The duty of fair representation is incumbent upon Canadian 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.
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 .
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.
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.
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.