MEMORANDUM
TO: Regional Directors
FROM: Joe Swerdzewski, General Counsel
SUBJECT: The Duty of Fair Representation
This memorandum discusses issues arising from the duty of fair representation under the Federal Service Labor Management Relations Statute for labor organizations serving as exclusive representatives of bargaining unit employees. This memorandum will serve as guidance to the Regional Directors in investigating, resolving, litigating and settling unfair labor practice charges concerning the duty of fair representation. It is being made available to the public to assist individuals, unions and agencies in avoiding these disputes. This guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three member Authority.

The number of unfair labor practice charges filed against labor organizations compared to the total number of unfair labor practice charges filed has increased in the past three years from approximately 3.5 % of the total number of charges filed in Fiscal Year 1993 to 9.2 % of the total number of charges filed in Fiscal Year 1996. At the same time, the number of unfair labor practice charges filed against agencies has decreased over the last three years from approximately 96.5 % of the total number of charges filed in Fiscal Year 1993 to 90.8 % of the total number of charges filed in Fiscal Year 1996. Thus, while the number of charges filed against agencies has dropped in the last three years by 27 %, the number of unfair labor practice charges filed against labor organizations has increased 89 %.
The vast majority of the charges filed against labor organizations allege violations of the duty of fair representation. These types of charges usually involve situations where an employee has a dispute with the agency and claims that the exclusive bargaining representative has failed to fulfill its statutory duty to represent the employee in that dispute. These types of issues normally involve individual employee concerns which adversely affect an employee, rather than the institutional concerns that arise in bargaining disputes, and are often accompanied by strong positions and personal emotions. Duty of fair representation issues also can involve situations where non-union members claim that they are being treated differently from union members by the manner in which the union administers a provision of a collective bargaining agreement or some other condition of employment over which the union has exclusive control.
The legal tests established by the Authority for determining whether the duty of fair representation under the Statute has been violated by a union require a complete examination of the totality of the circumstances. For example, there may be situations where a union commits an unfair labor practice when it treats union members more favorably than non-union members in the bargaining unit. There also may be situations, however, where a union does not commit an unfair labor practice when it treats union members more favorably than non-union members in the bargaining unit. A determination must be made as to whether the matter was one grounded in the union's role as exclusive representative. Further, although a labor organization may have been negligent and/or inept in its dealings on behalf of an employee grievant, that evidence standing alone is normally not sufficient to sustain an unfair labor practice. Moreover, even where a duty of fair representation violation has been found, the case law still is being developed to seek effective remedies. In addition, agencies often become embroiled in these employee/union disputes, not only because the agency may be involved in the underlying dispute with the employee, but because the employee may have requested the agency for assistance in championing the employee's dispute with the union. In view of the increased number of duty of fair representation unfair labor practice charges and the difficult issues that those charges raise, I have decided to issue this guidance memorandum to the Regional Directors, and to make it available to the public, to set forth my views on these important issues.

This memorandum is divided into five parts. Part I discusses the legal tests established by the Authority for determining whether the duty of fair representation has been violated and highlights the types of factors that the Authority has relied upon in making its determinations. Part II explores the types of remedies which the Authority has ordered and which the Regions may seek when a Regional Director determines that the duty of fair representation has been violated. Part III discusses actions which agencies may and may not take when an employee seeks assistance in the employee's dealing with an exclusive representative. Part IV explores when a union may consider only the views of members when taking a position on a condition of employment to present to an agency and when a union must treat members and non-members the same when deciding on what a position to take. Part V provides a discussion of the relationship between the duty of fair representation and the selection of employees for work teams and awarding work teams as a group. An appendix contains a summary of the duty of fair representation cases that the Authority has decided.

A. The Section 7114(a)(1) Duty of Fair Representation
Section 7114(a)(1) of the Statute provides:
§ 7114. Representation rights and duties.

(a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.

