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The Straight Goods on the Duty of Fair Representation

part 1.

"A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be". 1995, c. 1, Sched. A, s. 74.

This is the Duty of Fair Representation as set out in the Ontario Labour Relations Act. It requires unions to act fairly when representing their members. Similar "DFR" legislation exists in other Canadian jurisdictions (provinces). In the US, a similar principle has evolved from NLRB case law. The premise behind DFR is that, once certified, a union has complete authority to act on its members' behalf and to make decisions that have a significant impact on their lives. Given this high level of decision-making authority, it is only fair that the union exercise its authority fairly.

DFR in Theory

Those who don't know a whole lot about DFR - including most union members - believe that it provides union members with a guarantee of good representation by their union and its officials. It's commonly believed that DFR requires the union to put its members' interests first and that it provides members with recourse (a place to go for help) in the event that those interests - individually or collectively - are not being served. It's believed, for instance, that DFR protects members' interests during collective bargaining, that it forces unions to consult extensively with their members on issues that affect them, that it requires unions to adopt democratic internal procedures, that it protects members from intimidation and coercion by union officials and helps keep unions free of corruption. Union organizers often refer potential members to DFR legislation to assure them that they will get good service. Union leaders speak of it, officially, with reverence. Politicians, law enforcement officials, academics and just about anyone else with an interest in organized labour believe it keeps unions democratic and help prevent corruption. This is an excerpt about DFR legislation from a textbook used in the administrative studies program at a major Canadian university:

One reason why [corrupt] labour leaders ... have been rare in Canada may be most Canadian jurisdictions' duty-of-fair-representation provisions - something that does not exist in American legislation. The possibility of an aggrieved member taking the union before the labour board very likely acts as a brake on seriously undemocratic union conduct. In contrast, under a system where a members' only recourse is a cumbersome internal review procedure, followed by the courts, leaders might be more willing to engage in undemocratic behavior, knowing there is little likelihood they will be called to account. Canadian Industrial Relations, Jon Pierce, 2000, page 182

This is how DFR is understood - or misunderstood - by just about everyone who doesn't know much about it.

...and Practice

Those who are familiar with DFR and how it is administered know that nothing could be further from the truth. The sad reality is that Canadian DFR legislation provides union members with nothing beyond an assurance that their union will consider issues of its members that relate to the interpretation of their collective agreement. What this means is that a union is required to consider filing a grievance where a member believes his or her rights under a collective agreement have been breached. Note that consider is the operative word. Beyond considering its members' issues, the law requires nothing further from unions. The Duty of Fair Representation applies to a narrow range of situations, members who want to pursue complaints must do so at their own expense, the legislation is interpreted such that it's almost impossible for a union member to win and the legislation is as toothless as it is misunderstood. Let's set the record straight.

What it's all about: Mostly grievances

As we have already stated, DFR legislation only applies to a very narrow range of representation issues - primarily, those that involve the filing and processing of grievances. DFR legislation does not apply to undemocratic governance, corruption, misuse of union funds, refusal to provide information (other than a financial statement), backroom deals or any other such activities. Workers who wish to address these kinds of issues have recourse only through the union's internal process and after that, the courts. So - if their union is run by crooks, if their dues are being squandered, if they haven't had an election since anyone can remember, if their local isn't complying with the national or international constitution - union members have nowhere to turn except civil litigation, something that can take years and which few union members can afford in any event.

Even when it comes to filing grievances, DFR doesn't provide union members with much. Provincial legislation gives unions control over virtually every aspect of the grievance process. Unless a union's constitution gives a member the right to initiate a grievance, a member has no such right. A member who believes that his or her rights have been breached can bring this to the union's attention, but it's the union that makes the decision to file or not file the grievance. The reason that this is OK is that the right to file a grievance flows from the collective agreement (from the article that provides for a grievance procedure). The collective agreement is between the employer and the union. Union members themselves are not parties to the agreement and so, can't exercise a right provided under the agreement directly. The union does that on their behalf - where and when it chooses.

Some union constitutions give members the right to file grievances but, in all but a few cases, the union retains control or carriage of the grievance. This means that the union retains the right to decide if the grievance will be settled, withdrawn or taken all the way to an arbitration hearing. A union member's consent is not required for his or her grievance to be dropped or settled. Nor do decisions about such matters need to be made with the member's interests uppermost in anyone's mind. All the member is entitled to is "fair consideration" or "honest consideration" depending on which province he or she is in. What does that mean? It means that in arriving at decisions about filing, settling or withdrawing grievances, a union needs only to act in a manner that is not arbitrary, discriminatory or in bad faith.

This excerpt from a FAQ posted by the Ontario Labour Relations Board, pretty much sums it up:

Q: What rights do I have with respect to my grievance?

A: You have the right to have the matter honestly considered by the union.

Q: What if they will not talk to me?

A: The union is expected to discuss the merits of the grievance with you to ensure that it takes into account the relevant considerations.

Q: Can I insist that my grievance be processed on to arbitration?

