The duty of fair representation is incumbent upon Canadian[1] and U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. It is the obligation to represent all employees fairly, in good faith, and without discrimination.[2]
Originally recognized by the United States Supreme Court in a series of cases in the mid-1940s involving racial discrimination by railway workers' unions covered by the Railway Labor Act, the duty of fair representation also applies to workers covered by the National Labor Relations Act and, depending on the terms of the statute, to public sector workers covered by state and local laws regulating labor relations.
The term as used in Canada applied to 7 out of 10 provinces and in federal law as of 2003[update].
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Transcription
[train passing] ♪ pizzicato background music ♪ (Narrator) Britain's rail network transports 3 million passengers and 400,000 tonnes of freight a day. With hundreds of trains using it at any one time. All this traffic presents us with a safety challenge. Trains are guided by rails, so it's impossible for them to swerve or pull over. Trains are heavy, can't stop quickly and frequently operate at speeds which do not enable them to halt within sighting distance of the driver. Under these circumstances, one might assume that trains are prone to collision. In fact, rail is the safest mode of transport in Britain. And that's because trains are carefully controlled. Hence our responsibility at Network Rail to control them. Signalling is the control process Network Rail uses to operate trains safely, over the correct route and to the proper time-table. The two key features of this process are line-side signals and the block system. Trains can't collide if they're not permitted to occupy the same section of track at the same time. So the network is divided into sections known as "blocks". Normally, only one train is permitted in each block at any one time. The British rail network uses line-side signals to advise the driver of the status of the section of track ahead. Most line-side signals are in colour light form, but a significant number of semaphore signals remain on secondary lines. The semaphore consists of a mechanical arm that raises to signify go or lowers into the horizontal to signify stop. The most modern signals have 4 colour aspects. A green light indicates clear. A double yellow indicates that the next signal will be a caution. The yellow signal indicates caution, and that the next signal will be red. And a red means stop, otherwise known as danger. It's prohibited to pass a signal at danger. The British rail network was originally controlled by thousands of manned signal boxes located at regular intervals along the lines. ♪ guitar background music ♪ (Stewart) My name's Stewart Sentence, I'm the signaller at Uttoxeter signal box. This is the most traditional form of system on the railway as it is at the moment. A lot of this, as you see, goes back to when the original railway started. As far as we're concerned the universe begins at Caverswall over to the right and Sudbury there and we're in the middle. This set of blocks tells me where the train is between myself and Caverswall, and this set of blocks tell me where the train is between Sudbury and myself. These levers here will operate the points for the crossings into the loops and sidings. They'll also work the semaphore signals. (Narrator) To prevent a collision caused by human error, the safety system called "interlocking" protects the railway network. Interlocking is a series of mechanical devices that prevents the signaller operating appliances in an unsafe sequence. (Stewart) What you have here is what looks like a simple lever system but is actually, if you looked underneath the box, is quite a complicated interlocking system. The interlocking system prevents me giving a green signal to an approaching train unless I set that route in that interlocking system safely first. It sounds simple and it basically works simple but the action what it does is very good. (Narrator) Level frame signal boxes, while effective, aren't efficient. They only cover a short section of line and manning them with skilled operators is expensive. (Stewart) Now I can pull the signals off No. 2. [loud click] Some of these you'll see me pulling quite 'ard; that's because there's a lot of gape on these. Some people can't actually pull 'em at all. Well a lot of it's fairly hands on. You see the trains, you've got control over the trains and the job itself. It's a good job; a better job as I've ever 'ad. Without a doubt. [clank] [train passes rapidly] (Narrator) The next big leap in rail signalling control came with the electronic age and the advent of Power Signal control Boxes like this one in Derby. ♪ 60s electronic background music ♪ (Signaller) This location opened in 1969, and when it did open it represented a massive step forward to the railways in the way that trains are signalled. Well, these lines represent mainly the Derby to Birmingham main lines. This signal box actually took over 84 mechanical signal boxes, making it a far more efficient way of carrying out signalling. (Narrator) Routes are set by pressing buttons on a large control panel. Each section between buttons represents a stretch of line formerly controlled by a lever framed signal box. (Signaller) It's very easy to work around. The signalling system is very user friendly and very easy to see the layout of the trains and where they're coming from and going to. The presence of a train is indicated by these red lights on the panel. They're activated by the completion of an electrical circuit when the train's wheels pass over the track circuit. The operation of the signalling equipment is carried out by pulling and pushing the actual buttons that are set in the panel. To set a route you press the entrance button, you press the exit button and the signalling system between detects all equipment that's located between the two signals. Once that's in the correct position, the signal will clear for the train to proceed. To take the route out, we simply pull the exit button and the route will drop out. (Narrator) Power Signal Boxes are regulated by a relay room, a little like a giant mechanical computer. (Signaller) This is the interlocking room, underneath