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INFORMATION BULLETIN |
#18 THE DUTY OF FAIR REPRESENTATION
I. INTRODUCTION
When a union becomes the exclusive bargaining agent for a unit of employees, it normally negotiates a collective agreement with the employer. Unions enforce collective agreements by filing grievances - often on behalf of individual employees. Grievances allege the employer has violated the terms of the agreement. If a grievance cannot be resolved, a union may choose to take a grievance to arbitration. See: Section 153.
Unions have a large amount of discretion when they deal with grievances. For example, unions may settle or drop grievances even if the affected employee disagrees. To counterbalance this power, the Labour Relations Code requires unions to fairly treat all members of a bargaining unit.
This duty of fair representation requires unions to act in good faith. This means unions may not act arbitrarily or discriminatorily. Employees or former employees who feel their union has not fairly represented them cannot bring court action. Instead, they may file a duty of fair representation complaint with the Labour Relations Board. Unions covered by the Public Service Employee Relations Act have a similar obligation under common law that is enforced through the courts.
When a complaint is made, the Labour Relations Board examines the fairness of the union’s conduct. The question before the Board in these is, did the union deal fairly with the employee’s grievance? This is an examination of the union’s behaviour - not an appeal of the union’s decision. Grievances are dealt with through the grievance and arbitration process outlined in the collective agreement.
The Board does not have the power to rule on the employee’s grievance. It is, however, often necessary for the Board to review and understand the facts of a grievance. This is because the Board must assess whether the union’s investigation reflected the worthiness and seriousness of the employee’s case. Again, this is an examination of the union’s behaviour and not an appeal of the union’s decision.
If the Board finds that the union has breached the duty of fair representation, it can order a number of remedies. These include extending the timelines of the grievance process, giving a declaration that the union breached its duty, or awarding damages. This Bulletin explains the duty of fair representation. It then explores how complaints are filed and resolved.
II. THE DUTY OF FAIR REPRESENTATION
The Labour Relations Code requires unions to fairly represent all employees in a bargaining unit. This is called the duty of fair representation. The Supreme Court of Canada has set the principal features of the duty in five points:
·
The exclusive power conferred on a union to act
as spokesperson for the employees in a bargaining unit entails a corresponding
obligation on the union to fairly represent employees comprised in the unit.
·
When… 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.
·
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 for the union on the other.
·
The union’s decision must not be arbitrary,
capricious, discriminatory or wrongful.
·
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.
See: Noel
v. Societe d’energie de la Bate James. [2001] S.C.J. Decision No. 41; Canadian
Merchant Service Guild v. Gagnon [1984] 84 CLLC 14,043 (S.C.C.); Darius L’Heureux v. CSU
52 and the City of Edmonton [1993] Alta.L.R.B.R. 556; Rita Vickers et al. v.
HSAA and the University of Alberta Hospitals [1997] Alta.L.R.B.R.
11.
In essence, this means unions have a large amount of discretion when they deal with grievances. For example, unions may settle or drop grievances even if the affected employee disagrees. To counterbalance this power, the Labour Relations Code requires unions to fairly treat all members of a bargaining unit. This duty of fair representation requires unions to exercise this power in good faith. This usually means unions must carefully examine grievances. The union must also consider the significance of the case and its consequences for the union and the employee. The representation by the union must be fair, genuine and not merely apparent. The union must act with integrity and competence as well as without serious or major negligence. The union must act without hostility towards the employee. This also means the union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
The duty of fair representation involves rights and obligations for both trade unions and employees. These are explained below.
III. EMPLOYEES’ RESPONSIBILITIES
Employees must protect their own interests. Employees do this by filing grievances, co-operating with the union, and minimizing their losses. If employees do not protect their own interests, claims of a breach of the duty of fair representation may not succeed.
Employees must follow the grievance procedure in the collective agreement. They must report the problem to the union and co-operate with the union. In most collective agreements, employees do not have the absolute right to have grievances taken to arbitration. A union normally has the right to settle or drop a grievance even if the individual grievor disagrees. This is so even in discipline and discharge cases. The union has the right to make these decisions but must do so according to the considerations set out above.
Employees must act to minimize their losses. This means they must do everything required of them in pursuing their grievance. They must not sit on any rights they have that would advance their cases. They must, if they suffer losses, take reasonable steps to minimize those losses. For example, they must seek new employment if they are dismissed. A Board order for compensation will be for actual losses. This means losses that the complainant could not avoid by taking reasonable steps to protect his or her own interest. The Code protects unions from losses caused by the employee’s own conduct. See: Section 153(2)(b).