A: No. The union and not a griever make the final decision on how far a grievance should be processed, and whether or not a grievance should go to arbitration. Section 74 of the Labour Relations Act does not require a trade union to carry a grievance to arbitration simply because an employee wishes that this be done.

Q: Can the Labour Relations Board require the union to take my grievance to arbitration?

A: Yes, but only if the Board is satisfied that the union has violated its duty of fair representation under Section 74 of the Act.

The definition of DFR

While the words arbitrary, discriminatory and in bad faith may sound like broad terms that could encompass a wide range of behaviors and actions, the legislation is interpreted in a way that is very favorable to unions. Anyone who is familiar with DFR knows that it is virtually impossible for a union member who has filed a complaint under the legislation, to win. An inside source at the OLRB estimates that the success rate for union members with DFR complaints is somewhere in the neighborhood of 3% to 5%. It isn't much better in other Canadian jurisdictions. Members who pursue DFR complaints face two big hurdles: Firstly, arbitrary, discriminatory and in bad faith are construed by the LRB's to capture really bad behavior only. Secondly, even where unions and their officials have engaged in really bad behavior, the member must prove it. This information bulletin from the BCLRB provides a good example of the way the terms are defined:

Arbitrary, as used in Section 12, has been defined to include conduct which is perfunctory, reckless or indifferent to an employee's interests. For example, it has been found to be arbitrary for a union to accept the employer's version of a grievance without giving the employee a chance to respond.

Discriminatory... has been defined to include different treatment due to the employee's race, sex, religion or disability. Except where justified by the particular circumstances, similar situations should be treated in a similar manner.

Bad Faith ...has been defined to include decisions based on ill will, hostility or revenge toward an employee.

Unions and their officials, especially those who are not known for their responsiveness to members and their issues, are familiar enough with the legislation and how it has been interpreted to cover their tracks. They know that the law expects them to "honestly or fairly consider the matter". Generally, they can meet this requirement simply by showing that they went through some kind of process to consider the grievance and took into account a number of factors that - according to the case law that has evolved on this subject - have been deemed by various LRB's to be important. Among those factors are considerations such as the likelihood of success at arbitration, the cost of proceeding to arbitration and the impact on the union's relationship with the employer. The member's wishes are not a factor.

The likelihood of success at arbitration is arguably the most important factor and the one that tends to get the most consideration. To some extent this makes sense: Arbitrating grievances that are not winnable is a poor use of the union's resources. On the other hand, the likelihood of success can be stretched in any direction the union wants. Labour arbitration case law is very inconsistent within and among Canadian jurisdictions. The outcomes of cases on similar or even identical issues often hinge on unique aspects of a particular case. In many instances, a case could go either way and it is difficult to assess the likelihood of success. Union officials can, therefore, defend virtually any decision to not file or not advance a grievance on the basis that "we didn't think we could win it".

CYA for DFR

In order to "fairly consider" grievances, most unions have some formal procedure, like a grievance committee. The grievance committee is usually a group of union officials (sometimes elected and sometimes not) who meet to consider pending grievances and make a decision as to what will be done with them. A business agent or other union official often attends at these meetings to offer an "expert opinion" about the likelihood of success of the grievances at arbitration. The degree of expertise of business agents can vary widely. In some instances, business agents may be very knowledgeable about the case law on a particular subject. In others, they may be years behind the case law or simply taking an educated or uneducated guess. A business agent may be offering up an honest opinion or may be slanting their opinion to support a decision that has, for all intents and purposes, already been made. It doesn't really matter. The member has no way of knowing what their degree of expertise or motivation and they don't have to be right in their assessment. As long as the union is able to show that it gave the issue consideration, it can be reasonably sure that it will win a DFR complaint. Simply having a process of some kind will get it past allegations of arbitrariness or discrimination. The union doesn't really have to worry about the bad faith part at all. A member who alleges that the union's decision is motivated by bad faith, will have to prove it and few can do this since the types of activities that fall into this category rarely ever take place in front of witnesses or, at least, witnesses who would be willing to help the member.

Apart from the LRBs' low expectations around just what constitutes consideration, the adjudicative agencies are equally forgiving of a great many other official union shortcomings. The case law across the country consistently supports the notion that incompetence on the part of union officials is not a breach of DFR legislation. Neither is poor judgment. Neither is neglect. Neither is the dispensing of bad advice, breaches of promise or just about anything else that would land just any other service organization in legal hot water. It's OK to miss time limits for filing grievances. It's OK to decline to process a grievance because of promises made to an employer. As this union side law firm's web site advises, it's OK to be wrong, just as long as your intentions were good or can't be proven to be bad.

To constitute a breach of labour relations legislation, a union's conduct must be more than just wrong. It must be arbitrary, discriminatory or in bad faith.