The obligation set forth in the second sentence of section 7114(a)(1) of the Statute is commonly referred to as an exclusive representative's duty of fair representation. The Authority has interpreted this section to require an exclusive representative to represent the interests of all bargaining unit employees: 1) without discrimination; and 2) without regard to whether the employee is a dues paying member of the exclusive representative. The duty of fair representation is grounded in the principle that when a union attains the status of exclusive representative, it must use that power to fairly and equally represent all members of the unit.
I will first discuss that aspect of the duty of fair representation which involves disparate treatment by a union of a unit employee based on union membership.
B. Authority Test When Employees are Treated Differently Based on Union Membership
1. Legal Test
This aspect of the duty of fair representation usually concerns situations where a non-dues paying bargaining unit employee claims disparate treatment from that received by dues paying union members. In other words, an employee alleges he/she was treated differently just because they were not union members.

The current test to determine if a union has discriminated against a bargaining unit employee based on union membership is set forth in Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA No. 118, 28 FLRA 908 (1987) (Fort Bragg).
Basically, an exclusive representative may not treat non-union members differently than dues paying union members in matters over which the union has exclusive control. Thus, the duty not to discriminate based on union membership attaches only when an employee has no right to choose a representative other than the union to represent the employee in the underlying dispute. In situations where an employee may choose a representative other than the exclusive representative, such as in a proceeding before the Merit Systems Protection Board or in litigation in a U.S. District Court, the exclusive representative may discriminate between dues paying members and non-members and thus may lawfully treat employees differently on the basis of whether or not they pay dues and belong to the union. Since the union in such situations does not have exclusive representation authority, the employees who are not union members may protect their interests by selecting representation from other sources. Thus, the Authority has held that an exclusive representative's responsibilities will be analyzed "in the context of whether or not the union's representational activities on behalf of employees are grounded in the union's authority to act as exclusive representative."
The same responsibility will not be extended to situations where the union is not acting as the exclusive representative, even if
"the union's activities relate to conditions of employment of unit employees." This approach is consistent with that taken in the private sector.

Thus, when a charge alleges that an exclusive representative has discriminated against a bargaining unit member because that unit employee does not belong to the union, it must initially be determined whether the activities at issue were undertaken by the labor organization in its role as the exclusive representative.

2. Decisional Analysis
In sum, when faced with an allegation that an exclusive representative has violated its duty of fair representation by discrimination based on union membership, a Regional Director will only issue a complaint, absent settlement, when the evidence supports the following findings:
1). The matter which is the subject of the allegation is grounded in the union's role as the exclusive representative; i.e.,

a). the matter concerns a topic over which the union has exclusive control; and

b). the employee had no other choice for representation other than the union; and

2). the union treated the employee differently from dues paying union members.
3. Factors to Consider

Based on this precedent, the Regions should explore the following factors when determining whether discrimination based on union membership occurred:
1). Whether the matter which is the subject of the allegation is based on the union's role as the exclusive representative.

2). Whether the matter which is the subject of the allegation concerns a topic over which the union has exclusive control.
3). Whether the matter which is the subject of the allegation was established through negotiations and is contained in a collective bargaining agreement.

4). Whether the employee had another choice, other than the union, for representation.

5). Whether the union treated a non-union unit employee differently from dues paying union members.
C. Authority Test for Discrimination When Union Membership Is Not A Factor

1. Legal Test
This aspect of the duty of fair representation usually concerns a situation where either a union member or a non-member in the bargaining unit claims that the union was ineffective in its attempt to represent an employee in a dispute with an agency. The test for this form of discrimination was first set forth in National Federation of Federal Employees, Local 1453, 23 FLRA No. 92, 23 FLRA 686, 691 (1986) (NFFE):
[W[here union membership is not a factor, the standard for determining whether an exclusive representative has breached its duty of fair representation under section 7114(a)(1) is whether the union deliberately and unjustifiably treated one or more bargaining unit employees different from other employees in the unit. That is, the union's action must amount to more than mere negligence or ineptitude, the union must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee.