IV.
THE UNION ’S
DUTIES
Unions must consider several things when making decisions about grievances.
Union’s Discretion in Handling
Grievances
Many complaints allege that a union arbitrarily abandoned or
settled a grievance. There is no exhaustive list of items that unions must
consider in deciding whether or not to take a grievance to arbitration. The
following extract from a
The judgment in particular cases depends on the cumulative effect of several relevant features: how critical is the subject matter of the grievance to the interest of the employee concerned? How much validity does (the employee’s) claim appear to have, either under the language of the agreement or the available evidence of what has occurred, and how carefully has the union investigated these? What has been the previous practice respecting this type of case and what expectations does the employee reasonably have for the treatment of earlier grievances? What contrary interest of other employees or of the bargaining unit as a whole have led the union to take a position against the grievor and how much weight should be attached to them? See: Rayonier Canada Ltd. [1975] 2 Can. L.R.B.R. 196 at 204 (B.C.L.R.B.).
A union should address these questions when deciding to abandon or settle a grievance.
Unions Must Avoid Ill
Will
Decisions must not be motivated by ill will. Union officers
must not let personal feelings influence whether or how to pursue a grievance.
Decisions influenced by personal hostility, revenge or dishonesty may violate
the Code.
Unions Must Not
Discriminate
A union must fairly represent all employees in a bargaining
unit. This means a union must not discriminate on the basis of union membership
and factors such as, race, religion, sex or age should not influence the way a
union handles a grievance. Each member should receive individual treatment.
Favouritism and prejudice should play no part in grievance handling. Unions
should consider only relevant and lawful matters when deciding whether or not to
file or continue grievances.
Unions Must Not be
Arbitrary
In deciding whether or not to pursue a grievance, a union
must avoid arbitrary, capricious, discriminatory or wrongful conduct. It must
not act in bad faith.
It is arbitrary to give only superficial attention to the facts or matters in issue. It is arbitrary to decide without concern for the employee’s needs and interests. See: W. Litousky and HSAA [1996] Alta.L.R.B.R. 480 and [1997] Alta.L.R.B.R. 255 and HSAA v. Labour Relations Board and W. Litousky [1997] Alta.L.R.B.R. (QB) 591; D. L'Heureux v. CSU 52 and City of Edmonton [1991] Alta.L.R.B.R. 736 and [1993] Alta.L.R.B.R. 556 and [1994] Alta.L.R.B.R. 150 - quashed on other grounds.
It is arbitrary not to investigate.
It is arbitrary to make no effort to discover the circumstances surrounding a grievance. It is arbitrary to fail to assess the merits of an employee’s grievance.
A union should thoroughly investigate all of the facts and evaluate the probable outcome of arbitration before deciding to abandon or settle a grievance. This includes a review of the merits of the grievance and of arbitration decisions for similar grievances. This becomes more important where an employee faces serious discipline or dismissal, particularly a senior employee.
Union officials can make honest mistakes. Proof that a union has acted negligently in the handling of a grievance or complaint does not necessarily amount to arbitrary conduct. A union can also wrongly assess a grievance, yet not act arbitrarily.
The Board will uphold the union’s decision if it concludes that the union:
·
investigated the grievance and obtained full
details of the case, including the employee’s side of the story;
·
put its mind to the merits of the claim; and
·
made a reasoned judgment about the disposition of
the grievance.
A union can fulfill its duty by taking a reasonable view of
the grievance. This means it must consider all of the facts surrounding the
grievance. It must weigh the conflicting interests of the union and the
employee. It should then make a thoughtful judgment about the grievance.
Union’s Right to Consider Other
Factors
A union can consider legitimate factors other than the
grievor’s interests. For example, the union may have promised the employer that
it would not advance a particular interpretation of the contract. Or the union
may be concerned that a victory would have an adverse effect on the other
employees in the unit. A union may also decide that cost of achieving the
resolution the grievor seeks is too high given the issue at hand. The union must
weigh these factors fairly against the wishes of the grievor.
Sometimes conflict arises between the interests of a grievor
and the bargaining unit. For example, unions and employers may settle an ongoing
grievance in exchange for bargaining concessions. This is not forbidden. It may,
however, amount to unfair conduct if the grievance concerns serious discipline
or dismissal. See: Centre Hospitalier
Unions Need Not Hire
Counsel
A union may use its own staff to arbitrate a grievance. A
union with adequate internal resources does not have to hire a lawyer.