Members are on their own

A further problem for union members who are concerned about the kind of representation their dues dollar is getting them, is their lack of access to information and advice about their rights under their labour relations legislation. In Ontario, union members who want advice about pursuing a DFR complaint must get it at their own expense. The OLRB will not advise them on anything other than what the law says. This, according to the OLRB is because it wants to be "perceived as neutral" by the workplace parties (translation: it doesn't want to upset unions by helping their members file complaints). Workers who decide to pursue DFR complaints are on their own. Few union members can afford a lawyer even if they can find one that is willing to take their case. Many labour lawyers represent either employers or unions and will not touch DFR cases. Practitioners in the legal and paralegal communities who are willing to take these cases are, in some instances, quite unfamiliar with labour law and OLRB proceedings but workers looking to file DFR complaints have no way of knowing who will or won't be a fish out of water when it comes to their hearing - if they ever get one.

Due process? Not for union members

Here's another problem: For union members in Ontario, it is becoming increasingly difficult to even get a day in court on a DFR complaint. The LRB can and often does, dismiss DFR complaints without a hearing based solely on the member's written complaint and the submissions of both the union and the employer (which has standing in these complaints as an interested party). Those whose complaints make it past this initial screening are still not guaranteed an actual hearing. A couple of years ago, the OLRB introduced a process called a consultation - something in between a mediation meeting and a full hearing. During the consultation, a Vice Chair of the Board holds a conference with the parties (the union, the employer and the member) during which he or she can ask questions, get the formal or informal submissions, hear sworn evidence or not - whatever he or she wants - and then can dismiss the complaint without every having conducted a hearing. Don't believe it? Check this out:

"A consultation is a Board proceeding without all the trappings of a full fledged hearing. In some cases, the Vice-Chair will conclude a matter based only on written submissions. In others, the VC may ask to hear viva voce evidence on only some of the issue in dispute, or may limit the extent of parties' oral submissions to certain questions or issues. The provisions of the Statutory Powers Procedure Act do not apply to consultations. The process looks a little like "med-arb".

Consultations were first developed in response to the manner in which litigation was carried on in jurisdictional disputes between trade unions. It was felt that written submissions were a more efficient way of determining these overwhelmingly fact driven disputes was by way of written submissions. If oral submissions were required to clarify a question, the Board convened a much briefer and more focused hearing. This approach was remarkably successful.

The LRA expanded the Board's ability to apply the consultation process to include duty of fair representation and duty of fair referral cases. As a practical matter, these complaints are almost never sustained, but because complainants are often unrepresented and there is no costs disincentive to proceeding, these cases settle with less frequency than others which come to the Board. As a result, we sometimes had a protracted proceeding at considerable cost to the parties and the public for cases that pass a prima facie threshold test but are almost always dismissed in the end. The consultation (where the VC in effect identifies and responds only to those issues which may properly ground a complaint) has permitted the Board to provide the complainant with his or her "day in court", but in a manner which makes better use of resources, and which focuses the litigation on the rights and remedies available through the Board.

Subsequent legislative initiatives have expanded the Board's ability to apply the consultation process to a variety of case types including disputes under the PSLRTA, essential services applications under CECBA, appeals under the OHSA, decisions about the Board's jurisdiction in ESA matters, and the specific areas identified in subsections 110(18) and 99(1) of the LRA. The OHSA setting may be particularly ripe for "consultations", but the Board has yet to experiment with its new powers."

It's just like a hearing but without all the trappings of due process.

A member who has filed a DFR complaint and isn't happy with the result that's been dished out by the OLRB may ask for reconsideration of this decision but should be aware that, "The Board will normally reconsider its decision only if there is new evidence that would influence the proceeding's outcome, that was for some reason not available to the parties at the time of the original hearing. Reconsideration is not an opportunity to present the same evidence again, or to make the same arguments with a new approach."

Unfair Representation gets your union a slap on the wrist

Finally, even in those rare cases where a member is successful in proving that the union acted in a manner that was arbitrary, discriminatory or bad faith, the best that he or she will get by way of a remedy is an order that the union take file or advance his grievance. That's it. There are No fines or penalties. Apart from having to pay its own legal expenses and Beyond filing or arbitrating a grievance that by this time may be a couple of years old, there is no other price to be paid by the union or its officials - no matter what the effect of their arbitrary, discriminatory or bad faith conduct has been on the member.

Here's an example of a real live DFR case that involved a UFCW member.

It's not getting any better

DFR complaints are the fastest growing source of labour relations litigation. A source at the OLRB reports that the number of DFR complaints has risen by 50% since the mid 1990's and those DFR complaints now outnumber unfair labour practice complaints filed by unions against employers. Union officials attribute the dramatic increase to members being more aware of their rights or being unrealistic in their expectations, or being put up to it by rival unions - anything but the truth. Rather than looking for the underlying causes the government agencies that administer DFR legislation are simply finding faster more expedient ways of dismissing the complaints.

So what can you do?

So if you are a member who believes that you have not been well served by your union should you just give the whole DFR thing a miss? Not necessarily. In certain situations you may be able to use it to your advantage.

Stay tuned for Part 2 where we'll tell you how.

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