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Duty of Fair Representation ("DFR") Complaints
Note: Effective July 1, 2011, the fee is $300 (SB 5556 (2011).
 
 
The Public Employee Collective Bargaining Act (PECBA) requires a labor organization that is the exclusive representative of a bargaining unit to represent all employees in that bargaining unit fairly and without discrimination. That requirement is called the “duty of fair representation” (DFR).
 
 
 How to File a Complaint 


There is a $300 fee to file a complaint (ORS 243.672(3)).  The form is available on the agency’s website or by calling the agency at (503) 378-6471. Staff can answer your questions regarding procedures and applicable laws and rules. However, they are not permitted to give you legal advice. 
 
To download the form, go to the agency website (www.oregon.gov/ERB) and select Forms from the left navigation bar. Scroll down to select the “Unfair Labor Practice Complaint Form” in either Microsoft Word or PDF format.
 
To file, follow the steps below.
 
1.   You are the complainant. Fill in your name, address, phone number, and e-mail address and the name, address, phone number, and e-mail address of your representative (attorney), if any.
 
2.   The respondent is the labor organization. Fill in the respondent’s name, address, and phone number, and the name, address, and phone number of respondent’s representative, if known by you. A second respondent would be the employer (see number 3, below). Please include the name, address, and phone number.
 
3.   Specify on the complaint form the subsection of the Public Employee Collective Bargaining Act that you allege has been violated. Duty of fair representation claims against labor organizations are properly filed under ORS 243.672(2)(a) (attached).

If you believe that the labor organization’s conduct prevented you from pursuing a claim that your employer violated a term of the labor contract, you may file an unfair labor practice complaint against your employer under ORS 243.672(1)(g) (attached). The complaint against the employer should be filed at the same time and on the same form as the complaint against the labor organization. The employer would be listed as a second respondent.

Note:  You must first prove that the labor organization breached its duty of fair representation before your complaint against the employer will be processed.
 
4.   On the complaint form (or attached additional sheets), write a description of what happened. Describe the actions that you contend violated the law. Attach copies of documents that you consider central to your claim. Do not include your Social Security Number or related information on any documents submitted. If such information appears on any documents you feel are necessary for your case, please redact (black out or otherwise make unreadable) that information before submitting the documents to ERB.
 
5.   Date and sign the complaint form.
 
Submit the original and three copies of the Unfair Labor Practice Complaint, along with the filing fee of $300, to:

            Employment Relations Board
            Old Garfield School Building
           
528 Cottage Street NE, Suite 400
            Salem, OR 97301-3807

ERB will not process your complaint or consider it filed until the filing fee is paid. There is only one filing fee of $300, regardless of whether you file your complaint just against the labor organization or both the labor organization and the employer.
 
 
The complaint must be filed no later than 180 days after the
conduct that you believe violated the law.
 
 
General Information about Complaints and Hearings
 
After you file a complaint, the case will be investigated by an administrative law judge (ALJ). The ALJ generally provides a copy of the complaint to the respondent and requests that it respond informally to the allegations in the complaint.
 
If the ALJ decides a hearing is required, the ALJ will schedule the date and location of the hearing. Before the hearing, the ALJ will send you a form entitled “Advice of Rights,” which explains the hearing process in more detail. At the hearing, you may represent yourself or be represented by an attorney, or other representative of your choice, at your expense. Unions and employers generally are represented by attorneys in ERB hearings.
 
 
What Happens if You Win or Lose – Remedies and Costs
 
If you win, ERB will order the respondent to stop its unlawful action and may order other remedies. Upon proper request, ERB can also order the respondent to reimburse your $300 filing fee (see Board Rule 115-035-0075(3)) and your representation costs (see Oregon Administrative Rule 115-035-0055).
 
If the respondent wins, ERB may order you to reimburse the respondent’s $300 filing fee and to pay respondent’s representation costs (see Oregon Administrative Rule 115-035-0055).
 

Excerpt from 2000 ERB Duty of Fair Representation Decision
 
The following is an excerpt from the ERB’s decision in Putvinskas v. Southwestern Oregon Community College Classified Federation and Southwestern Oregon Community College, Case No. UP-71-99, 18 PECBR 882, 894-897 (2000) (footnotes omitted).
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“ORS 243.672(2)(a) requires a labor organization to represent fairly those bargaining unit employees for whom it is the exclusive representative. A union may breach its duty of fair representation where its actions are arbitrary, discriminatory, or performed in bad faith. The duty of fair representation is a judicially-created quid pro quo or trade-off for the authority and discretion granted by law to a labor organization that is an exclusive representative.
 
