Welcome to

1. Welcome to Advanced Duty of Fair Representation Presented by Kurt Rumsfeld, IAFF Legal Counsel

2. Disclaimer Please note that this presentation is offered solely for informational purposes, and is not intended, nor should it be relied upon, as legal advice. An individual or affiliate in need of legal advice or assistance on any topic covered in this presentation should contact and confer with legal counsel to obtain legal advice appropriate to his or her particular situation.

3. Duty of Fair Representation �A breach of the statutory duty of fair representation occurs only when a union�s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith.� - U.S. Supreme Court in Vaca v. Sipes, 386 U.S. 171, 190 (1967)

4. DFR: What Law Applies? For non-federal public sector employees, state statutory or common law applies. For private sector employees, common law arising from the Labor-Management Relations Act applies. For federal sector employees, common law arising from Civil Service Reform Act applies.

5. DFR: To Whom Does the Standard of Care Apply? Courts have held that the power conferred upon a union as the employees� �exclusive representative� carries with it the duty to represent bargaining unit employees consistent with the DFR standard. Where the union is granted �exclusive representative� status for the bargaining unit, therefore, the standard applies to all bargaining unit members.

6. DFR: To What Actions Does the Duty Apply? Actions of the union as the �exclusive bargaining representative� include collective bargaining, grievance processing and prosecution, and contract administration. Such actions usually do not include lawsuits that are brought by individual members pursuant to laws unrelated to collective bargaining. Smith v. Biller, 1996 U.S. App. LEXIS 16448 (7th Cir. 1996) (no duty to provide counsel for discrimination claim) Barker v. Chesapeake & Ohio RR, 959 F.2d 1361 (6th Cir. 1992) (union has no duty to represent members on statutory claims not related to the negotiation or administration of the CBA)

7. DFR: �Arbitrary� Conduct Defined �A union�s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union�s actions, the union�s behavior is so far outside a �wide range of reasonableness� as to be irrational.� - U.S. Supreme Court in ALPA v. O�Neill, 499 U.S. 65, 67 (1991)

8. DFR: �Arbitrary� Conduct Defined Court also said in O�Neill that the courts should not substitute their own view of what the union should try to accomplish in collective bargaining, as long as the union made a rational decision, even a wrong one. Courts have also held that unions cannot be held liable under DFR standard for �merely negligent conduct.� Plaintiff may prevail by showing that union made an �unreasoned� decision (i.e. made no evaluation), refused to make a decision, or made a pro forma effort to protect employee�s interest.

9. DFR: �Discriminatory Conduct� Defined Courts take a hard line on discrimination based upon race, sex, religion, national origin, ethnicity or other grounds prohibited by federal law. Such conduct is also prohibited by Title VII.

10. DFR: Discriminatory Conduct (cont�d) Discriminatory conduct can also include adverse treatment because of lack of union membership, intra-union political activities, or membership in a minority group within the bargaining unit. �It is axiomatic that a union practice that principally looks to union membership or non-membership to determine the type of representation that will be provided bargaining unit employees is discriminatory� NTEU v. FLRA, 721 F.2d 1402 (D.C.Cir. 1983)

11. DFR: �Bad Faith� Conduct Defined When the union engages in misrepresentations or other �deceitful� conduct. Lewis v. Tuscan Dairy Farms, 25 F.3d 1138, 1142 (2d Cir. 1994) (concealing information)

12. DFR: �Bad Faith� Conduct Defined When the union engages in �unjustified interference with members� contract rights�: Bennett v. Glass Molders, Local 66, 958 F.2d 1429 (7th Cir. 1992) (secretly extending probationary period) Allen v. Allied Plant Maintenance, 881 F.2d 291 (6th Cir. 1989) (agreeing with employer to pick pro-employer arbitrator)

13. Bargaining For Competing Interests Not an automatic DFR by simply agreeing to change contract rights in a manner that may adversely affect some employees. A union may �negotiate for and agree to contract provisions involving disparate treatment of distinct classes of workers � as long as such conduct is not arbitrary or taken in bad faith.� Williams v. Pacific Maritime Ass�n, 617 F.2d 1321 (9th Cir. 1980) �The complete satisfaction of all who are represented is hardly to be expected.� Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)

14. Bargaining For Competing Interests: Unequal Outcomes Short-term compromise to achieve long-term interests, such as avoiding mass layoffs, can be ok Agreement to treat probationary employees differently from other employees can be ok (Van Leeuwen v. US Postal Service, 628 F.2d 1093 (8th Cir. 1980)) Two-tiered salary structure for incumbents and new hires can be ok (Renneisen v. American Airlines, 990 F.2d 918 (7th Cir. 1993))

15. Bargaining For Competing Interests: Seniority �Absent a showing of fraud or hostile motivation, courts have approved a variety of systems for merging seniority lists of entitles that are consolidating their operations.� Smith v. Baltimore & Ohio RR, 485 F.Supp. 1026 (D.Md. 1980) Dovetailing is ok Denial of seniority rights for employees hired after certain date ok (Hardcastle v. Western Greyhound Lines, 303 F.2d 182 (9th Cir. 1962)) But can�t alter seniority to help win representation election at newly consolidated unit (Teamsters Local 568 v. NLRB, 379 F.2d 137 (DC Cir. 1967)) And also can�t favor union membership (Bowman v. TVA, 744 F.2d 1207 (6th Cir. 1984)) Note: DFR doesn�t apply to employees of acquired company if represented by another union (McNamara-Blad v. Ass�n of Professional Flight Attendants, 275 F.3d 1165 (9th Cir. 2002))

16. Bargaining Competing Interests: Retirees Because retirees are not members of the bargaining unit, the union has no statutory duty to represent them in negotiations with the employer. Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971) United Mine Workers of America v. Robinson, 455 U.S. 562 (1982) Anderson v. Alpha Portland Industries, 727 F.2d 177 (8th Cir. 1984)