the operating floor of the Power Signal Box. And in 'ere are all the banks of relays. And these relays relay all of the information from the touches of the buttons upstairs from the signaller outside to the points and the track circuits and the level crossings. (Narrator) Relays are interlocking electro-mechanical switches. When the signaller sets a route in the upstairs control room, you can hear the switches clicking, working out how to set the signals and switches and crossings and whether the set route is safe. [clicking] (Signaller) These cabinets are where the equipment in Derby PSB reach the modern era. These allow transmission of the train head code, the four-digit running number that we saw on the panels upstairs to be transmitted to adjacent signal boxes to give them advanced notification of that train coming so that train can be routed further down the line. (Narrator) Powered Signal Boxes are effective and safe. But at Network Rail we're now introducing an even more efficient form of signalling control. ♪ rapid piano background music ♪ (Jason) Compared to the oldest lever box signal boxes, this is a world apart. It's like an Air Traffic Control Centre basically, but controlling trains instead of aeroplanes. My name's Jason Jones, I'm a signaller and I work at Ashford IECC in Kent. The IECC stands for "Integrated Electronic Control Centre". All the signalling in this signalling centre is controlled by computers. A timetable is downloaded every day and any alterations etc. are all programmed into the computer. When everything's running on-time and all the trains are in their correct place and there's nothing else going on, the computers are all running the job and I am literally just sitting here monitoring. Hello John, yeah it's sitting on area 83 Ashford, over. At any time there could be an emergency of any description and that's when I will then step in and take over from the computer. I will turn the computer off and then run the trains manually using the keyboard or the tracker-ball system that we've got. On this screen here I can see the exact layout of the stations and the tracks. I can see where the trains are - where the red line is. Each red line indicates the location of the train. I can see where the trains are heading for (what route they're taking) by the white line. That's what the computer has set up for that train to use. We can also see the signals what the driver sees out on the track. The red dots indicate a signal that's red, we've got a single yellow, we've also got a double yellow. And obviously we've got the green signals which means then he can proceed at line speed. ♪ slower piano background music ♪ The computers that Network Rail uses in this type of location are specifically designed for this type of system. They use various safety protocols, various fail-safes. You get three computers working in tandem with one another and before any decisions are made, two of the computers have to agree with one another. Ashford covers a huge area, right from the Kent coast at Folkstone right the way into Central London. That is the equivalent, yeah, of hundreds of the old style lever frame signal boxes. [train horn] We don't just deal with standard trains here. As well as the commuter trains that we run we also run the high-speed trains into St. Pancras and the Eurostar trains that come from Paris and Brussels. The high speed trains are run using a totally different way of signalling trains than the old-style and conventional signals. The high-speed line is signalled using cab-signalling where the driver gets a display in the cab and that tells him when to stop his train, start his train and what speed he must run at. The trains travel up to 186 mph, and that's just too fast for the driver to be able to see signals out on the track. All the systems, whether you're in a lever box or you're in this type of modern technology it's all designed to fail safe and that is any failures, the signals go back to red. This job carries a lot of responsibility. You are responsible for people's lives on the trains, the public, drivers, track workers. You do have a fair bit of responsibility. No matter how much the technology changes, the one thing that remains the same is the safety and the security of the trains out on the track.
History
The concept of a DFR originated in the 1940s in the American case, Steele v. Louisville & Nashville Railroad and was formalized as a legal test in Vaca v. Sipes (1967). The doctrine was first mentioned in Canada with the Woods Task Force Report. The first Canadian case to establish a DFR was Fisher v. Pemberton (1969) which cited Vaca v. Sipes. A DFR wasn't enacted in statute in Canada until amendments to the Labour Relations Act of Ontario were added in 1971, followed by British Columbia in 1973.[3]
Application in Canada
Findings of a violation of the DFR against a union are relatively rare in Canada, as the courts have interpreted it not as duty to provide good representation but as a duty to not provide bad or discriminatory representation.[3] Nevertheless, DFR complaints are upheld in cases where the union has made decisions that are "arbitrary, capricious, discriminatory or wrongful".[4]
Application in the United States
The duty applies to virtually every action that a union might take in dealing with an employer as the representative of employees, from its negotiation of the terms of a collective bargaining agreement, to its handling of grievances arising under that agreement, as well as its operation of an exclusive hiring hall and its enforcement of the union security provisions of a collective bargaining agreement. However, the duty does not ordinarily apply to rights that a worker can enforce independently; the union has no duty to assist the employees it represents in filing claims under a workers' compensation statute or other laws.[2]
The duty likewise does not apply for the most part to unions' internal affairs, such as their right to discipline employees for violation of the union's own rules or union officers' handling of union funds, which are regulated instead by the Labor Management Reporting and Disclosure Act. The courts have, on the other hand, applied the same principles that govern the duty of fair representation to union members' suits to enforce union constitutions.