“The duty of fair representation is one form of the checks and balances that apply to the self-governance of labor organizations. We give deference to a union’s decision‑making to permit it to be ‘free to act in what it perceives to be the best interests of its members, without undue fear of lawsuits from individual members.’ Ralphs v. OPEU and State of Oregon, Executive Department, Case Nos. UP‑68/69‑91, 14 PECBR 409, 422 (1993).
 
“Duty of fair representation complaints generally allege two types of union misconduct: decision-making and unintentional acts or omissions.
 
“Union decision-making. A duty of fair representation complaint may challenge a union’s discretionary decision about how or whether to pursue an employee’s grievance. To prove that a union’s decision not to grieve a dispute violated its duty of fair representation, a bargaining unit member must establish that the union’s investigation or decision was made in an arbitrary, discriminatory, or bad faith manner.
 
“However, a union has a wide range of reasonableness in deciding how to exercise its discretion. This Board generally does not substitute its judgment for that of a union that rationally decided not to process a grievance. Instead, this Board primarily determines whether the union conducted a proper investigation and used a rational method of decision-making in reaching its conclusion. Therefore, without violating its duty of fair representation, a union may rationally decide not to pursue a grievance that the union likely would win in arbitration.
 
“In Balch v. OPEU, Case No. UP-6-96, 16 PECBR 478 (1996), this Board dismissed a duty of fair representation complaint, without hearing, where the complainant alleged that the respondent’s processing of a grievance was perfunctory. We dismissed the complaint, based on an analysis of the exclusive representative’s decision-making process, observing: ‘[T]he undisputed evidence indicates that OPEU deliberately closed Complainant’s grievance because it believed there was insufficient evidence to support her claim.’ 16 PECBR at 480. See also Houchin v. SEIU, Local 49 and Centennial School District, Case No. UP‑37-92, 14 PECBR 395 (1993) (union’s decision to drop grievance was rational and did not violate duty of fair representation).
 
“In Coan and Goar v. City of Portland and Laborers’ International Union of North America, Municipal Employees Local 483, Case Nos. UP-23/24/25/26-86, 10 PECBR 342 (1987), reconsid 10 PECBR 438 (1987), AWOP 93 Or App 780 (1988), complainants alleged that the union unlawfully failed to grieve their terminations. This Board stated that the issue was whether the union business representative’s ‘* * * assessment of Complainants’ contract rights was erroneous, and if so, whether the failure to grieve was due merely to an error in judgment or rather was the result of a decision so lacking in rational basis as to be arbitrary.’ 10 PECBR at 351. This Board stated that the terminations warranted at least the filing of a grievance but concluded that the union’s conduct was not arbitrary. On reconsideration, this Board concluded that the union did not investigate the grievance in a perfunctory manner, noting that the union representative made his decision not to grieve the terminations ‘* * * based on his understanding of the contract and a reasonably thorough knowledge of the facts.’ 10 PECBR at 439-440.
 
“In the private sector, the Ninth Circuit determines whether a union handled a grievance arbitrarily by failing to consider a presumably meritorious argument by considering whether the union ‘(1) has deliberated the alleged meritorious argument * * * and (2) can provide an explanation for its decision not to pursue the argument.’ Slevira v. The Western Sugar Company and Teamsters, Local 190, 200 F3d 1218, 1221 (9th Cir 2000). To pursue that allegation, of course, the affected employee must first prove that he or she asserted a potentially meritorious argument to the union.
 
“Union unintentional acts and omissions. A duty of fair representation complaint also may assert union unintentional acts or omissions. In Ralphs, 14 PECBR at 424, this Board stated that a union violates the duty of fair representation when:
 
“(1)         The act or omission reflects a reckless disregard for the rights of the individual employee.
 
“(2)         The act or omission seriously prejudices the injured employee.
 
“(3)         The policies underlying the duty of fair representation would not be served by shielding the union from liability in the circumstances of the particular case.”
 
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Oregon Revised Statutes 243.672 through 243.676 (pdf)
Unfair Labor Practice Complaint Form (pdf)
Unfair Labor Practice Complaint Form (Microsoft Word)
 
 
Updated October 2012