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February 21, 2011

The Duty of Fair Representation

The Big Lies insidiously drive discourse into foul perfidy, presenting themselves as obvious truths (if only the people had the eyes to see), and moving the boundaries of acceptable conversation further and further toward their paymaster's purposes.

One of the techniques of the modern Big Lie is dropping small truths and reasonable questions into the stream of messages; these unobjectionable tidbits provide a foothold for unaffiliated voices to join the discussion designed by the Big Liars, unintentionally contributing a bit of momentum and credibility to the scurrilous campaign.

In the recent discovery Big Lie that public employee unions are the perpetrator of every known problem, some legitimate questions about unions have been raised. A reasonable theme (expressed by worthy bloggers and commentors) is that Unions would fare better if they choose their battles with more wisdom; in other words, Unions would get more support if they used discretion and avoided supporting their more egregious members.

It's a good question. Why do Unions support every member, even if it's onerous or unwise? The answer comes out of a 1941 Supreme Court decision regarding racism, railroads, and unions.

The history of organized labor and racism is no better than the American history of racism. A union was formed to represent railway workers, the union excluded blacks, and the union was recognized as the exclusive bargaining agent. A black man named Bester William Steele had lost his job in 1941 over the Union's racial bias. He filed suit jointly against the Louisville and Nashville Railway Company and the Brotherhood of Locomotive Enginemen and Firemen. He charged
that the Union "had refused to represent the Negro fireman fairly and impartially, had been persistently disloyal and hostile to them, had sought to destroy their vested seniority rights, and to drive them out of service", and because the Union enjoyed Congressionally conferred exclusive bargaining power, these violations comprised breaches of the fidiciary duty the union owed to members and nonmembers alike.
In the Encyclopedia of U.S. labor and working-class history, Volume 1, we read that the Court found that since the Unions had been given the status of exclusive bargaining agent, they had implicitly assumed a fiduciary duty of fair representation for all employees in the bargaining unit.

From Wikipedia:
The duty of fair representation is incumbent upon 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
. 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 ... public sector workers covered by state and local laws regulating labor relations

The US Supreme Court now recognizes the necessity for protecting the "workers' precarious position between the two giants of labor and management and have recently moved in the direction of establishing a negligence standard to determine breach of the duty of fair representation".

Unions cannot pick which employees they will represent. They cannot pull out all the stops for a conscientious employee saddled with an unjust situation and not make the same effort for a despicable goldbrick. They get the ugly babies along with the pretty ones. If a Union were to treat an unappealing member's complaint with benign nonchalance, they are liable themselves and subject to decertification. A decision to abandon an unsavory Member is a decision to risk dissolution of the union.

Why do Unions support every member, even if it's onerous or unwise? In the normal world, in places like Iowa or Kansas, our answer would be:
  • In general, unions support employees consistently because of the theory of Duty of Fair Representation.

Unfortunately, I've learned that there are two sets of answers.
There's a Normal-World (Iowa, Kansas) answer, and then there's a Pittsburgh answer.

Here in Pittsburgh, there are many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many, many examples of Pittsburgh unions standing up for unsavory or malpracticing members.

Given the remarkable supply of local anecdotes, we must recognize one additional Pittsburgh answer to the question, Why do Unions support every member, even if it's onerous or unwise?
  • Normal World: In general, unions support employees consistently because of the theory of Duty of Fair Representation.
  • Pittsburgh: Joe King and Dan O'Hara really don't have a clue, and their sense of time is about 60 years off.

The theory of Duty of Fair Representation does not provide for discretion. It's not the Union's role to handle incompetent or scandalous employees; that falls to management to handle. It's the Union's role to represent them.

It's not too different from the application of our American constitution or our Bill of Rights. We don't guarantee rights to the inoffensive, tolerable, well-mannered members of the Rotary; we guarantee rights to everybody, specifically including the poorest, the weakest, even the stupid and offensive, even in Pittsburgh, and we even guarantee these rights to Glenn Beck.


Infinonymous said...

A sound union is able to fulfill its legal, contractual and moral duties with respect to a member without publicly vouching for the character of the opprobrious, circulating ridiculously stretched defenses, or insulting the intelligence of anyone who was capable of navigating the third grade.

When a decent firefighter, paramedic, police officer or paramedic needs a forceful, careful and credible defense, no local union leader will be positioned to provide it; those union officials have squandered their credibility by engaging repeatedly in two-bit whoredom.

MH said...

They marched in a parade, of all things, for some of the worst cases. It isn't representation, it is a naked political-tribal act.

If it turns out they bribed Dimon's arbitrator, I'd be relieved. It would mean the lawyers involved still knew the difference between right and wrong.

Vannevar said...

I wanted to communicate that "big picture", there is a reason for unions to support all members. And "Myopic Yinzer Picture", Joe King and Dan O'Hara don't have a clue and go way out of bounds.

The comment about bribing Ms. Dimon's arbitrator was unexpected; have there been allegations of such a thing?

FWIW, I think Ms. Dimon's firing was wrong. I think what she did was understandable in the context of the info flow, I think she was made a scapegoat for politicians and a suboptimal call system, and I think the Arbitrator made a good call. If me or mine are in trouble, I'd be happy to see "Dimon" on the nametage of the EMS responder.

MH said...

Did you read the arbitrator's report? If not, I'll find the link when I'm at a real computer. It reads like a bad defense attorney's closing and was clearly not neutral. But, I know nothing about the arbitrator and was merely trying to illustrate how bizarre the ruling seemed.

Vannevar said...

I did read it, it's online here:
Cheers, V.

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