Section 10 Other Applications of the Duty of Fair Representation

• Library: Employer-Employee Law 2008

Apart from hybrid § 301/DFR claims, a union’s duty of representation extends to other functions a labor organization commonly performs, most notably negotiation of collective bargaining agreements. A union cannot negotiate a labor agreement that arbitrarily or discriminatorily disadvantages some members to the benefit of other members. Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991). For example, a union could not agree to channel women into lower-paying job classifications. See Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 867 (7^th Cir. 1997) (sex-based discrimination by union violates duty of representation and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq.). Nor could it operate a hiring hall in which white union members were referred for work on a schedule giving them preference over African-American members. See Simo v. Union of Needletrades, Indus. & Textile Employees, 322 F.3d 602, 618–19 (9^th Cir. 2003) (racial discrimination as duty of fair representation (DFR) violation); Daniels v. Pipefitters’ Ass’n Local Union No. 597, 945 F.2d 906, 921–22 (7^th Cir. 1991) (racially discriminatory job referral violates union’s DFR). Indeed, the failure of unions to adequately represent African-American members prompted judicial recognition of the DFR in the first place. Were a union to negotiate a contract that discriminates based on protected...