Section 9(a) of the National Labor Relations Act grants to designated unions the "exclusive power to represent all employees in a particular bargaining unit." Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 86-87 (1989) (citing 29 U.S.C. § 159(a)). With the power to represent even unaffiliated workers comes the responsibility—"created by the courts"—to "exercise [such] power in their interest and behalf." Simo v. Union of Needletrades, Indus. & Textile Emps., 322 F.3d 602, 610-11 (9th Cir. 2003) (quoting Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 74 (1991)). This "duty of fair representation" is the "obligation to serve the interests of all members [of a bargaining unit] without hostility or discrimination toward any, to exercise . . . discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967). United Brotherhood of Carpenters And Joiners Of America v. Metal Trades Department, AFL-CIO, (9th Cir. 2014).
The duty of fair representation arises where "a union is acting under authority granted by statute or a collective bargaining agreement." Simo, 322 F.3d at 613. It applies both to the negotiation, Air Line Pilots Ass'n, 499 U.S. at 77, and to the administration, Breininger, 493 U.S. at 88, of collective bargaining agreements. But "[d]efinitionally," it "does not apply where the union is not representing the workers in question." Simo, 322 F.3d at 614. "[A] union . . . can be held to represent employees unfairly only in regard to those matters as to which it represents them at all—namely, 'rates of pay, wages, hours . . ., or other conditions of employment.'" Int'l Bhd. of Teamsters, Local No. 310 v. NLRB, 587 F.2d 1176, 1183 (D.C. Cir. 1978) (second omission in original) (quoting 29 U.S.C. § 159(a)). "In other words, the duty of fair representation extends only to matters involving an employee's dealings with his employer and ordinarily does not affect an employee's relationship with the union structure." Kolinske v. Lubbers, 712 F.2d 471, 481 (D.C. Cir. 1983) (citing Bass v. Int'l Bhd. of Boilermakers, 630 F.2d 1058 (5th Cir. 1980)). United Brotherhood Of Carpenters And Joiners Of America v. Metal Trades Department, AFL-CIO, ibid.
When union members sue their employer for breach of contract under section 301 of the LMRA, [Labor Management Relations Act] they must also state a prerequisite claim of breach of their union's duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Thomas v. United Parcel Serv., Inc., 890 F.2d 909, 914-16 (7th Cir. 1989). This is because ordinarily, union members must first use the grievance procedures specified in the CBA rather than directly sue the employer; only when the union has breached its duty to fairly represent the union members in that grievance process may the union members bring a claim against their employer. See, e.g., DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In other words, a section 301 suit is a "hybrid" claim consisting of both a breach-of-fair-representation element and a breach-of-contract element. Id. at 163-65, 103 S.Ct. 2281. The breach-of-fair-representation requirement applies whether or not the plaintiffs name the union as a defendant in their LMRA suit. Yeftich v. Navistar, Inc., 722 F. 3d 911 (7th Cir. 2013).
THIS CASEBOOK contains a selection of 40 U. S. Court of Appeals decisions that analyze and discuss issues surrounding a labor union's duty of fair representation. The selection of decisions spans from 2010 to the date of publication.