive
representative (the union) owes to employees in an appropriate
bargaining unit when the union represents those employees under
the Statute.
Q. #2: Is "DFR" the same thing?
Yes. "DFR" is the common acronym used to refer to a union's duty to fairly represent employees in a bargaining unit.
Q. #3: Where does this duty come from?
Section 7114(a)(1) of the Statute imposes this duty on unions
that are exclusive representatives.
Q. #4: What is the difference between a member of a bargaining
unit and being a union member?
A bargaining unit is the grouping of employees that the union
represents after a secret ballot election processed under the
Authority's regulations. Whether or not an employee votes for or
against a union in that election, or decides not to vote, if the
union is elected, the union must represent all employees in the
bargaining unit, whether or not they supported the union. The
employees in the bargaining unit may decide either to join and
become a member of the union and pay dues, or not to become a
member of the union which is now the exclusive representative.
Q. #5: What are the most common types of situations which
raise issues as to whether a union has breached that
duty?
This often arises when an employee has a dispute with the agency
and claims that the exclusive bargaining representative (the
union) has failed to properly represent the employee in that
dispute. These types of issues normally involve individual
employee concerns which adversely affect an employee, rather than
the institutional concerns that arise in bargaining disputes, and
are often accompanied by strong positions and personal emotions.
Q. #6: What is another type of common dispute which raises a
DFR question?
Duty of fair representation issues also can involve situations
where non-union unit employees claim that they are being treated
differently from union members by the manner in which the union
administers a provision of a collective bargaining agreement or
some other condition of employment over which the union has
exclusive control.
Q. #7: On what principle does the duty of fair representation
rest?
The duty of fair representation is grounded in the principle that
when a union attains the status of exclusive representative, it
must use that power to fairly and equally represent all
bargaining unit employees in the bargaining unit.
Q. #8: What are the legal tests to determine if a union has
violated its DFR?
There are two basic legal tests to determine if there has been a
DFR violation. One test concerns situations where a non-member
is unlawfully treated differently from a member. The other test
involves situations where the union has not properly represented
an employee.
Q. #9: What is the test with respect to different treatment
based on union membership?
Basically, an exclusive representative may not treat non-union
unit employees differently from dues paying union members in
matters over which the union has exclusive control and where the
non-members had no other choice for representation other than the
union.
Q. #10: Does this mean that a union must treat members and non-members the same in all matters?
No. Non-members must be treated the same as members only in
matters: which are within the union's scope of responsibility
because it is the exclusive representative; and, over which the
employee may not seek representation from another source, such as
a private attorney.
Q. #11: What is an example where the union may treat members
better than non-members?
A union may provide representation to members before the Merit
Systems Protection Board (MSPB) and refuse to provide that same
benefit to non-members because employees may select a private
representative in that third party proceeding.
Q. #12: What is the legal test to determine if a union did not
properly represent an employee and thus violated its
DFR?
This aspect of the duty of fair representation usually concerns a situation where either a union member or a non-member in the bargaining unit claims that the union was ineffective. The legal test is whether the union acted in an arbitrary manner and/or in bad faith. That is to say, the union's conduct must amount to more than mere negligence or ineptitude, but rather must have been outside the range of reasonableness, and must have constituted a deliberate and unjustified treatment of a unit employee different from other unit employees.
Q. #13: Does this mean that every time a union makes a mistake
when representing an employee in the bargaining unit it
has violated its duty of fair representation?
No. A union is given latitude to make good faith mistakes when
representing an employee. Mere negligence and ineptitude by a
union does not, standing alone, violate its DFR. Not all
mistakes rise to the level of deliberate and unjustifiable
arbitrary and bad faith conduct.
Q. #14: What types of factors are examined when deciding if a
union has violated this DFR standard?
Some factors to be considered are: whether the union can
rationally explain its conduct; whether the situation left the
employee with no venue to obtain a hearing/remedy for the
underlying dispute; and whether the union followed or deviated
from its past practices in the manner in which it processed the
dispute and dealt with the employee.
Q. #15: If a union decides to represent an employee in a matter
concerning a condition of employment where it did not
have to represent that employee (for example, before
the MSPB), but the union's conduct in performing that
service is arbitrary and in bad faith, has the union
violated its DFR?
The General Counsel has decided that this particular area of the
law needs clarification. Thus, he has instructed the Regional
Directors to submit this issue to his office for case handling
advice should it arise in an unfair labor practice charge.
II.
Q. #1: What objectives should a remedy for a DFR violation
satisfy?
Like all unfair labor practice remedies, a DFR remedy should:
recreate the conditions and relationships that would have been
had there been no unfair labor practice; effectuate the policies
of the Statute; contribute to the deterrence of future violative
conduct; and not be contrary to law or public policy.
Q. #2: What is the most common remedy that the General Counsel
will seek for a DFR violation?
Unless the DFR violation concerns a matter that should have been
processed under the parties' grievance procedure, the General
Counsel will seek a remedy that includes requiring the union to
make the employee(s) whole as if there had been no DFR violation.
Q. #3: What is an example of these make whole remedies?
For example, if a union violated its DFR by requiring non-members
to pay more than members for a negotiated benefit, such as a
smaller work shoe allowance for non-members than for members, the
General Counsel would request that the union be ordered to
reimburse the non-members the difference.
Q. #4: What remedy will the General Counsel seek when the DFR
violation concerns a matter that should have been, but
was not, decided under the parties' negotiated
grievance procedure?
