The Requirements Of The Duty Of Fair Representation

There are perhaps as many misconceptions about the duty of fair representation as any other principle in the public safety workplace. The duty, which is owed to all bargaining unit members, captures a union’s obligation to fairly represent all its members without discrimination.

The duty is not, however, a substantive duty, in that it never requires a union to process a grievance to the ultimate level, whether that level be arbitration or court. Rather, the duty is procedural in nature, and simply requires that a union use fair procedures in the consideration of claims.

This dichotomy was well illustrated in a duty of fair representation claim filed by Officer George Vivo of the Bridgeport, Connecticut Police Department. Vivo was assigned as the fatal accident team coordinator. As such, Vivo was “responsible for the complete investigation of fatal or other serious motor vehicle collisions” and performed his duties from a workstation in the Traffic Division.

During his tenure with the Department, Vivo was periodically absent from work due to illnesses and/or injury. On September 8, 1997, Vivo filed a lawsuit in the U.S. District Court for the District of Connecticut, alleging, in relevant part, that the City and the Union had discriminated against him on the basis of a disability. A settlement was reached in the case which called for Vivo’s placement “in the Fatal Team assignment that he formerly occupied so long as he desires that assignment, he performs at an acceptable level, and he is physically capable of performing the essential duties of that assignment.”

Vivo’s continuing absences from work caused tensions, however, and he was eventually transferred to the Department’s “Sick and Injured Management Division,” which was housed in a separate building from the Traffic Division. After one particularly long absence, the City returned Vivo to his assignment as Fatal Team Coordinator. However, Vivo continued to work from the Sick and Injured Management Division.

Eventually, Vivo began to eye the non-fatal-accident overtime in the Traffic Division. A lawyer for the police union wrote a letter indicating that “the Union does recognize Vivo’s present status in the Traffic Division but understands such status to be wholly limited to Fatal Team matters.” After several overtime assignments came and went, Vivo decided to bid for a transfer back to the Traffic Division.

The Department responded to Vivo’s bid with a memorandum stating “for the last 13 years, your assignment, in accordance with the October 2000 Settlement Agreement, has been as the Fatal Team Coordinator. When you are transferred to your new assignment, the Department will expect that you will perform all of the duties that a sworn police officer assigned to the Traffic Division is expected to perform.” On receiving the memorandum, Vivo withdrew his bid for the Division, and brought a duty of fair representation claim against his union.

Connecticut’s Labor Department dismissed the claim. The Department began with the general statement that “our standard for such claims is based on the United States Supreme Court’s reasoning in Vaca v. Sipes, 386 U.S. 177 (1967), that a union’s status as exclusive employee representative imposes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. In order to establish a breach of this duty we have long required that an employee produce evidence that the conduct at issue was motivated by hostility, bad faith, or dishonesty.

“A union does not breach its duty of fair representation simply by taking a position that adversely affects a member of the bargaining unit. Consequently, a union has no obligation to pursue any grievance, or to carry it to arbitration, as long as the decision is not arbitrary, discriminatory, or in bad faith. We find that Vivo failed to meet the admittedly high standard for proving a breach of the duty of fair representation.

“In this case, the record reveals that the Union considered Vivo’s claims and concluded that he was not entitled to Traffic Division overtime because he never bid into that division and because his subsequent transfer there was for the limited purpose of Fatal Team matters. Furthermore, there is a substantial evidentiary basis for finding that the Union was motivated by a desire to preserve what it viewed as a fair and orderly system for determining members’ work assignments while it appealed the district court’s interim order. We do not believe the statutory duty of fair representation required the Union to abandon a widely beneficial contractual right for the sake of a single bargaining unit member.”

City of Bridgeport, 2018 WL 1151187 (Ct. Dept. Lab. 2018).