Talk:Duty of fair representation

Post mortem on the previous version

Another example of just how wrong wikipedia articles can be. The previous version stated:

Under the Taft-Hartley Act and subsequent amendments, unions were required to be held to standards of fair behavior somewhat analogous to those imposed on employers by the Wagner Act (National Labor Relations Act). One of the requirements, later extended by the National Labor Relations Board and the courts, was that unions represent all of their members fairly and impartially. One of the consequences of this requirement was that union funds be freely and fairly accounted for; prior to this there had been much financial secrecy at many unions and the existence of "slush funds" that were used at the discretion of the leadership of the union, sometimes for illegal purposes and sometimes to aggrandize themselves. While such practices were hardly totally ended, the requirement of open accounting made such practices explicitly illegal in and of themselves and as a consequence, more difficult for union leaders to engage in.

Almost every statement in this paragraph is wrong. The Taft-Hartley Act limited unions' ability to enter into closed shop agreements and to impose excessive initiation fees, but it did not impose any standards of fair behavior on unions, at least not as an express statutory command or prohibition. It took twenty-five years after passage of the Taft-Hartley amendments for the NLRB to even recognize that violation of the duty of fair representation would be a violation of the NLRA, which the NLRB could remedy (sort of, sometimes and to the extent it found a violation) through its administrative procedures for redressing unfair labor practices.

The action, however, has always been in the courts, not before the NLRB. The duty was first recognized by the courts in cases under the Railway Labor Act before the passage of the Taft-Hartley amendments in 1947. The courts extended those principles to unions covered by the NLRA in the earlyy 1950s, long before the NLRB got around to recognizing a violation of the Act. Claiming that the duty somehow resulted from the passage of the Taft-Hartley Act is completely wrong.

The same is true for the statement that Taft-Hartley and subsequent amendments held unions "to standards of fair behavior somewhat analogous to those imposed on employers by the Wagner Act." The Wagner Act, which the Taft-Hartley Act amended, does not impose any "standards of fair behavior" on employers. On the contrary, it only requires that they refrain from certain narrowly specified types of misconduct: firing or otherwise disciplining employees in retaliation for their union activities or participation in NLRB proceedings, engaging in surveillance of employees' union activities, limiting employees' ability to communicate with each other about union activities, establishing company unions, threatening employees with reprisals for engaging in union activities or refusing to bargain with a union that has either been certified or recognized as the representative of its employees and so forth. But under the NLRA an employer can fire employees for no reason at all, or fire an employee for something that it allows other employees to get away with, or fire an employee for petty reasons or reasons that may appear unfair, so long as it does not fire the employee for a specifically unlawful reason, i.e., his or her union activities. If employees want to hold employers to any more general standard of fairness, then they need to choose a union and bargain for a collective bargaining agreement that requires just cause for discipline and seniority or other restrictions on the employer's power to lay off, transfer or promote employees.

The duty of fair representation is analogous, only in the roughest sense, to the employer's duty not to discriminate against employees on the basis of their union activities to the extent that it bars unions from acting discriminatorily. It goes far beyond that legal prohibition in some senses, however: while it would be a violation of the duty of fair representation for a union to refuse to process a grievance because the union official had a deep personal dislike for that union member (he was the union rep's brother-in-law or he rooted for the Yankees instead of the Mets or he was a Republican rather than a Democrat), it would not be a violation of the National Labor Relations Act for the employer to fire an employee for any of those reasons. Saying that the duty of fair representation is "somewhat analogous" to this imaginary duty of "fair treatment" by the employer is about as accurate as saying that it is "somewhat analogous" to the federal government's obligation not to interfere with the freedom of speech or to impose cruel and unusual punishments.

The duty of fair representatio has next to nothing to do with accounting for union funds, other than indirectly as a consequence of the courts' extension of the duty of fair representation to cover the amount of dues that a union can charge non-members covered by a union security clause. That is, however, only a relatively recent development and only true in that limited context.

The old version not only overgeneralizes on this point but misleads the reader. Use of union funds and financial secrecy are dealt with by the LMRDA, which limits unions' power to raise dues, requires financial reports and imposes a fiduciary duty on union officers in their handling of union funds. Those areas are not regulated by the duty of fair representation. As for "slush funds," to the extent that the original version was referring to John L. Lewis' use of pension funds as a "war chest" to finance strikes against coal mining companies in the 1940s, those issues were dealt with through passage of Section 302 of the LMRA, part of the package of Taft-Hartley amendments, not by the duty of fair representation.

The reference to use of funds "at the discretion of the leadership of the union" is likewise misleading: even after passage of the LMRDA, the elected leadership of the union is allowed great discretion in spending funds, so long as they do not use them for expressly illegal purposes or for expenses that have not been authorized by the union's by-laws. As an example, unions can pay their leaders whatever the by-laws allow, so long as they go through whatever procedures are required by those by-laws to authorize such payments. While that may appear to be "aggrandizing" the leadership, it is not unlawful.

In any case, this is an issue covered by the LMRDA's fiduciary duty provisions, not by the duty of fair representation. The duty of fair representation does not tell unions what they can spend their funds doing: if they want to use it for legislative lobbying instead of organizing campaigns, or to provide for picnics rather than strike benefits, that is the union's decision. The only restriction is that some expenses can be included in the core fee charged to non-members covered by a union security clause and some cannot.

Mary McCarthy once said about Lillian Hellman: "Every word she said is a lie, including 'a' and "the'." The previous version of this article looks pretty good by that standard, since most of the conjunctions and all of the punctuation appear to be correct.

Other countries

It might be an idea to generalize the article a bit to other countries. Having recently filed a Duty of fair representation complaint against my union, I can say that the components are the same in Canada. The main differences seem to be that here, the duty of fair representation is part of legislation and adjudicated by provincial (or federal, for the minority of unions under federal jurisdiction) labour relations boards. Such complaints have very low success rates (typically less than 2%). I am guessing that other common law countries have similar duties with similar definitions for arbitrary, discriminatory and bad faith representation. Derek Pyne2 (talk) 22:20, 19 June 2019 (UTC)