The Board rarely examines union conduct at arbitration. Usually it does so only in cases involving major abuse or bad faith. Arbitrators are primarily responsible for the conduct in a hearing.
Union’s Handling of Conflicting
Grievances
Often the rights of the grievor will conflict with the rights
of other bargaining unit members. This often occurs in cases involving seniority
rights on promotion or layoff. It also happens in cases involving a
reinstatement that triggers the displacement of another employee.
In deciding whether or not to arbitrate such grievances, the
union must act fairly. If it has done so, the union need not represent each
affected employee.
Union’s Duty to Advise Employees of
Hearings
The union must advise all employees of any hearings that may
affect their positions. It must clearly tell them that they can attend and can
have their own representative. The attendance of such a representative is
subject to the decision of the arbitrator. The union need not provide a
representative for the employee. A union is not required to pay for any
representative the employees choose for themselves.
V.
UNION ’S
RESPONSIBILITIES OUTSIDE OF THE COLLECTIVE AGREEMENT
The duty of fair representation is not the only factor governing a union’s relationship with the employees it represents. An employee may have rights flowing from the union’s constitution or rules, from other statutes and from other sections of the Labour Relations Code. These matters lie outside the Board’s jurisdiction over the duty of fair representation. See: Human Rights, Citizenship and Multiculturalism Act.
Union Constitution or
Rules
Hiring hall rights usually stem from union hiring hall rules.
These rules are not usually part of a collective agreement. In these cases, the
matter lies outside the Board’s jurisdiction over the duty of fair
representation.
Other Statutes
Other statutes also may bind unions and employees. For
example, the Human Rights, Citizenship and Multiculturalism Act prohibits certain forms
of discrimination. Complaints about these forms of discrimination should be
directed to the Alberta Human Rights Commission.
The Workers’ Compensation Act gives employees rights. These rights stem from this Act and not a collective agreement. Unions often help employees with workers’ compensation claims. They are not, however, obligated to assist employees by the Labour Relations Code. This is because these rights do not arise from the collective agreement. The only exception may be in relation to supplementary workers’ compensation benefits outlined in the collective agreement.
Other Sections of the Labour Relations
Code
Sections 151(h)(i) and 152 of the Labour Relations Code
address issues of union discipline and the fair application of union rules.
Employees may file unfair labour practice complaints with the Board against
trade unions under these sections. For more information contact the Board
offices. See: Sections 151(h)(i), 152.
Legal or Professional
Charges
Unions are not required to pursue issues not covered in a
collective agreement. For example, unions do not have to pay for a lawyer to
represent employees facing criminal charges. This also applies to
employment-related lawsuits, professional discipline proceedings or fatality
inquiries.
Collective Bargaining
Process
Unions are not bound by the duty of fair representation
during negotiations. Negotiations may lead to decisions some employees see as
against their interests. In these cases, the matter lies outside the Board’s
jurisdiction. Employees may be able to sue a union in the Courts for unfair
representation at the collective bargaining stage. Whether negotiating could
involve union liability would be a Court, not a Labour Board, matter. See: Gendron v. Supply & Services Union 90 CLLC
14,020 (S.C.C.); Rita
Vickers et al. v. HSAA and the University of Alberta Hospitals [1997]
Alta.L.R.B.R. 11.
VI. INTERNAL UNION PROCEDURES
When the Board hears a duty of fair representation complaint, it reviews the union’s procedures for fairness. A union can reduce its potential liability by taking some simple steps.
Training
Training grievance-handlers decreases the chance of breaching
the union’s duty. Shop stewards, business agents, and grievance committees
should all fully understand their grievance procedures and their duty of fair
representation.
Allowing Grievors to Address the Decision
Makers
Some unions have the local membership decide whether to
arbitrate or abandon grievances. Grievors should have a chance to address the
membership before a decision is made.
Keeping Records
Records of how a grievance has been dealt with are useful,
particularly when the union is responsible for starting the grievance under the
collective agreement. If employees decide not to file a grievance, it is useful
to have them make a statement to that effect. This provides a record in case the
employees later change their minds.
Dealing With Time
Limits
A union should make a reasonable effort to inform employees
of time limits. Extensions should be applied for if it is not possible to meet a
time limit. The Board may hold accountable unions that do not seek extensions
(especially where extensions are provided for in a collective agreement). All
extensions should be confirmed in writing. The Board may not hold a union
accountable where its failure to act was not deliberate.
Internal Appeal
Procedures
An effective internal appeal mechanism reduces complaints.
The use of appeal mechanisms is not mandatory. The Board will not automatically
dismiss cases because the grievor has not followed an available internal appeal
route.
