Competing Models of Fair Representation: The Perfunctory Processing Cases

Abstract

The duty of fair representation was created by the U.S. Supreme Court in 1944 to prevent unions from practicing racial discrimination in the negotiation of collective bargaining agreements.'Since then, the scope of the duty has been vastly expanded.Courts now scrutinize union activities in the negotiation, administration, and arbitration of collective bargaining agreements not only for racial discrimination, but for bad faith, hostility, and any other acts that might be deemed "arbitrary" or "perfunctory."'With this expansion comes criticism of both the theoretical assumptions that underlie the duty of fair representation and the practical problems that its implementation engendered.'This article examines the duty of fair representation, in the context of processing employee grievances, taking as given the U.S. Supreme Court decisions in the area and exploring the extent to which these cases leave unanswered important questions about the scope of the duty.

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