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5 J.L. & Educ. 77 (1976)
The Duty of Fair Representation in Public Sector Collective Bargaining

handle is hein.journals/jle5 and id is 87 raw text is: The Duty of Fair Representation In Public Sector Collective Bargaining KENNETH J. ROSE* The Private Sector Neither of the principal private sector labor relations statutes, i.e., the National Labor Relations Act (NLRA),' and the Railway Labor Act (RLA),2 explicitly imposes a duty of fair representation upon the exclusive bargain- ing representative. Perhaps this is because the principle of exclusivity is by and large favorable to employees and the legislative drafters did not foresee the need to develop safeguards against the abuse of union power. By pooling their economic strength and acting through a single representative freely chosen by the majority, employees can achieve the most effective means of bargaining with an employer respecting conditions of employment. Federal labor legislation recognizes that unions need this kind of collective strength to negotiate effectively with powerful employers. As a result, the collective bargaining system, as encouraged by Congress and administered by the National Labor Relations Board (NLRB) and the National Mediation Board (NMB), favors the majority at the expense of lesser interests within the union. By subordinating the interests of the individual employee to the collective interests of all employees in the bargaining unit, federal labor policy creates the possibility of union indifference toward or even total disregard of the concerns of individual workers and minority factions within the unit. To counteract potential abuse by a union of its role as exclusive representative, an affirmative duty of fair representation was judicially developed. Although of court origin, the duty of fair representation is a statutory duty inextricably intertwined with the concept of exclusivity. The existence of the duty was first proclaimed by the Supreme Court in 1944 in Steele v. Louisville & Nashville R.R.3 This decision had two major effects on unions.4 First, unions were required to recognize the interest of the individual employee. Prior to Steele, a union could deny or even ignore any * Law Clerk, Office of Appeals, Office of General Counsel, National Labor Relations Board. 29 USC §§ 151-68. 2 45 USC §§ 151-88. 3 323 US 192 (1944). 4 Clark, The Duty of Fair Representation: A Theoretical Structure, 51 TEXAS L. REV., 1119, 1120.

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