Tuesday, 4 February 2020

Defending Your Local - The Duty of Fair Representation

Whether it is your first or hundredth time receiving a notice of a duty of fair representation application (hereinafter “DFR”), there is always that first moment of terror. Questions immediately run through your mind. Did you and your team do everything in your power to ensure that this applicant was fairly represented, did you ensure that you communicated with the potential grievor sufficiently, did you act negligently, etc. The following post discusses the history of DFRs, the Union’s obligations, and preventative measures with respect to the Union’s duty of fair representation. 

What is the Current Legislated Definition of a DFR? 

The Labour Acts in each of the Provinces as well as the Canada Labour Code (federally) has codified the duty of fair representation generally as conduct that is arbitrary, discriminatory or in bad faith with respect to the representation of any employee in the bargaining unit.

For an applicant to be successful they must prove that the Union conducted themselves in a manner that was arbitrary, discriminatory or in bad faith.  

Arbitrary conduct has been described as a failure to direct one's mind to the merits of the matter, or to inquire into or to act on available evidence, or to conduct any meaningful investigation to obtain the data to justify a decision. It has also been described as acting on the basis of irrelevant factors or principles, or displaying an attitude which is indifferent and summary, or capricious and non-caring or perfunctory. 

Boards have held that the term "discriminatory" is to be given a broad interpretation that encompasses all cases where the Union distinguishes among its members without cogent reasons. The prohibition functions to prevent a Union from distinguishing among members in the bargaining unit, unless there are good reasons for doing so. The duty requires, in general, that like situations be treated in a like manner and that neither particular favour nor disfavor befall any individual apart from the others unless justified by the circumstances.

Bad faith in the context of processing grievances has been described as acting on the basis of hostility or ill-will, dealing dishonestly with the griever in an attempt to deceive, or refusing to process the grievance for sinister purposes. A knowing misrepresentation constitutes bad faith, as does concealing matters from the complainant and failing to provide counsel with all the relevant information upon which to base a legal opinion and also failing to properly consider the legal advice.

Preventative Action

Know your rights as a Union executive member!

The best way to prevent your Union from falling victim to an unjust DFR complaint is education. Knowing your rights as well as the rights of the Grievor is one of the best methods for avoiding costly litigation and a DFR. Understand your duty of fair representation, know when you should pursue a grievance and when you have the grounds to drop it.

The following are examples of best practices with respect to handling grievances to help minimize exposure to a DFR application:

-       The Union should consider all grievances on the merits regardless of personal feelings toward the Grievor;
-       The Union should always investigate the grievance thoroughly;
-       The Union should process the grievance promptly. This involves keeping a keen eye on time limits making sure not to miss any. These time limits are normally found in the grievance and arbitration procedure within the collective agreement; 
-       The Union should take meticulous notes and keep written records of all meetings and investigations; 
-       The Union should strive to keep the Grievor informed at all times. This includes promptly informing the Grievor if the Union does not intend to pursue the grievance;
-       If the Union decides not to pursue a grievance, the Union needs to have a valid reason to explain their decision;
-       The Union must treat all members of the bargaining unit the same regardless of race, sex, gender, religion, etc. 
-       The Union needs to know that they own carriage of the grievance and after investigating, if the grievance clearly lacks merit and cannot be won, it is within their right to drop it.

Lately we’ve seen a barrage of DFR complaints against Unions. Over the past few years, however, Watson Labour Lawyers has been able to get every case dismissed for our clients. That being said, the Board is taking a hard line with respect to DFR complaints and appears to be sending a message that these complaints should always be taken seriously. 

If you have any such issues, please do not hesitate to contact us as time is always of the essence when defending yourself or your union against DFR complaints. 

The History 

For those of you who are interested, a trade union's duty of fair representation originated within the courts of the United States. In 1944, in the case of Steel v. Louisville & Nashville Railroad Co. 323 U.S. 192, the duty of fair representation was defined as “the duty to represent all employees in the bargaining unit without hostile discrimination, fairly, impartially, and in good faith”. In 1971, that DFR was codified in the provinces and federally.

When first codified, the Board initially interpreted the legislation as a means of traditional litigation against the Union by a disparaged employee. Therefore, if a Union was found to have breached their DFR as per the legislated definition, damages were awarded as the remedy. Damages were calculated based on the Board’s own assessment of the merits of the employee’s grievance[1]. This remedy, however, did not appropriately address the employee’s concerns, as for most employees, the prospect of having a suspension removed or being reinstated was more valuable than any sum of damages. As such, in or about 1973, the Board shifted their paradigm with respect to remedies, from traditional litigation to labour relations. With such a change arose a remedy that was more corrective and less punitive. This change can be seen in Imperial Tobacco Products, [1974] OLRB Rep. July 418, in which the Board discussed that the intention behind the DFR should be given a wide and liberal interpretation in order to ensure that the Board's remedial powers remain meaningful and effective (instead of being purely punitive; such as sending a grievance to arbitration in the place of awarding damages). 

Fast forward to present day, the most common award at the Board with respect to a successful DFR against a Union is for the grievance to be sent to arbitration, with all expenses paid by the Union. Further and in addition, a Grievor who files a successful DFR will likely be able to choose their own counsel, once again, at the expense of the Union. 

Seminars And Educationals

Watson Labour Lawyers offers first-class educationals and training seminars on matters of labour relations, including those pertaining specifically to the duty of fair representation; grievance and arbitration procedures; and note taking. Additionally, we are always open to customize programs based on your membership’s wants and needs. Please contact us for more information.


[1] Rutherford's Dairy Limited, [1972] OLRB Rep. Mar. 240, Alfred Compton, [1972] OLRB Rep. Oct. 916

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