The Duty of Unions to Fairly Represent Their Members - LawNow Magazine

The Duty of Unions to Fairly Represent Their Members

Employment Law ColumnIntroduction: plight of the unionized worker

The average unionized worker is in a weak position at work. In many workplaces he will, as a condition of employment, be required to join the existing union. Or he may have been out-voted in the decision to unionize. Bringing serious concerns and directly accessing the employer is hampered by labour-management formalities. Technically, only union stewards can broker concerns and communications with bosses.

Workers are generally stuck with their union, much in the same way that they are stuck with their federal and provincial governments. They may find that their one voice and one vote carry no sway in influencing union leadership, governance, collective bargaining and other decisions. Workers are captive to their unions unilaterally deducting hundreds, or thousands, of dollars from their earnings each year. Workers and unions are analogous to citizens electing and submitting to government. Yet, one’s relationships and conditions at work are much more intensely personal than citizenship in a territory.

One can also understand the union’s duty in terms of what it should not do. It should not be negligent or motivated by favouritism, unlawful discrimination, irrelevancies, bad faith, ill will or personal hostility. If the employer violates the law or collective agreement, only the union can challenge that. Individual workers have no standing in court to complain of mistreatment or wrongful dismissal by the employer. They are totally dependent upon the union, the “exclusive agent” – its good faith and competence – to take up and effectively prosecute grievances against employers. How can workers ensure their unions fairly and effectively represent them?

The good news is that the union has some accountability. This is found in the doctrine of “duty of fair representation”, which is the topic of this article.

Duty of Fair Representation

The Collective Agreement is the contract between the worker and employer. It can only be enforced by unions filing grievances on behalf of individual workers, alleging an employer breach of some kind or challenging the employer’s discipline.

There are several stages through which the parties move in any grievance process, the goal of which is always to resolve the concern. Ultimately, the union may have to take a grievance to arbitration which can be costly in terms of time, effort and resources.

Unions typically have significant discretion in whether to file and how to progress the grievance, regardless of the affected worker’s preferences. Given this power over the worker, the Labour Relations Code requires unions to treat all the workers it represents fairly.

The Supreme Court of Canada, in the 1984 decision Canadian Merchant Service Guild v. Gagnon and again in 2001 in Noel v. Societe d’energie de la Baie James, along with a number of provincial labour relations board decisions, has set out the parameters of this union duty of fair representation. Fair representation mostly requires unions to act in good faith to investigate and understand the relevant facts and issues of the case, as well as its significance and impact on the worker. Only then can it properly assess and balance the merits of the grievance.

Workers, other than those covered by the Public Service Employee Relations Act, whose unions have not fairly represented them cannot sue them in court.The union must act objectively and honestly, and thoroughly review the matter. Its response must take into account the facts of the case, its significance (for example, a dismissal is more significant than a reprimand), consequences for both worker and union, and probable outcomes. It should apply for an extension of deadlines if this is permitted and appropriate.

The union’s representation must be “fair, genuine and not merely apparent, undertaken with integrity and competence”. Ultimately, the worker has no absolute right to a grievance or an arbitration. The union need not inform the worker of meetings, but the worker must be informed, and be permitted to attend, any grievance hearings.

One can also understand the union’s duty in terms of what it should not do. It should not be negligent or motivated by favouritism, unlawful discrimination, irrelevancies, bad faith, ill will or personal hostility. Union decisions cannot be arbitrary. If the union has an LRB-approved internal appeal mechanism of the grievance officer’s decisions and actions, it should be used.

Taking Your Union to the Labour Relations Board

Workers, other than those covered by the Public Service Employee Relations Act, whose unions have not fairly represented them cannot sue them in court. They have an easier, faster and cheaper recourse option – file a complaint with the Labour Relations Board (LRB) where the fairness of the union’s response will be reviewed. Technically, there is a difference between second-guessing or appealing what decision(s) the union made and how the union approached the case (the focus of the LRB review). Collective bargaining negotiations are separate from this fair representation complaint process.

Fair representation mostly requires unions to act in good faith to investigate and understand the relevant facts and issues of the case, as well as its significance and impact on the worker. Only then can it properly assess and balance the merits of the grievance.Workers must file their complaint to the Alberta LRB within 90 days of the union’s decision or 45 days from being notified of the outcome of an appeal. The complaint form and procedure are online and the LRB has prepared a very helpful and comprehensive Information Bulletin #18 to guide workers through the review process when complaining about their union’s representation of their interests.

Once the complaint is filed on time, and is judged to fit within the fair representation realm, the LRB may attempt to resolve the dispute informally or strike a panel to do a review of documents and submissions from both sides. If the complaint has no merit, it is dismissed. If it appears to have merit, the matter proceeds to a LRB hearing where worker and union present their cases.

LRB Remedies for the Union’s Unfair Representation

When the Board concludes the union has breached the duty of fair representation, it can extend the time to grieve (where a grievance was not advanced) or order compensation for actual losses or damages against the union.

Conclusion

Our work touches upon our dignity, ambitions, social interactions, physical and emotional well-being, reputation, economic security and our inherent value as human beings – every aspect of our life fulfillment. It is very important that unions, as exclusive agents, be responsive and effective advocates for the workers in their bargaining unit against improper employer behaviour.

While unions must necessarily enjoy considerable discretion to decide whether to prosecute a worker’s grievance against the employer and how far to press it, they must act fairly. If a worker does not believe the union has treated her concern fairly, she can bring take the union to the Labour Relations Board as a fair representation complaint.

The process is streamlined, relatively low stress, without fees and efficient. Most workers should be able to handle these complaints themselves.

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 


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