I. COURSE OBJECTIVES
Review the statutory and case law standards governing NTEU‟s duty of fair representation
(DFR) to employees we represent;
Explore the parameters of that duty in the context of our representation of unit employees;
Discuss how we can ask and encourage non-members to join in the context of our
representational activities, without violating our DFR;
Discuss how we respond to claimed violations of our DFR.
II. STATUTORY and CASE LAW STANDARDS
Each employee shall have the right to form, join, or assist a labor organization, or to
refrain from any such activity, freely and without fear of penalty or reprisal, and each
employee shall be protected in the exercise of such right.
5 USC Section 7102
…An exclusive representative is responsible for representing the interests of all
employees in the unit it represents without discrimination and without regard to labor
organization membership.
5 USC Section 7114(a)(1)
For the purpose of this chapter, it shall be an unfair labor practice for a labor organization
– to interfere with, restrain, or coerce any employee in the exercise by the employee of
any right under this chapter.
5 USC Section 7116(b)(1)
If discrimination based on membership or another invidious factor (e.g., race) is not involved,
courts and the Federal Labor Relations Authority have held that unions must not act arbitrarily or
in bad faith when functioning as the exclusive representative. Vaca v. Sipes, 386 U.S. 171; NFFE
Local 1453, 23 FLRA 92.
After quickly reviewing the course objectives, review the statutory standards. Point out that our
DFR arises from our status as the exclusive representative. Because employees have no other
choice of representative, the law imposes a DFR on unions. And because the DFR arises from
our exclusive status, it is co-extensive with that status. If we are not acting as an exclusive
representative, the duty doesn’t apply.
1
In the federal sector, the DFR usually arises in two situations: (1) claims that we discriminated
against or coerced non-members in our representation decisions and statements or (2) the type
and quality of the representation we provide (the arbitrary/bad faith standard).
This class will explore the contours of our DFR in both situations by working through a series of
short examples. You can have the class work through all or a portion of the examples at their
tables, and then discuss as a group; you can work through them all as a class, example by
example; or you can do both.
III. MEMBERSHIP CONSIDERATIONS
Review the following examples and decide whether the union or union representative has
violated its duty of fair representation. If you think a violation was committed, consider
what could have been done differently to achieve the union’s objective – sending the
message that all unit employees should join:
Example 1: A newly hired employee is greeted by her union steward the first day on the job.
The steward tells her that “members get priority around here”, while asking her to join.
Arguably an (b)(1) violation because it could be construed as coercing the employee to join by
implying that she won’t get representation or will get second class representation if she doesn’t
join. The test is the same as for (a)(1) violations –the objective, reasonable person test. Don’t
make statements like this –and definitely don’t do it in writing.
What to do differently? Point out specific things that unions lawfully give members but not non-
members – representation when there is a representation alternative; the right to vote for union
officers; voting on contract ratification; member benefits; appointment as union reps to teams;
attending union sponsored social events; and other things we’ll discuss.
Example 2: A union steward is approached by a non-member who wants the steward to look at
his appraisal and see if it warrants a grievance. The steward says, “You‟re not a member are
you? Would you like to join?”
Although it could be argued to the contrary, not a violation. It would be if representation were
conditioned joining. (Some might point out that we’re not to solicit on official time.) Ask the
class what the steward should do when if the employee declines or says ―you still have to
represent me.‖ Answer: the steward should then discuss the appraisal, but there are things the
steward can do to makes sure the employee isn’t putting it all on the steward:
-ask what he’s unhappy about and why
-ask if there are any particular provisions of the contract he thinks were violated, perhaps have
him review the appraisal article.
--ask him to get his drop file for the steward to review
--if the grievance ―lacks merit‖ refuse to pursue it
--if it has merit, pursue it, and while continuing to ask the employee to join
Bottom line, we should never help a non-member w/o asking them to join.
2
Example 3: A non-member receives a notice of proposed adverse action. The chapter refuses to
represent him at his oral reply, even though he offers to join, because they don‟t want to waste
resources on a “death bed convert.” The non-member hires his own attorney to do his reply.
The agency issues a final decision imposing the adverse action. The non-member goes back to
the chapter and asks that his case be taken to arbitration. He‟s told to “get lost” because he can
appeal it to the MSPB.
Case law establishes that we can refuse to represent non-members (or members, too, for that
matter) at oral replies because they have a statutory and regulatory right to their own, personal
representative in such matters (unlike the grievance procedure).
Although he has a right to appeal to the MSPB, and we have no obligation to represent non-
members in that forum, we cannot simply refuse to consider his case for arbitration. We are the
exclusive gatekeeper to that forum alternative and therefore cannot use his non-membership as a
basis for considering whether to take the case. The chapter should have referred the matter to
the Field Office who would assess its merits.
Example 4: The chapter settles a mass grievance over the agency‟s unilateral termination of a
practice of granting administrative leave for certain activities (attending support groups,
attending “Toastmasters”, etc.) The settlement provides that the agency will grant affected
employees retroactive administrative leave up to a sum total, provided the union identifies which
employees were harmed and therefore entitled to the leave. The chapter solicits it members in
the affected area, and those members who submit claims each get an equal share of the total
amount the agency is willing to authorize. When a non-member finds out about the settlement
and asks about getting his share, he‟s told, too bad, it‟s all gone.