Independent Advice
Unions uncertain about how to proceed often seek advice from
a lawyer or other person. Some unions find this option saves the expense of an
arbitration hearing or of defending their actions before the Board.
VII. FILING A COMPLAINT
Duty of fair representation complaints generally follow a seven-step process:
1.
A complaint is filed by an
employee or former employee.
2.
The complaint is reviewed to
determine if it contains adequate particulars and might amount to a breach of
Section 153 of the Labour Relations Code.
Complaints that do not appear to violate this section are not accepted.
3.
If a complaint is accepted, a
Board Officer contacts the parties involved and asks for responses.
4.
Board staff and/or members may
attempt to resolve the dispute informally.
5.
A Board Officer may investigate
the complaint. The Officer may write a report outlining the facts and/or ask the
parties for additional information.
6.
An administrative panel of the
Board conducts a documentary review. The panel assesses the case based upon the
documents received to decide if it appears to have merit. If not, the complaint
is dismissed.
7.
If the administrative panel
decides the complaint appears to have merit, a Board hearing is scheduled. At
the hearing, each party presents evidence that supports its case. Evidence
includes testimony from witnesses and documents related to the complaint.
Sometimes past Board decisions are presented to demonstrate how the Board has
handled similar cases. The members of the panel hearing the application may ask
questions of those present at the hearing. The panel leaves the hearing and
makes a decision in private. Most decisions are made public within 90 days of
the hearing.
A complaint may be withdrawn at any time. This section provides additional information about how complaints are filed and processed.
Deadlines
Complaints must be filed within 90
days of when the complainant knew or ought to have known of the actions
or circumstances causing the complaint. Complaints filed after this 90-day
period must include the reasons for filing late. See: Section
16(2); Don MacDonald v. CUPE
Locals 709 & 37 and City of Calgary [1995] Alta.L.R.B.R.
340; Vijay Gulerya v. ATU
[1994] Alta.L.R.B.R. 495.
Filing a Complaint
Employees can file their complaint by writing a letter or
filling out a form available from the Board. The complaint must include:
·
the name, address and telephone number of the
employee;
·
the name, address and telephone number of the
employee’s lawyer, if any;
·
the name, local number, address and telephone
number of the union;
·
the name, address, and telephone number of the
employer;
·
the section of the Labour Relations Code
complained under;
·
the nature of the grievance;
·
the details of when, how and why the employee
believes the union has failed in its representation;
·
the names of any union officials involved;
·
the names of any other employee affected by the
union’s actions;
·
a statement of the relief the employee seeks,
including any request of extended time limits that might affect the employer;
and
·
copies of any documents the complainant intends
to rely upon during a hearing.
See: Rules of
Procedure, Rule 6.
The applications must be accompanied by a statement confirming the application has been served on any parties known to be affected by the proceeding (such as the union, a person acting for a union, and the employer) or subsequently added by the Board. See: Rules of Procedure, Rule 5.1; Bulletin 2.
Once a complaint is filed, the Director of Settlement reviews it. The Director is an employee of the Board. The Board also employs a number of Officers. All Board employees are impartial and act to assist the Board in understanding and processing a complaint. The Board’s staff does not advocate on the behalf of employees, unions or employers. See: Rules of Procedure, Rules 22, 29; Bulletin 2.
The Director reviews each complaint for two reasons. First, the Director ensures each complaint is complete. Second, the Director evaluates the allegations to determine if they might amount to a breach of Section 153. If so, the Director accepts the complaint and a letter is sent to all affected parties requesting a response. Unions often respond by, for example, outlining the steps they took when handling the grievance and provide a copy of the relevant collective agreement as well as any documents they intend to rely upon during any hearing. Employers are alerted because they may be affected by any remedy the Board orders.
The Union's Reply
It is essential that unions provide a comprehensive reply to any duty of fair representation complaint to ensure a fair and efficient handling of the complaint. This reply should include a detailed review of the factual history surrounding the complaint with a view to demonstrating the union has exercised its discretion in dealing with its members’ concerns in good faith, objectively and honestly, after a thorough study of the grievance and the case, and taking into account the significance of the grievance and its consequences for both the employee and the union.
The factual history should include how and when the union became aware of the complainant’s concerns; what steps the union took to investigate and evaluate the complaint; what steps it took, if any, to attempt to resolve the matter; the reasons for reaching the conclusions it did on how to handle the complainant’s concerns; and the steps it took to communicate with the complainant to ensure he or she remained informed as this process unfolded.