17. Grieving Competing Interests �Conflict between employees represented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining and grievance process.� Humphrey v. Moore, 375 U.S. 355, 350 (1964)

18. Grieving Competing Interests �The Court is unaware of � any case law in support of the plaintiff�s argument that the representation of two employees in separate grievance proceedings by the same union official constitutes a per se breach of the duty of fair representation. Indeed, �a union must necessarily, and without violating anyone�s rights, represent employees who have antagonistic interests.�� Lettis v. U.S. Postal Service, 39 F.Supp.2d 181, 198 (E.D.N.Y. 1998) (internal citation omitted)

19. Grieving Competing Interests �In the situation of a direct conflict between employees, a union�s decision to support a particular position must be made in good faith and not arbitrarily. This would seem generally to require an informed, reasoned judgment regarding the merits of the claims.� Smith v. Hussmann Refrigerator Co. and Local 13889, United Steelworkers, 619 F.2d 1229, 1238 n.9 (8th Cir. 1980)

20. Grieving Competing Interests: Co-Worker Altercations Union may pursue conflicting claims of 3 members at same hearing (Hellums v. Quaker Oats Co. & Local 125, Retail, Wholesale and Dept. Store Union, 760 F.2d 202 (8th Cir. 1985)) Union need not provide totally separate defense team for each grievant (Johnson v. American Postal Workers Union, 1979 U.S. Dist. LEXIS 8759 (D.D.C. 1979)) Union grieves on behalf of both employees, but withdraws one after investigation (Missouri Rolling Mill Corp. v. United Steelworkers Local 1023, 89 Lab. Arb. Rep. (BNA) 193 (1987)) Union breaches DFR by refusing to process grievance in part because other co-worker in altercation is friendly with union president (Griffin v. United Automobile Int�l Union, 469 F.2d 181 (4th Cir. 1972))

21. Grieving Competing Interests: Promotions and Callbacks Grieving where there are competing claims within the bargaining unit for the same promotion can be very tricky: Belanger v. Matteson, 115 R.I. 332 (R.I. 1975) Smith v. Hussmann Refrigerator, 619 F.2d 1229 (8th Cir. 1980) Teamsters Local 618 v. Gelco Corp., 758 F.2d 1272 (8th Cir. 1985) Same with competing claims for call-back rights: Amburgey v. Consolidation Coal Co., 923 F.2d 27 (4th Cir. 1991)

22. Grieving Competing Interests: Sexual and Racial Co-Worker Harassment Claims Union has DFR to employee grieving discipline for harassment Union may have DFR to employee alleging harassment, and may be liable under DFR and/or Title VII for failing to file harassment claim Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir. 1991) Union not necessarily liable under Title VII for failing to remedy harassment by employer EEOC v. Pipefitters Ass�n Local 597, 334 F.3d 656 (7th Cir. 2003) Cole v. Appalachian Power Co., 149 LRRM 2638 (S.D.W.V. 1995) Thorn v. ATU Local 1005, 305 F.3d 826 (8th Cir. 2002)

23. Grieving Competing Interests: Sexual and Racial Co-Worker Harassment Claims Discussion Point: Could a union be found liable under Title VII for successfully defending a harasser? Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999) (dicta) Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) (employer may be liable under Title VII for reinstating harasser) Some state laws make interference with attempts to comply with discrimination laws unlawful

24. Grieving Competing Interests: Sexual and Racial Co-Worker Harassment Claims Practice Tips for Avoiding DRF liability in these situations: Adopt representation policy for handling harassment and other discrimination complaints and grievances; should require that they be in writing on simplified form Review employer policy or bargaining agreement to determine union�s role in enforcing employer�s harassment policy Carefully screen and investigate any request to grieve on behalf of a harasser or harassed Memorialize investigation and avoid grievances that lack merit If grievance is taken, educate all affected bargaining unit members on action that is being taken and take steps to account for their interests Appoint separate representatives for both parties to the harassment Adopt a policy explicitly advising the membership of the union�s approach to conflicting interest situations

25. Other Potentially Tricky DFR Situations The �repugnant� grievant �I want an attorney� Not required, so long as right to counsel is not guaranteed by union policy and competent union rep is otherwise provided. Castelli v. Douglas Aircraft Co., 752 F.2d 1480 (9th Cir. 1985) Also, need not furnish costly expert to challenge reliability of employer�s evidence, if decision is reasonable. Smith v. UPS, 96 F.3d 1066 (8th Cir. 1996) Ratification of the contract Failure to ratify not a DFR unless required by by-laws or other governing document Exclusion of non-dues paying members from ratification

26. Other Potentially Tricky DFR Situations Beware that courts are not as lenient on unions that sacrifice grievances for the good of the whole as they are when it concerns CBA trade-offs. �The deliberate sacrifice of a particular employee as consideration for other objectives must be a concession the union cannot make.� Banks v. Bethlehem Steel, 870 F.2d 1438 (9th Cir. 1989) How to successfully insulate the union from DFR charge related to settling a grievance � Carter v. Smith Food King, 765 F.2d 916, 920 (8th Cir. 1985)

27. DFR: The IAFF Can Help IAFF�s �Grievance Arbitration� Manual IAFF�s �Duty of Fair Representation Manual� IAFF�s �Fair Share & Agency Shop Guidelines Manual�

28. Contacting the Legal Department Please first obtain the approval of your local president or secretary-treasurer And then obtain the approval of your District Vice President

29. Thanks for your attention! Kurt Rumsfeld Legal Counsel, IAFF 1750 New York Avenue, NW Washington, DC 20006 (202) 824-1508

30. Scenarios