1. Because of the exclusivity of the union's representative status where it is certified for a craft or class, the courts have held that the employees represented are owed a "duty of fair representation." The duty applies whether the employees belong to the union or not. Where there is a union shop or agency provision in the contract, of course, payment is required. Where rail employees exercise their statutory right to satisfy their union shop obligation by belonging to BLE, the UTU still owes them the duty of fair representation if they are employed in a craft UTU represents.
2. The courts have made it clear that the union does not have a duty to take every case—not even every discharge case—to arbitration. It does not have a duty to do "everything possible." It does not have the duty to supply excellent, superior or inspired representation to a grievant. It does have the duty to evaluate a grievance, unless the grievance is, on its face value, worthless or improper. If it concludes that a grievance should not be progressed, it should explain why to the aggrieved employee. While the union has no duty to "fight" every case, it does have certain duties, which may make it legally responsible. Those duties are to be honest, to act in good faith, to be non-discriminatory, and to have a rational basis for making a decision. This is the duty of "fair representation" the union owes to all those in the crafts it represents.
3. The union is accorded considerable discretion in the handling of grievances—in other words, the union is permitted "a wide range of reasonableness" in deciding whether to progress and how to progress a grievance.
4. The latitude afforded a union under the law, however, is "subject always to complete good faith and honesty of purpose in the exercise of its discretion."
5. No individual member has an absolute right to insist that his or her claim or grievance be pursued through any particular step of the procedure. A union may screen claims and grievances, and press only those it concludes should be pursued in terms of benefit to the -craft as a whole, and take into account such matters as time, expenses and other legitimate considerations.
6. A union may not drop a claim or grievance based on hostility, discrimination or arbitrariness. It may not arbitrarily ignore a meritous grievance, or investigate or handle it in a perfunctory manner—that is, by merely going through the motions.
7. A union may abandon a claim or grievance as long as there is a rational basis for doing so. Mere whim, or no reason at all, will not support a contention that the union official merely exercised judgment.
A. The following are some examples of conduct which might lead to an allegation the union breached the duty of fair representation:
3) Discrimination—An all-male local committee decides not to appeal a meritous discharge grievance of a female within the local that is hostile to the incumbent administration.
2) Arbitrariness—A General Chairperson or a Local Chairperson withdraws a meritous grievance but, when asked why, can offer no reason.
3) Hostility—The General Chairperson or Local Chairperson has a personal grudge against the grievant and withdraws a meritous claim or grievance.
4) Dishonesty—The General Chairperson or Local Chairperson misleads the grievant, or lies to him or her.
B. The following are examples of conduct which do not violate the union's duty of fair representation:
1) The Local Chairperson honestly, but mistakenly, believes the company has not violated the agreement, as he or she interprets it, and withdraws the grievance.
2) In a merger, a seniority arrangement is agreed to that is in accord with union and industry practices in light of apparently applicable law and the facts as the union sees them, although a number of employees are adversely affected.
8. Courts generally require the exhaustion of all effective internal union remedies before legal action can properly be taken by a grievant. In order to rely on a defense of non-exhaustion of such remedies, the union must take care not to mislead the member or place obstacles in the way so that the internal remedy can be said to be meaningless.
9. In these litigious times, the union must strive to avoid even the appearance of bad faith, hostility or arbitrary conduct.
10. Obviously, the Local Chairperson should recognize the difference between minor and serious grievances. A reprimand or short actual suspension is less likely to lead to litigation than a discharge or the loss of seniority.
11. In the case of a discharge, the presumption must be in favor of appealing and only compelling facts involving the actual case should excuse an appeal. A union representative is, first and foremost, an advocate. Where there are factual disputes, the Local Chairperson who represents the grievant should accept that person's version of the facts, if credible.
12. Remember, the five W's — "Who? What? Where? When? Why?" The Local Chairperson should remember to get and record this basic information promptly. We all need to continually keep in mind the necessity of early and thorough investigation and recording of these kinds of basics in every grievance that is being progressed.
The Duty of Fair Representation in Grievance Handling
1. Timing in investigations—Especially in important cases, such as possible discharges, the five W's should be investigated promptly, and notations and evidence should be kept on file. It is important not only that we conduct a good investigation, but also that we can prove we did and refute the carrier's charges.