A violation. Our DFR applies to grievance settlements. The first mistake was to enter a
settlement and take sole responsibility for distributing it equitably. We should always look at
having the agency identifying who was impaced and establish a non-discriminatory payout
formula in the settlement.
Having agreed to take responsibility for distributing the settlement, the chapter had an
obligation to exercise reasonable diligence in identifying who was harmed so that they received
their fair share, including the non-members. Of course, if non-members didn’t respond or come
forward when given the opportunity, they would not have a DFR claim.
Change the facts a bit to provide an alternative approach. Ask what if the settlement established
a claims process, required the agency to identify and notify potential claimants, and required
them to submit their claims through the union so we could ensure they get paid. We use that
opportunity to ask the non-member claimants to join. That is permissible, as long as we don’t
embargo their claims.
Example 5: The chapter settles a mass grievance and negotiates a provision in the settlement
agreement requiring that the agency provide a list of settlement beneficiaries, how much each
was paid, and notification of when the payment was made. The rationale for the provision is to
allow the union to follow up with each grievant to ensure that they were paid. When the union
3
gets the list, the union matches it up with its membership list, identifies the non-members, and
has stewards follow up with them about joining.
Perfectly o.k. We had a legitimate reason for getting the names of the beneficiaries, unrelated to
their membership status. The right to be a non-member doesn’t include a right not to be asked to
join when the union does something for you.
Example 6: Same facts as example 5. After the payouts, the chapter publishes the non-member
recipients‟ names and the amounts received in the chapter newsletter.
Arguably coercive. Only the non-member names were published, and a case could be made that
a reasonable person would view this as the union using its status as the exclusive rep to get and
publish information about non-members to embarrass them. In the long-run, such a tactic, even
if legal, may not have the desired effect of embarrassing the non-members into joining. It could
harden their feelings against the union.
How to get around this problem? It may not be as effective, but the chapter could publish the
names of all beneficiaries. Perhaps the members would know who the non-members are. That
type of publicity could also embarrass the members and back fire.
Example 7: For upcoming term bargaining, the chapter conducts member-only surveys and
lunch „n learns on their priorities. Non-members claim that they should also be given a say into
what is in the contract.
FLRA case law draws a distinction between situations where the union doesn’t have the
authority to establish a condition of employment and situations where it does. Since formulating
proposals does equate to establishing working conditions, limiting input to members only is
permissible, similar to conducting ratification votes.
But if the CBA gives the union the authority to determine a condition of employment, it cannot
discriminate in soliciting employees’ views on how to exercise that authority. For example, in
NFFE Local 1827, 49 FLRA 738, the union was given the discretion to determine a seniority
formula. In deciding what the formula should be, it polled members only and violated its DFR.
Example 8: Pursuant to a partnering agreement established under the Labor-Management
forums Executive Order, the agency and the union established a workgroup consisting of
management and bargaining unit employees to identify work processes to target for
improvement. The union appointed the b.u. participants and, consistent with its policy, only
appointed members. The agency head was o impressed with the group‟s work that she gave each
group member a non-monetary award, documentation of which was placed in each recipient‟s
personnel file.
It is the union’s prerogative to appoint members only to serve as union representatives,
including on workgroups. Case law holds that those acting the capacity of a union
representative cannot be disciplined for their actions as such (absent flagrant misconduct) or
evaluated on their actions as a representative (positively or negatively). Although the FLRA has
not squarely addressed the question, the former FLRA GC has reasoned by extension that union
4
representatives cannot be evaluated or rewarded for their participation in workgroups when
their status as workgroup members was, at least in part, a result of their union membership.
The fact that the award recognized the group as a whole and was non-monetary, without any
apparent tangible job-related benefits, could be a basis for arguing that the award was not
unlawful. Putting the award documentation into the group members’ personnel files suggest
there could be some future job-related benefit from participation in the group.
Discuss with the class the intangible benefits of employees serving on such groups (and therefore
being members) even if they cannot be formally evaluated on or rewarded for their work. E.g.,
they can impress mgmt officials on the group with their skills, which can have career enhancing
benefits.
IV. REPRESENTATION DECISIONS AND ACTIONS
Now, let’s turn from issues concerning treatment based on union membership to a few
situations involving our representation obligations in general. In which of the following
situations did the union act “arbitrarily” or in “bad faith”, in violation of its DFR. If the
DFR was violated, what could have been done to avoid it?
Example 9: An employee receives an oral admonishment confirmed in writing. The steward‟s
investigation reveals that it the cited reasons for the admonishment were not accurate and that
others who engaged in similar conduct received no formal discipline. The chapter grieves that
admonishment but tells the grievant it will not refer the matter to arbitration if the grievance is
unsuccessful because, as a matter of policy, the union doesn‟t arbitrate admonishments or
reprimands.
