Appeals Court Agrees That Public Sector Union Fulfilled Its Duty Of Representation

A common misperception about the duty of fair representation is that Unions cannot favor one set of bargaining unit employees over another.  The reality, in fact, is the opposite, as illustrated In Anderson v. Commonwealth Employment Relations Board 07-P-1286 (January 23, 2009).

First, here is a brief overview the duty of fair representation.  Labor organizations owe a duty of fair representation, commonly known as “DFR,” to employees in the bargaining unit.  This DFR is imposed on Unions in exchange for their exclusive authority to bargain about terms and conditions of employment on behalf of bargaining unit employees.  The DFR requires a duty of fair representation, not a duty of total or unwavering representation.  Unions are not required to exhaust all resources on trivial grievances that affect few employees, at the expense of more meritorious grievances that may be relevant to most employees. 

Unions can fulfill their duty, generally speaking, by rendering a reasonable and informed decision about a grievance or bargaining issue that is based upon how the Union views the merits of the issue.  Unions violate their duty when they make decisions primarily based upon irrelevant aspects of the individual employee(s).  In other words, the Union may not discriminate against non-Union members or members who do not pay dues or support the Union, and may not act arbitrarily. Beyond those minor limitations, Unions have discretion on how to process grievances and what items to include within a collective bargaining agreement.

            In Anderson v. Commonwealth Employment Relations Board, the Massachusetts Court of Appeals affirmed that Unions may, if not must, favor one set of employees over another during the collective bargaining process.  The contract negotiated by the Boston Firefighters Local 718, International Association of Firefighters, AFL-CIO, CLC provided  additional sick leave to each firefighter on the payroll as of September 2001.  More than 90 firefighters who retired before that date sued Local 718, complaining that the differential treatment for recent retirees violated the duty of fair representation.  The Appeals Court disagreed:

This duty does not require a union to treat each member identically.  A union has room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake.  That fairly generous scope for inaction is exceeded when the union’s conduct is arbitrary, discriminatory, in bad faith, or grossly negligent.

The Court also affirmed that Unions do not necessarily owe a duty of fair representation to retirees.  In conclusion, the Court agreed that the CERB properly dismissed the claim.