2. Non-grievance-filed situation—Assuming, in a serious matter such as one involving a discharge, the Local Chairperson decides he or she can't win and won't proceed because, even though the matter is serious, in his or her judgment, there is no valid, winnable grievance, he or she should try to convince the member. The Local Chairperson should make a written record of the reasons why he or she didn't file the grievance and send it to the person, by certified mail, if feasible.
In unusual cases where there is a discharge, and the Local Chairperson is unable to convince the member that his or her discharge should not be appealed, then a grievance should be filed at the grievant's insistence, but the Local Chairperson should always try to avoid filing phony grievances.
3. The settlement of grievances—Of course, the union has the right to settle claims and grievances as it sees fit, when it sees fit. What should be avoided are any appearances, however inaccurate, that one grievant got a better settlement than another because of who the parties were. Moreover, there should be no wholesale claim or grievance handling, or horse trading whereby one member is "sacrificed" in order to save others, nor should there be even the appearance of such action.
Multiple grievances should not be filed against company action, attacking it on a number of grounds, some spurious, with the idea of getting a settlement by offering to withdraw some of the grievances.
Of course, when a grievance is settled, the local and claimant should be notified, in writing, by certified mail, if feasible.
4. Where a claim or grievance is dropped or settled—When it is decided not to press further a very serious matter, such as one involving a large claim or discharge, Local Chairpersons should:
a. Make sure they have all the facts; and
b. Make written notice of the reasons for dropping the matter or settling it, and provide the grievant copy of it.
5. Advice to members—Of course, the Local Chairperson should never mislead, confuse or refuse to inform a dissatisfied member of his or her internal union appeal rights and remedies, or their rights under the contract or law.
Prompt notification to the member, in writing, of any disposition of the claim or grievance should be given as a matter of course, regardless of the seriousness of the claim.
Attitudes and Attributes of a Successful Local Chairperson
Simply stated, a successful Local Chairperson is one who can most effectively protect the schedule labor agreement and represent the interests of the membership. Accomplishing the most for the membership is the goal. However, the task is not easy and there are no short cuts.
What are the characteristics of a successful Local Chairperson? There appear to be a number of interlocking factors that make success possible.
Successful Local Chairpersons must believe the labor movement is essential and beneficial to working men and women, and further, believe he or she is contributing personally to the benefits enjoyed by the members.
The beliefs may be motivated by ambition, personal satisfaction in accomplishment, desire for respect of fellow workers; they may be prompted by opposition to the carrier's attitudes and policies; or they may come from a combination of these factors and others. It is this overwhelming motivation and interest in his/her work that characterizes the successful Local Chairperson in handling time claims and grievances, and then following through aggressively on the cases.
These beliefs are also most important during the training years of any Local Chairperson. During this time they are faced with many discouragements making them wonder if they are adequate for the job, if their efforts are appreciated and if the small financial reward can ever compensate for the time and effort involved in representing the membership.
Experience is an important attribute in accomplishing any task. This is especially true in grievance work for two reasons: (1) most rail workers' training has not prepared them for the personal relationship of negotiations with the carrier and the leadership of fellow workers; and, (2) history and application of the agreements and work rules are material which must be obtained from multiple sources. Once this knowledge and material are obtained, the Local Chairperson's responsibilities no longer seem insurmountable.
With experience and knowledge, the Local Chairperson is capable of analyzing the consequences of each grievance, identifying the position of the carrier, in addition to adopting his/her own proper position, concluding each case with beneficial, not inferior, results. This ability does not require formal education beyond experience and dedication. Rather than formal education, the ability to think clearly and to analyze a problem, arriving at a proper decision that will be continuously upheld, is required for the job.
Additionally, an understanding of contract principles, knowledge of the applicable schedule agreements, knowledge of the Railway Labor Act, and familiarity with procedures for handling time claims and grievances from inception to final appeal are important skills that require training.
A successful Local Chairperson is scrupulously proper and fair in his/her dealings with members and with carrier representatives. A Local Chairperson who conducts himself/herself in this manner will earn the respect of both the members and carrier representatives. Once a reputation for honesty and fairness has been established, the Local Chairperson will be able to accomplish more because he/she will be preceded by such reputation. A solid reputation for dealing with the facts will aid in settlements of time claims and grievances on the local level. The carrier representatives will know the opinions and positions of the Local Chairperson have proven correct in the past and if proper weight is not given the Local Chairperson's views, handling of cases on appeal may discredit the carrier representative.