The Propensity to Sue and the Duty of Fair Representation: A Second Point of View

Abstract

AS A lawyer who has on occasion represented clients in duty of fair representation (DFR) litigation and as a scholar who has studied the cause of action empirically (Goldberg 1985), I found quite interesting Thomas Knight's recent article in this journal on the tactical use of the DFR (Knight 1987a). In that article, based on a study of DFR litigation before the British Columbia Labour Relations Board (BCLRB), Knight attempted to demonstrate empirically that recent increases in the volume of DFR litigation can be explained in part by tactical uses of the doctrine contemplated by the doctrine's proponents. These tactical uses, according to Knight, involve the filing of DFR in cases that even the complainants know have no merit (Knight 1987a: 185). Such cases impose significant costs not only on unions and management but on workers with legitimate claims as well, making necessary a consolidation and clarification of the doctrine to discourage frivolous litigation (Knight 1987a: 192). In this response to Professor Knight's article, I will argue that the data and analysis Knight presents do support the policy changes he recommends, and I will suggest that the current parameters of the doctrine, at least in the United States, already make it too difficult for DFR complainants to prevail. I will also high-