A proper review of the facts at this stage is particularly important in cases where the union is seeking to have the complaint summarily dismissed at the document review stage. Simply put, the Board will only be able to reach the conclusion a matter should be summarily dismissed where it is comfortable it fully understands the facts of the case and is confident the union has met it obligations to fairly represent its members.
Dispute Resolution
The Director recommends a dispute resolution procedure.
Dispute resolution is designed to resolve a complaint before a hearing. This can
entail the parties attending a settlement meeting with a Board Officer.
Alternately, the parties may be asked to attend a resolution conference held by
a Chair or Vice-Chair.
These meetings allow both sides to have their concerns heard and may fully or partly resolve a complaint. Confidential resolution conferences also give both sides a chance to hear the opinion of a Board member as to the likely outcome of their complaint should it progress to a full hearing. If the matter goes to a full hearing, the information provided and opinions expressed in the resolution conference are not shared without the agreement of both parties. This confidentiality encourages frank discussion about the complaint. See: Section 11; Rules of Procedure, Rules 22, 23, 30-33.
A Board Officer may also investigate a complaint. An Officer’s report sets out the facts surrounding the complaint. This report is provided to everyone involved in the complaint. Anyone involved in the proceedings may object to the contents of the report. Objections must be sent to the Board and the other parties within the time limits set out by the Director of Settlement. If the objecting party does not follow this procedure, the Board may proceed without considering the objections. See: Rules of Procedure, Rule 26;Bulletin 3.
Documentary Review, Board Hearings and
Decisions
If resolution is not possible, the matter is usually sent to
a documentary review panel. This panel decides whether a complaint should
proceed to a full Board hearing or be dismissed. The panel considers only the
documentation that has been filed by the parties. All parties are advised when a
file is being sent to documentary review and have an opportunity to provide
further written submissions.
Complaints that appear to be without merit or appear to be
frivolous, trivial or vexatious are normally dismissed. If the documentary
review panel decides the case appears to have merit, a formal hearing may be
held. Hearings normally take place in the Board offices in
At the hearing, each party presents evidence to support its case. This includes testimony from witnesses. The Board has the power to compel witnesses to attend and require the production of documents. Documents related to the complaint may also be introduced.
The parties use this evidence to make arguments. Sometimes,
past decisions of labour boards are also presented. These decisions are used to
demonstrate how other boards have handled similar cases. These cases are
available at the Labour Library in
Often, a party will hire a lawyer to represent it at these hearings. A lawyer is not required but legal knowledge and experience may be useful in successfully making a case that a union has violated it duty of fair representation.
Once the hearing is over, the panel leaves the room. The decision is made in private. Most decisions are made public within 90 days of the hearing. Often, the Board will discuss the evidence presented in the case in its written decision. Parties should be aware that the Board publishes these decisions and, therefore, the evidence submitted may become public knowledge.
VIII. REMEDIES
Each complaint must contain the remedy sought by the employee. The Labour Relations Code allows the Board only to review the fairness of the union’s conduct. It does not allow an appeal of the union’s decision on a grievance. It also does not give the Board the power to rule on the employee’s grievance.
If the Board finds a breach of a union’s duty, it can remedy the matter. The Board can extend the time limits of the grievance procedure. The Board can also give a declaration the union violated its duty, or award damages. For the Board to overrule mandatory time limits outlined in a collective agreement, it must be satisfied that:
1.
there is a loss of employment or substantial amounts of
work by the complainant;
2.
there are reasonable grounds for the extension; and
3.
substantial prejudice will not flow to the employer.
See: Section
153(3).
What the grievor has lost may only be the right to have the grievance heard and determined. It is not necessarily everything claimed in the grievance. This is particularly so where the complaint is about a mishandled or abandoned grievance.
When the Board assesses the loss suffered it looks at the
chances of the grievance having succeeded. This means the Board may have to
consider the merits of the original grievance.
In determining the extent of any loss suffered, the Board
considers the employee’s effort to minimize that loss.
The Board’s power to redress a complaint does not include the
power to award punitive damages. It cannot award monies for emotional damages or
unspecified general damages.
See also:
Information Bulletins 1, 2, 3 and
4
Rules of Procedure
For further information or answers to any questions regarding this or any other Information Bulletin please contact:
Director of Settlement
Labour Relations Board
501, 10808 99 Avenue
Telephone: (780)
422-5926
Manager of Settlement
Labour Relations Board
308, 1212 31 Avenue NE
Telephone: (403)
297-4334
Email: alrbinfo@gov.ab.ca
Website: alrb.gov.ab.ca