It is incumbent on United States labor unions that are the exclusive bargaining representative of workers, to represent every workers in appropriate unit “fairly, impartially, and in good faith.” This obligation is called the Duty of Fair Representation. This duty is not based on any positive law, but is recognized by legal cases through interpretation of Railway Labor Act and National Labor Relations Act, which prescribe the exclusive representation. The duty of fair representation is not imposed on employers but only to representative labor unions. There are two types of breach of the duty: breach by discrimination and breach by bad faith. Breach by discrimination can be further categorized into one based on by race or sex, and one based on union membership. However, discrimination based on race, sex, or national origin only violates Title Ⅶ of the Civil Rights Act, and it does not violate NLRA. Therefore only discrimination based on union membership can be brought to NLRB as unfair labor practices according to NLRA.
On breach of the duty by bad faith, it does not constitute a breach of duty merely because the a union brought unfavorable result to some members.. Federal Supreme Court recognized the representative union’s discretion within reasonableness, and the union’s action has to be so far out of “wide range of reasonableness” to be irrational.
Representative union’s breach of the duty of fair representation can constitute an unfair labor practice in terms of NLRA. However Federal Supreme Court held that because breach of the duty is not classified as unfair labor practice, it is not required to meet prerequisite for unfair labor practices to constitute a breach of the duty. Although criteria for breach the duty and criteria for unfair labor practice differ, there are cases that constitute both. Even if a breach of the duty amounts to an unfair labor practice, the jurisdiction of federal courts does not vanish.
The duty of fair representation in United States offers following implications for South Korea. First, Trade Union and Labor Relations Adjustment Act (Act) of Korea burdens the duty of fair representation to both unions and employers, but US only imposes it to unions, not employers. Secondly, Article 29-4 Clause 1 of the Act prescribes the duty of fair representation as “shall not discriminate ... without any reasonable grounds.” It is unclear whether bargaining in bad faith constitutes a breach of the duty here, while it is seen as a breach in United States. Thirdly, the Act needs to present different criteria for breach of the duty and unfair labor practices, similar to United States, and separate cases into “breach of the duty but not an unfair labor practice”, “breach of the duty and an unfair labor practice”, and “not breach of the duty but still an unfair labor practice.”