About one-third of all Canadian workers, and most public sector employees, are members of unions, sometimes by choice and sometimes by legislation. Unions offer greater collective power than an individual generally can marshal for the negotiation and administration of collective agreements. Unionized employees surrender to the union the right to negotiate and contend on all work-related matters with the employer. Such a transfer of power from workers to unions reposes significant responsibility in the hands of the union. Therefore, it is essential that the union represent the best interests of its members. This legal obligation is referred to as the union’s duty of fair representation of the members’ interests.
Legislation on Duties of Unions
Provincial Labour Relations Acts or Codes and the Canada Labour Code (for federally-regulated employees) contain many rules for unions. For example, the Alberta Labour Relations Code prohibits unions from engaging in certain practices, such as using strong-arm tactics (“coercion, intimidation, threats, promises or undue influence of any kind”) against employers, employers’ organizations, other unions and employees (section 151).
The union’s duty to fairly represent its members is also presented in the form of a prohibition in the legislation:
153(1) No trade union or person acting on behalf of a trade union shall deny an employee or former employee who is or was in the bargaining unit the right to be fairly represented by the trade union with respect to the employee’s or former employee’s rights under the collective agreement.
The Canada Labour Code is explicit in both the requirement of a union acting in a manner reflecting a duty of fair representation of any members, …it is essential that the union represent the best interests of its members. This legal obligation is referred to as the union’s duty of fair representation of the members’ interests. or any applicable employees, and in what constitutes fair representation. Section 37 prohibits unions from acting in an arbitrary or discriminatory manner or in bad faith when representing employees under the applicable collective agreement.
The Common Law Meaning of Fair Representation
Like the corresponding duty upon employers to bargain with unions in good faith, the concept of fair representation is difficult to define and very broad. The terms “arbitrary,” “discriminatory,” and “bad faith” are core elements that arbitrators and courts consider in evaluating the duty of fair representation.
We turn now to the two main judicial decisions, both involving federally-regulated workers from Quebec, on the topic of fair representation.
Canadian Merchant Service Guild v. Gagnon et al.,  1 SCR 509
Guy Gagnon, a boat captain, asked his union to file grievances against his employer on the basis of his position transfer. The union proceeded with the grievances through several stages. However, on the basis of a third party recommendation, the union refused to take the grievance to arbitration. Soon after, Gagnon was dismissed. He sued both his employer and his union for damages resulting from his transfer. The issue was the extent to which a union must represent a union member.
The Supreme Court of Canada found in favour of the union and dismissed the claim for damages. It set down the following principles:
1. The exclusive power conferred on a union to act as a spokesman for employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit;
2. The right to take a grievance to arbitration is reserved to the union. The employee does not have an absolute right to arbitration and the union enjoys considerable discretion;
3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other;
4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful; and
5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.
Of key importance is the principle that an employee does not have an absolute right to any advancement of its grievance and the union enjoys considerable discretion.
Noël v. Société d’énergie de la Baie James,  2 SCR 207
Christian Noël, a member of the United Steelworkers of America, was a flight dispatcher at a James Bay airport. After numerous disputes with his employer over several years of service he was dismissed. The Court said, in its duty of fair representation, the union cannot exhibit: bad faith, discrimination, arbitrary conduct or serious negligence. The union took his dismissal grievance to arbitration. The grievances were dismissed and Noël’s termination was upheld. When Noël sought to apply for judicial review of the arbitration award, the union did not support him.
The Supreme Court revisited the extent to which the union is obligated to represent members. The Court said, in its duty of fair representation, the union cannot exhibit: bad faith, discrimination, arbitrary conduct or serious negligence. A union’s bad faith is manifested in the union intending to cause harm, or participating in fraudulent or spiteful conduct. Discriminatory conduct places a member at a disadvantage for reasons unrelated to the concern at hand. Arbitrary conduct and serious negligence refer to procedural treatment of the member’s complaint by the union, basically providing a form of quality assurance for the representation. Since the union pressed Noël’s grievances through the arbitration process, the Court found it performed its duty based on these four factors.
The union’s duty to represent an employee depends on the importance of the grievance. In the case of a dismissal, the union will have to do more than in a reprimand. However, in some cases the union may legally decide not even to proceed with an employee’s grievance at all. Leeway is given to union discretion to protect union interests as a whole, the Court said, so the needs and rights of other employees, and the relationship with the employer are not compromised. Unions cannot be locked into contesting every grievance to the end at the demand of every employee.
Summary of the Duty of Fair Representation
Labour Relations Boards have further developed the duty of fair representation. They look for unions to treat all members of a bargaining unit fairly and with good faith. Unions must carefully examine and investigate the grievance, considering its significance and consequences for the union and the employee. It is arbitrary to give only superficial attention to the facts or matters in issue, or to decide without concern for the employee’s interests.
Favouritism and prejudice should play no part in grievance handling. Unions should consider only relevant lawful matters when deciding whether or not to file or continue grievances. The union representation must be fair, genuine and not merely apparent. The union must act with integrity and competence and without serious negligence. The union must not be hostile towards the employee. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
Labour Relations Boards will uphold the union’s decision if the union investigated the grievance and obtained full details of the case, put its mind to the merits of the claim and made a reasoned judgment about the disposition of the grievance.
Unions hold tremendous power over their members. Membership (or at least payment of dues) is usually mandatory if one wants the job, dues are deducted at source, union rules and discipline can be harsh, member participation in union decision-making is largely an illusion, and unionized employees have no legal right whatsoever to challenge anything their employer does to them without that challenge being accepted and prosecuted by the union. So what does the union owe its members?
The duty of fair representation of its members has been interpreted by the Canadian courts as some “thou shalt nots,” but affirmative duties are minimal. There is little law on what the union must, or should, do. Most law is on what unions must not do. Unions must not act in bad faith, with discrimination, nor in an arbitrary or negligent manner. Union discretion will usually be upheld.