Ohio Duty of Fair Representation in the public sector

posted by Neil Klingshirn  |  Sep 24, 2009 07:14 AM [EST]  |  applies to Ohio

A union owes all of its members a duty of fair representation. The union cannot discriminate against an individual or group of members regarding matters for which the union represents them. This includes the negotiation and administration of the terms and conditions in a collective bargaining agreement and representation in the arbitration and grievance process.

Ohio public sector employees' right to fair representation is enforced by filing an unfair labor practice charge with the State Employment Relations Board (SERB). SERB will investigate and, if it finds probable cause, will hear and decide the charge.

Elements of an Ohio Public Duty of Fair Representation (DFR) Charge

Ohio Revised Code section 4117.11(B) makes a union's failure to fairly represent all public employees in a bargaining unit an unfair labor practice charge. A violation of ORC 4117. 11(B)(6) duty of fair representation (DFR) requires proof of:

  1. Arbitrariness alone, if  the conduct is so egregious as to be beyond the bounds of honest mistake or misjudgment.

  2. Arbitrariness plus Improper motive;
    1. Bad faith or 
    2. discriminatory intent;
  3. Evinced by:
    1. discrimination based upon an irrelevant and invidious consideration, 
    2. hostile action or 
    3. malicious dishonesty i.e., bad faith.

In re Wheeland (June 6, 1995), Franklin App. No. 94APE10-1424, 1995 Ohio App. LEXIS 2369, 1995 WL 347896, *4, quoting In re AFSCME, Local 2312 (Oct. 16, 1989), SERB No. 89-029, at 3-203 to 3-204.

Arbitrariness is the absence of a rational basis

The failure to take a basic and required  step while performing a representation function creates a rebuttable presumption of arbitrariness. In re OCSEA/AFSCME Local 11 (July 22, 1998), SERB No. 98-010, at 3-58; see also Dist. 1199 (adopting Vencl v. Internatl. Union of Operating Engineers, Local 18 (C.A.6, 1998), 137 F.3d 420, 426).

The initial burden is on the Charging Party and the Complainant to show that the union acted arbitrarily, and therefore did not fairly represent the Charging Party, by showing that the union failed to take a basic and required step. In re OCSEA/AFSCME Local 11 (July 22, 1998), SERB No. 98-010, at 3-58; see also Dist. 1199, The Health Care & Soc. Servs. Union, SEIU, AFL-CIO v. State Emp. Relations Bd., Franklin App. No. 02AP-391, 2003 Ohio 3436, P 37-38.

A leading Ohio case is State ex rel. Hall v. State Empl. Rels. Bd., 2009 Ohio 3603, P27 (Ohio July 29, 2009)

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posted by Neil Klingshirn  |  Sep 24, 2009 07:14 AM [EST]  |  applies to Ohio

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