In these situations, the fact that the union was negligent or inept is insufficient to find an unfair labor practice. Rather, the totality of the circumstances must be examined to determine if the union's conduct constituted the type of impropriety deemed violative of the section 7114(a)(1) duty of fair representation.
2. Decisional Analysis
In sum, when faced with an allegation that an exclusive representative has violated its duty of fair representation when union membership was not a factor, a Regional Director will only
issue a complaint, absent settlement, when the evidence supports the following findings:

1). The union acted in an arbitrary manner and/or in bad faith; i.e.,

a). the union's conduct amounted to more than mere negligence or ineptitude, but rather was outside the range of reasonableness, and

b). that treatment was deliberate and unjustified; and
2). the union's action resulted in the treatment of a unit employee different from other unit employees.

3. Factors to Consider
Based on this precedent, the Regions should explore the following factors when determining whether there has been a violation of the duty of fair represention when union membership is not a factor:
1). Whether the union could explain its conduct.
2). Whether the situation left the employee with no venue to obtain a hearing/remedy for the underlying dispute.

3). Whether the union followed or deviated from its past practices in the manner in which it processed the dispute and dealt with the employee.
D. Requirement That The Matter Be Grounded In The Union's Role As Exclusive Representative When There Is Discrimination And Union Membership Is Not A Factor.
As noted above, when discussing the duty of fair representation when union membership is alleged to be a consideration, the Authority requires the union's conduct to be grounded in the union's role as exclusive representative. Thus, where an employee has other choices for representation, the union lawfully may treat members different from non-members with respect to representation by the union. For example, the union may offer representation to members, and not to non-members, in proceedings before the Merit System Protection Board, and may charge members different fees for representation in a U.S. District Court in a matter under another Statute, such as the Fair Labor Standards Act.
The Authority, however, has never found that a union may act in an arbitrary and capricious manner when it undertakes to represent an employee in a situation involving a condition of employment where the union was under no obligation to represent the employee because the matter was not grounded in the union's role as exclusive representative. For example, the union undertakes to represent an employee before the Merit System Protection Board but engages in conduct that meets the NFFE standard of arbitrariness and bad faith.
In my view, the Authority should be afforded an opportunity to decide if a union violates its duty of fair representation when it undertakes to represent an employee in a matter concerning a condition of employment where it had no duty to do so because the employee had other choices for representation, but the union's conduct in performing that service amounts to discrimination under the standard set forth in NFFE. Indeed, in a recent decision the Authority has indicated in another context that once a union undertakes representational activity, the union serves as the exclusive representative and not as a personal representative. Under this theory, if the union is entitled to the benefits as the exclusive representation, such as the right to information under section 7114(b)(4) of the Statute, the union may also be required to adhere to the standard set forth in NFFE concerning the duty of fair representation when membership is not a consideration.
To afford the Authority with an opportunity to clarify this area of the law, the Regions should initially determine in all duty of fair representation cases where union membership is not a consideration whether the conduct violates the NFFE standard. If the Region makes such a finding, but further determines that the matter at issue is not grounded in the union's role of exclusive representative but nonetheless concerns a condition of employment, the Regions should submit the case for case handling advice.

PART II. Remedies for Duty of Fair Representation Violations

A. Objectives That An Unfair Labor Practice Remedy Should Serve.

Under sections 7105(g)(3) and 7118(a)(7)(D) the Authority has a broad range of remedial powers. These powers, however, are not without limits. In F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 52 FLRA 149, 160 (1996)(F.E. Warren AFB), the Authority set forth the broad objectives that an unfair labor practice remedy should serve. The Authority concluded that remedies for unfair labor practices should:
1) Be designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.

2) Effectuate the policies of the Statute.

3) Contribute to the deterrence of future violative conduct.

4) Not be contrary to law or public policy.
Accordingly, any remedy sought in a duty of fair representation unfair labor practice case should be consistent with these stated objectives.
B. Office Of The General Counsel Guidance When The Duty Of Fair Representation Violation Concerns A Matter Other Than A Dispute With An Agency Which Would Have Been Decided Under The Negotiated Grievance Procedure But For The Duty Of Fair Representation Violation