As a labor union in Ohio, one of your core responsibilities is to fairly represent all members of the bargaining unit, regardless of their union membership status or personal relationships with union leadership. This obligation, known as the duty of fair representation, is a legal principle established through state and federal case law as well as statutes that applies to all union activities, including collective bargaining, grievance processing, and contract enforcement.

At its core, the duty of fair representation requires unions to avoid actions that are arbitrary, discriminatory, or in bad faith towards any bargaining unit member. This means that unions must strive to represent all members equally and make decisions based on objective, legitimate reasons rather than personal biases or political considerations.

To develop a deep understanding of the duty of fair representation, it's helpful to examine some concrete examples of what may or may not constitute a breach of this important obligation:

Imagine a scenario where a union declines to file a grievance on behalf of a member who has openly criticized union leadership. This action would raise serious concerns under the duty of fair representation, as it suggests the union is retaliating against the member and discriminating on the basis of their expressed views. A core purpose of the duty of fair representation is to protect members' right to dissent and ensure the union acts in the collective interest, not the interests of individual leaders.

In contrast, consider a situation where a union decides not to pursue a grievance because, after a thorough investigation, it concludes the claim lacks merit or has little chance of success. As long as the union can demonstrate its decision was based on a careful, good-faith assessment of the facts and relevant contract language, this would generally not be seen as a violation of the duty of fair representation. The key principle is that unions have significant latitude to make strategic decisions about which grievances to pursue based on their judgment of the broader interests of the bargaining unit.

Another illustrative example might involve a union negotiating a contract that appears to overwhelmingly benefit one faction of workers at the expense of another. For instance, if a union agrees to a wage structure that provides generous increases for senior members while freezing or cutting pay for newer hires, this could potentially be viewed as a breach of the duty of fair representation. The union would need to be prepared to justify its decision as fair and reasonable in light of legitimate factors like industry standards, the employer's financial situation, and the overall package of negotiated benefits.

To further solidify understanding, let's consider the duty of fair representation in the context of a union's internal processes and communication with members. As a union, you have an obligation to maintain clear, transparent procedures for matters like grievance handling, officer elections, and ratification of collective bargaining agreements. These processes must be applied consistently and avoid any appearance of favoritism or impropriety.

For example, if a union were to disregard its established timelines for grievance filing or selectively enforce eligibility rules for officer candidates, this could give rise to duty of fair representation complaints. Similarly, if a union fails to provide members with adequate notice and information about important decisions, like the details of a proposed contract, this could be seen as a failure to fairly represent members' interests.

As you can see, the duty of fair representation is a multifaceted and complex legal obligation that requires unions to continually balance the needs of individual members with the collective interests of the bargaining unit. By maintaining clear, even-handed processes and making principled decisions based on objective factors, unions can minimize their legal risks and build trust with the workers they represent.

But what happens when a member believes their union has fallen short of this duty? In Ohio, the primary recourse is to file an unfair labor practice (ULP) charge with the State Employment Relations Board (SERB).

The ULP process begins with the filing of a charge, which must be submitted within 90 days of when the member knew or should have known of the alleged violation. This relatively short timeline underscores the importance of unions communicating clearly with members and maintaining accurate records of grievance proceedings and other key decisions.

Once a charge is filed, SERB will launch an investigation to assess whether there is probable cause to believe a violation occurred. During this stage, the union will likely be asked to provide information and documentation related to the allegations in the charge. If probable cause is found, SERB will issue a formal complaint, and the case will be scheduled for a hearing before an administrative law judge.

At the hearing, both the union and the charging party will have the chance to present evidence, call witnesses, and make legal arguments. The administrative law judge will then issue a recommended decision, which can be appealed to the full SERB board for review.

Throughout this process, the burden of proof rests with the charging party—the member who filed the ULP. To prevail, they must demonstrate by a preponderance of the evidence that the union's actions were arbitrary, discriminatory, or in bad faith. This is a significant legal hurdle, as unions are entitled to substantial deference in their decision-making as long as they can show a rational basis for their actions.

For unions, the best defense against duty of fair representation charges is a strong offense—maintaining robust internal processes, documenting decisions thoroughly, and communicating proactively with members. By building a record of fair, transparent representation, unions can not only avoid legal liability but also strengthen their relationship with the workers they serve.

Ultimately, the duty of fair representation is about more than just avoiding ULP charges. It is a core expression of the union's purpose and values. By embracing this duty and striving to represent all members fairly and effectively, unions reaffirm their vital role in the struggle for dignity, justice, and a voice at work for every worker. The duty of fair representation is not just a legal obligation—it is a moral imperative and a guiding light for the labor movement.

Ohio Union Labor Lawyers