Not a violation. Factors beyond the merits of a case can influence decisions about whether and
how far to pursue a grievance: costs and the desire to conserve union resources for higher
priorities; concerns about setting a bad precedent; a favorable result in the individual case may
not be consistent with the overall best interests of unit employees, etc., As long as those factors
are reasonably and consistently applied, the union does not violate its DFR.
Point out that generally, the merits alone will drive our decisions about cases we will arbitrate.
A chapter’s lack of funds to pay their half share alone will not lead to rejection of an otherwise
meritorious case, and therefore should not be a deterrent. We can put the chapter on a
repayment plan, if necessary. That’s the point of a union—we use our collective resources to
protect and advance employees’ interest, on an individual level, the chapter level, and the
national level.
Example 10: A chapter steward approaches an employee and tells him, “Dude, I blew it. The
deadline for appealing your appraisal grievance was yesterday and I just spaced on it. Sorry
about that. We‟ll get „em next year.”
Probably not a violation if it was due to mere negligence. Negligence does not equal a DFR
violation –there must be arbitrary, deliberate or bad faith conduct. But see, eg., IAM and
Aerospace Workers, Local 39, 24 FLRA 352, where the union was found to have violated its
DFR by misleading the employee into believing it would file a grievance and then failing to do
5
so, and was ordered to reimburse the employee for lost wages if the agency refused to agree to
hear it. It appears, however, that the failure to file was intentional.
Likewise, failing to raise a potentially meritorious issue in grievance, if inadvertent, would not
amount to a DFR violation.
The point is –we don’t want to test the boundaries between negligent and arbitrary conduct. We
need to keep track of deadlines, draft thorough grievances, and make cogent presentations. And
most importantly, we need to communicate with grievants about the status of their grievances.
Failing do to do so can lead to the next section.
V. FORMAL DFR CLAIMS
How are DFR claims adjudicated? And what is our potential exposure? The following
examples answer these and related questions.
Example 11: The “dude” in example 10 isn‟t too keen on simply waiting to “get „em next year.”
He tells the steward, “I‟m calling my lawyer. I‟m taking the union to court or I‟ll file an EEO
complaint. I think you didn‟t pay attention because I‟m one of those long time members who
complain about how you young people are running the chapter.”
An employee’s sole recourse for pursuing a DFR claim is by filing a ULP charge with the FLRA.
EEO complaints filed by employees, even those who allege a form of illegal discrimination, like
age or gender, will ultimately be dismissed. An individual cannot file a federal district court
action, as in the private sector, or a grievance either.
Discuss with the class whether we should we tell the dude that, or just let him go on his merry
way, hoping the 6 months to file the charge will expire.
Example 12: The “dude” goes to the local LR specialist. The LR specialist tells him that the
union has violated its DFR owed to him and encourages him to file a ULP charge against the
union.
An agency has an obligation to remain neutral in a dispute between an employee and the
employee’s union, just as it must remain neutral in an election campaign. By encouraging the
employee to file a ULP charge, the agency violates (a)(1) by coercing the employee in the
exercise of the employee’s rights. It would not be a violation to merely refer the employee to the
FLRA and provide relevant contact information.
The former FLRA GC was of the view that an agency can file a ULP charge alleging a union
violated its DFR. But it better be able to support the charge with its own evidence, because by
naming employees as witnesses, it risks coercing those employees in violation of their section
7102 rights.
Example 13: The “dude” files a ULP charge. A copy is served on the chapter president. The
chapter president wonders, “Now what?” and contacts the chapter treasurer to see how much
money the chapter has to cover its liability.
6
Explain the ULP charge process. Point out that chapters served w/ charges should immediately
contact their Field Office. We will enter an appearance and represent the chapter and NTEU
before the FLRA. We’re successful in getting 99.9% of DFR charges dismissed. If a complaint
gets issued or is about to be issued, we’ll work to settle it in way that causes the least harm to the
chapter.
As for remedies the FLRA GC could pursue in DFR cases:
In (b)(1) cases based on coercive statements, without more, a posting –just like agencies.
If we violated our DFR and the employee was precluded from pursuing a grievance that had
potential monetary relief, it is not clear what the current GC would pursue. At a minimum, we
would be asked to ask the agency to allow the grievance to be processed. If the agency refuses,
there are two schools of thought. The NLRB puts the burden on the union to prove that the
grievance would not have been successful –not an easy burden to carry. The FLRA took that
approach in the IAM case, cited in example 10. But in the 1997 DFR Guidance put out by the
then FLRA GC, the GC said the GC should carry the burden of proving the merits of the
underlying grievance, reasoning that the burden should be on the charging party, just as in cases
when the union seeks specific remedies in charges filed against agencies.
VI. REVIEW AND WRAP-UP
Conclude by reviewing DFR standards for two types of DFR cases ( discrimination based on
membership; arbitrary/bad faith representation). Re-emphasize that the best way to avoid DFR
charges is to keep track of timelines, be as thorough as possible in preparing and pursuing
grievances, document the reasons for decisions not to pursue grievances, communicate regularly
with the grievant, and consult with the Field Office.
7