If the underlying dispute between the employee and the agency
should have been decided under the parties' grievance procedure,
the General Counsel will initially seek a remedy that requires
the union to seek to process the grievance. However, when the
merits of the grievance cannot be decided under the negotiated
grievance procedure because, for example, the agency refuses to
process an untimely grievance, the General Counsel will seek a
make-whole remedy if the evidence establishes that the underlying
grievance was meritorious.
Q. #5: What is an example of this remedy?
For example, if a union violates its DFR by not properly
processing a grievance over a three-day suspension and the
grievance cannot be decided under the grievance procedure, the
General Counsel will seek an order requiring the union to pay
backpay for those three days if the evidence establishes the
grievance was meritorious under the contract provisions.
III.
Q. #1: Does the union have to treat members and non-members
the same with respect to union meetings?
No. Employees who are members of the union have certain benefits
by virtue of their union membership; such as the right to manage
and represent the union, attend meetings, vote for officers,
ratify contracts, and take advantage of union offers on benefits
such as health and life insurance and special credit cards.
Q. #2: Do non-members have a right to vote on what proposals
or interests a union will bring to the bargaining
table?
No. Participation in the union's decisional process that defines
the proposals or interests that a union brings to the bargaining
table is a benefit of being a dues paying union member.
Q. #3: Can those proposals or interests discriminate against
non-members?
No. Although non-members do not have the right to participate in
the union's internal, deliberative decisional process that
defines the union's bargaining positions or interests, the union
still has a duty not to discriminate against non-members in what
those proposals and interests actually are because the union is
required to represent all employees in the bargaining unit
without discrimination and without regard to union membership.
Q. #4: But what if the agency has delegated to the union, or
bargained away, the final decision on what a condition
of employment will be?
In those circumstances where a union has the final decision on
what a particular condition of employment will be, the union must
treat members and non-members the same in the union's internal
decision-making process.
Q. #5: What is an example of this situation?
For example, if an agency agrees in a contract to allow the union
to establish how seniority will be calculated, the union may not
exclude non-members from a vote to make that decision.
Similarly, even if the union officials make that decision without
involving employees in the decision-making process, the result
may not treat members differently from non-members.
IV.
Q. #1: Can an agency advise an employee that, in the agency's
view, the employee was not properly represented by the
union and that the employee should file an unfair labor
practice charge against the union?
No. An agency must remain neutral in any dispute between an employee and a union, just as an agency must remain neutral in a representation election campaign or internal union election campaigns. Thus, an agency cannot lawfully encourage an employee to file an unfair labor practice charge against a union or offer an evaluation of the merits of an employee's dispute with a union.
Q. #2: If an employee raises duty of fair representation
matters to the agency, how can the agency respond?
Agencies may direct employees to the Authority's Regional Offices
to seek information about the duty of fair representation and
filing procedures. Only if an agency has a practice of providing
charge forms against agencies can the agency provide charge forms
against unions. Similarly, an agency can provide procedural
advice to employees as to how to file a charge against the union
only if an agency has a practice of providing procedural advice
to employees as to how to file a charge against itself.
Q. #3: Can an agency file a duty of fair representation charge
against a union?
Yes. An agency may file an unfair labor practice charge against
a union alleging a violation of DFR. The charging party agency
must be prepared to present evidence in support of the charge.
However, an agency may not interfere with, coerce, or restrain an
employee in exercising the right not to give evidence against the
union. Thus, an agency may not seek out and order, or attempt to
convince, employees to give evidence to support the agency's
charge against the union.
V.
Q. #1: Do employees serving as union representatives on a work
group owe a duty of fair representation to the
bargaining unit?
Yes. When employees are selected to participate in work groups
by the exclusive representative and serve as union
representatives on those work groups, those union representatives
owe a duty of fair representation to the bargaining unit.
Q. #2: Can a union select only union members as
representatives of the union on a work group?
Yes. Although a union is not limited to only selecting union members as representatives for a work group, the union has the right to select its representatives for work groups (when afforded the opportunity to do so), just as the union has the right to select negotiators and stewards for other representational matters. However, those selected representatives must fulfill their duty to represent the entire bargaining unit without discrimination and without regard to union membership.
Q. #3: Can a union representative on a work group be
individually evaluated for that representative's
performance on the work group and either be rewarded or
disciplined based on that evaluation?
No. In an earlier Guidance Memorandum issued by the General
Counsel on August 8, 1995, we advised that union representatives
on a work group may not be evaluated, either positively or
negatively, for their work as union representatives on a work
group, and that, accordingly, those union representatives may not
be rewarded or disciplined based on an evaluation of their
participation on the work group.
Q. #4: Is there any way that a union representative who
participates on a work group may be rewarded if the
union representative is not individually evaluated and
the entire group receives the same recognition?
Some unions and agencies have followed the models discussed in
the earlier Guidance Memorandum and have established work groups
which consist of union representatives selected by the union (who
may be union or non-union members), agency representatives
selected by the agencies, and other bargaining unit employees
selected by the agency without regard to union membership who are
serving on the work group through the assignment of work by
management (and not as union representatives). In these
circumstances, it may be possible for the entire group to receive
a reward based on the group's collective performance, without
reference to the performance of individual members. The Regional
Directors were advised to submit to the General Counsel for case
handling advice any cases involving this situation.
Link to the General Counsel's Guidance Memorandum to the Regional Directors