The duty of fair representation, under which a union as exclusive bargaining agent has an obligation to deal fairly on behalf of all of a bargaining unit’s employees (union and nonunion), has been inferred from the NLRA’s grant of authority to the union to negotiate on behalf of all workers. That other nations do not have the exclusivity concept and all its consequences makes this kind of litigation peculiar to the United States.

In 1944 the Supreme Court held that the failure of a union to meet its duty of fair representation constituted a violation of federal labor law, and the NLRB subsequently held that it constituted an unfair labor practice as well.

In Vaca v. Sipes the Court held that the federal courts as well as the Board had jurisdiction over duty-of-fair-representation cases. However, unless the collective bargaining agreement authorizes the individual to take his or her grievance to arbitration, the union maintains control of the grievance and may determine whether to initiate arbitration. The Court held that the individual employee has no “absolute right” to initiate arbitration and that the industrial self-government that had been created by the parties would be harmed by a contrary rule. At the same time the Court concluded that an employee could attack the union’s failure to process the grievance if its actions toward an employee in the bargaining unit were “arbitrary, discriminatory, or in bad faith.” It is difficult to determine what the Court meant by these words. Whether a union’s simple failure to process a grievance because it was lost or forgotten constitutes a failure to meet the duty of fair representation is unresolved,but it certainly presents a difficulty for the employee whose grievance is meritorious.