International Encyclopedia of Public Policy and Administration - Vol. 2

By Jay M. Shafritz | Go to book overview

by the state for public use without compensation, forbidding the manufacturing of cigars in tenement houses, requiring every member of a firm of plumbers to be a registered plumber, and limiting hours of labor for employees of bakers, for example.

Reviewing the body of applications, interpretations, and evaluations of due process reminds us that each generation must grapple anew with determining the meaning of this seemingly simple yet deceptively complex phrase. Although a core set of meanings can be associated with due process, a measure of vagueness and uncertainty remains. The wisdom of this inexactness is that within the shadows of doubt each new generation is allowed some measure of flexibility in defining and applying due process relative to the changing circumstances, situations, and contexts which define their era, collectively, and their lives personally.

CHARLES E. MARSKE


BIBLIOGRAPHY

Schwartz, Bernard, 1974. The Law in America: A History. New York: McGraw-Hill.

Warren, Kenneth, 1996. Administrative Law in the Political System. 3d ed. Englewood Cliffs, N.J.: Prentice Hall.

DUTY OF FAIR REPRESENTATION. The responsibility of a union, as exclusive representative and bargaining agent for members of a bargaining unit, to represent each member fairly, honestly, and in good faith, even if the individual is not a dues-paying member of the union. The duty of fair representation is provided for in collective bargaining contracts or in state labor law. Its origins may be traced to problems with discrimination against African Americans by labor unions in the private sector.

Standards for determining the duty of fair representation were developed in the federal courts in the private sector and applied directly to public employment with few modifications. It was first affirmed by the U.S. Supreme Court in the 1944 case of Steele v. Louisville and N.R.R, in an interpretation of the Railway Labor Act. This decision was later extended to all unions having exclusive representation under the Labor Management Relations Act. In one of the most frequently cited cases, Vaca v. Sipes ( 1967), the Supreme Court ruled that a union violates its duty of fair representation when it decides not to arbitrate a grievance only if it acts in an arbitrary or discriminatory fashion or in bad faith. A subsequent case, however ( Hines v. Anchor Motor Freight, 1976), resulted in a decision that the "perfunctory" processing of a grievance may violate the duty of fair representation. The union is legally responsible for exercising a minimal level of care in meeting time limits and investigating the evidence submitted by the grievant, and should not act in a superficial or disinterested manner. Grievances are dropped by the union when, after a thorough investigation, it is determined that the case has no merit. If the union does not properly exercise its duty, it may be charged with an unfair labor practice or a civil suit for breach of contract.

The U.S. Supreme Court ruling in Bowen v. United States Postal Service ( 1983) that a federal postal workers union failed to fulfill its duty of fair representation nearly bankrupted the American Postal Workers Union. The employee-grievant, who was fired illegally from his job over an alleged altercation with a fellow worker, was awarded financial damages from both his employer and the union. The union's liability began when final resolution of the grievance would have been obtained if the union had fairly represented him. This liability included back wages. An important result of the Bowen case is that unions now tend to err on the side of caution, often carrying meritless grievances all the way to final arbitration, at substantial cost to the union and employer in terms of time and money. Ironically, however, a 1989 Supreme Court ruling excluded other (nonpostal) federal employee unions from damages for breach of the duty of fair representation, because an administrative remedy is available to them (the Federal Labor Relations Authority).

In sum, the duty of fair representation constitutes a significant burden on the labor organization. The union must determine the merits of a grievance, based on language of the contract and the apparent facts of the case, and adequately represent the grievant in carrying forward the case. If it fails in exercising its obligation, the union may be liable for actual (but not punitive) damages.

RICHARD C. KEARNEY


BIBLIOGRAPHY

Clyde W. Summers, 1985. Measuring the Union's Duty to the Individual: An Analytical Framework. In Jean T. McKelvey , ed., The Changing Law of Fair Representation. Ithaca, NY: ILR Press, Cornell University.

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