What is the Duty of Fair Representation?
A labor union is given great latitude as to how it represents its members. For example, if it behaves merely negligently or if it makes tactical errors or an error in judgment, the union cannot ordinarily be sued. But, conduct that is arbitrary, discriminatory, or in bad faith breaches the union's Duty of Fair Representation ["DFR"] to its members. The DFR that a union owes its members is the corollary to the fact that the individual worker surrenders his or her his right to bargain individually. In creating the DFR in 1944, the Supreme Court noted that a union "is to act for and not against those whom it represents." The DFR has been described as similar to a fiduciary duty, like that of a trustee to a trust or an attorney to his client.
The Very Short Statute of Limitations
The DFR statute of limitations is one of the shortest known to law -- six months. The clock starts running when plaintiff knew or reasonably should have known of the breach. Thus, for example, when the plaintiff's complaint is based on inadequate union representation during arbitration, the limitations clock starts to run on the date of the final arbitration award, because that is when plaintiff actually knows that the union's conduct breached the DFR. The employee is entitled during the arbitration to trust that his or her union is acting in good faith. When a DFR suit based upon the Railway Labor Act (which protects those in the aviation and railroad industries) and deals with issues of seniority (as many DFR claims do) , the breach occurs only when the union actually works against its members' interests. There exist certain relatively rare instances when the statute of limitations is "tolled" (or frozen), which will be dealt with in a separate legal guide.