When an employer recognizes a labor union as the employees' representative and reaches a collective bargaining agreement with the union, the union takes on certain responsibilities by virtue of its representative capacity. One of those duties is the duty of fair representation of its union members. Although the Labor Relations Management Act (LMRA) contains no provision imposing upon labor unions a duty of fair representation, the United States Supreme Court first held that such a duty existed in 1944. In that case, the Supreme Court concluded that a collective bargaining agreement that provided that no more than a certain number of black employees could be hired for certain jobs was unlawful because a union's right of exclusive representation carried with it an obligation to exercise that right in good faith and without discrimination. In addition, the National Labor Relations Board has ruled that a breach of the duty of fair representation is an unfair labor practice under the LMRA. Redress for a breach of the duty of fair representation may be sought in the courts by way of a lawsuit.
Many claims of breach of the duty of fair representation stem from a labor union's refusal to pursue a grievance on behalf of a union member. Despite the prohibition of invidious or hostile discrimination in representing its members, labor unions have significant leeway in the way they represent their members, including the handling of grievances. A union has the discretion to determine whether a grievance of one of its members is in fact meritorious or not. Dissatisfied union members whose unions have decided adversely to the members as to the merit of their grievances may bring lawsuits against the union for breach of the duty of fair representation.
The United States Supreme Court has established a number of principles with regard to a union's duty of fair representation. A union is to consider each grievance on its own merits based upon objective considerations. A union is in breach of the duty of fair representation only if its decision in a union member's case is arbitrary, discriminatory or made in bad faith. Negligence on the part of a union in handling a member's grievance does not constitute a breach of the union's duty of fair representation; however, the union's providing only perfunctory treatment of a grievance constitutes a lack of good faith and is a breach.
The remedy for a breach of the duty of fair representation is compensatory damages. Therefore, the aggrieved union member must first establish that there was in fact a breach of duty, in the case of a grievance, by showing that in fact the grievance was meritorious. If that can be established, the union member will be allowed to demonstrate that he or she suffered damages as a result of the union's failure to prosecute the grievance. Punitive damages against the union are not available in an action for breach of the duty of fair representation.
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