Courts' view
Generally the courts have taken a deferential approach to reviewing unions' decisions challenged as a breach of their duty of fair representation. Recognizing that the collective bargaining process typically requires compromises, which may favor some workers at the expense of others, the courts have held that a union only breaches its duty if it acts arbitrarily, in bad faith or discriminatorily. Practical considerations have also led the courts to refuse to second-guess unions' decisions: if a court or jury could substitute its judgment as to whether a particular grievance had merit, then unions could not function, since their decisions would rarely be final in any practical sense. Accordingly, the courts have refused to overturn union decisions as arbitrary so long as they were based on a reasoned decision by the union, even if the court might believe that this decision was wrong.
New applications
In recent years[when?] the courts and the National Labor Relations Board have applied the duty of fair representation to regulate the manner in which unions enforce the union security provisions of a collective bargaining agreement. Unlike the standard applied to unions' decisions concerning grievance handling and collective bargaining negotiations, the courts and the Board have regulated this area very extensively. They have specified the types of expenses that a union can include in the fees that it charges employees who choose not to join the union but are required to pay dues under an agency shop or union shop clause, the accounting procedures used to calculate those amounts, the procedures which the union and employees must follow if an individual worker objects to paying the full amount of dues or challenges the union's calculation of the lesser amount that non-members can be required to pay, and the procedures that the union must follow before it can force the employer to fire an employee for non-payment of dues. Even stricter standards are applied to unions covered by the Railway Labor Act and to unions of governmental employees on constitutional grounds.
The NLRB applies a similarly strict standard in reviewing unions' enforcement of exclusive hiring halls, i.e., those in which the employer is bound, by contract, to hire only employees referred to it by the union. The NLRB requires unions to establish clear procedures and to follow those procedures in order to minimize the likelihood that the union would use a hiring hall procedure to exclude non-members or those out of favour with the union from the workplace. On the other hand, the NLRB applies the more deferential standard applied to union decisions generally in the case of non-exclusive hiring halls, i.e., those in which the union has the power to refer applicants for employment but the employer may also hire employees "off the street"; in those cases the union is barred from acting arbitrarily, in bad faith or discriminatorily.
Violations
The NLRB recognizes a breach of the duty of fair representation as a violation of the National Labor Relations Act. However, because the duty of fair representation was originally created by judicial interpretation, rather than as an express statutory prohibition, employees covered by the National Labor Relations Act may sue their unions directly, without being required to first exhaust any administrative procedures provided under the National Labor Relations Board. The same is true for workers covered by the Railway Labor Act, which does not provide any administrative procedure for pursuing claims against a union. Employees' claims under either Act are governed by a six-month statute of limitations.
The NLRB and the courts provide different solutions against unions that breached their duty of fair representation. Because the Board does not usually have the jurisdiction to enforce the collective bargaining agreement or to issue a remedial order against an employer that has violated it, the NLRB often cannot award complete relief to employees. A court, on the other hand, may order an employer to reinstate or pay back pay to an employee if it finds that the employer violated the collective bargaining agreement and may, in some instances, order the union to pay attorneys' fees to a successful plaintiff. These distinctions do not apply to workers covered by the Railway Labor Act since, as noted above, they have no administrative procedures to enforce their rights.
A union may, in some limited circumstances, require employees to exhaust any internal appeals procedures provided under the union's constitution before filing suit. Unions and employers may also generally require employees to exhaust their rights under the grievance arbitration procedures provided for under the collective bargaining agreement before suing the employer for breach of contract. However employees do not usually have to exhaust such procedures if they are suing only the union, since very few collective bargaining agreements even allow for the filing of a grievance against the union by covered employees. To the extent that an employee might have a breach of contract claim against a union arising out of its performance of its duty to represent that employee, the courts will apply the same deferential standards and procedural requirements that they would employ if the worker sued the union on a breach of the duty of fair representation theory.
See also
References
- ^ "FAQ - Duty of Fair Representation". www.alrb.gov.ab.ca. Retrieved 2022-11-03.
- ^ a b "Right to fair representation". National Labor Relations Board. Retrieved 19 April 2022.
- ^ a b Kellythorne, Morgana (2003). "Toward a Theory of the Duty of Fair Representation" (PDF). Appeal. 3 – via CanLII.
- ^ "Successful DFR Case Explains Union Obligations in Alberta". bowriveremploymentlaw.com/. Retrieved 2022-11-03.
This page was last edited on 10 December 2022, at 09:37