Duty of Fair Representation
Part 3: Writing a Kickass Complaint
So you've decided to file a duty of fair representation (DFR) complaint against your union. You've got a tough road ahead, however, that doesn't mean that you should not file your complaint or that you have absolutely no chance of winning. If you've read the first two articles in our DFR series, you'll know that you are in for an uphill battle, however, win or lose, you can still teach your union, your employer and your provincial Labour Relations Board (LRB) a lesson about what happens when they use workers' rights for a doormat.
Part 3 in our series will give you some pointers about two very important aspects of the complaint process - writing your complaint submission (the document that you will send to your provincial LRB setting out the details of your complaint) and the LRB mediation meeting where an employee of the LRB (for purposes of this toolkit piece, we're going call these people "LRB guys") will attempt to settle your complaint before it goes to a formal hearing.
These two aspects of the complaint process are really important. How you write your complaint may determine whether you ever get to a hearing and what issues the LRB will or won't consider if you do. What you do at the mediation meeting with the LRB guy may decide whether whether your complaint goes ahead to hearing, is withdrawn or settled on a basis that may or may not be acceptable to you.
Legal Disclaimer: Before we begin, we're going to alert you to something that is important for you to understand before you read the rest of this article: What we are about to tell you is not legal advice. We are not lawyers and we don't do legal advice. Our aim is to give you some pointers, suggestions and insight that may help you prepare your written submission and avoid getting bamboozed during mediation. So - if things don't go your way, don't be laying the blame on our doorstep. Are we cool? OK, let's do it.
Your first order of business is to write a proper submission to your provincial LRB. This is really important because wherever you live, your LRB will be looking for reasons to dismiss your complaint as soon as it reaches the mailroom. A poorly written submission will give your LRB an excuse to do just that or will, in the least, give your union and your employer an advantage if you get to a hearing. Some LRB's have the power to dismiss DFR complaints based entirely on the written submissions they receive from the complainant (Ontario is one example of a jurisdiction where the LRB has this power and wields it like an axe). If the LRB officials who review your complaint when it is first received don't think you've made out a convincing case that your union acted in a manner that is arbitrary, discriminatory or in bad faith, they'll dump your complaint without holding a hearing.
For this reason, what you say in your complaint is really important. Don't skimp on words and details thinking that you'll get to provide more information or a fuller account later on - there might not be a later on. This is a step in the DFR complaint process where you actually have a lot of control - what to say in support of your complaint is entirely up to you. Use this to your advantage.
As a starting point, get as much information as you can about what is required of you from your LRB. Contact your provincial LRB and ask to speak to someone who is authorized to advise the public about the process for filing DFR complaints. Ask:
- What is the process for filing a DFR complaint?
- How much information must be provided in the complainant's initial written submission? Should the complainant be general or specific when speaking about their allegations? What level of detail should be provided?
- Does the LRB have the power to dismiss the complaint without holding a hearing? If so, what criteria does the LRB use when determining which complaints will be dismissed without a hearing and which ones will go ahead?
- What time limits do complaintants need to be aware of?
- How are the union and employer notified of the complaint? Does the LRB notify them or does the complainant do this?
- Do the union and employer get to file written responses to the complaint? If so, does the complainant get to do a rebuttal?
Get the name and title of anyone you speak with at the LRB and make notes of any advice you receive.
Ask the LRB to provide you with copies of decisions where complainants have been successful in winning their DFR complaints or, in the least, to give you the names of these cases so that you can research yourself. Most LRB's will require you to visit their offices and do this kind of research yourself. If you live far away from their offices, ask if they can mail or fax you copies (there is probably going to be a fee for this) or you may want to find out if copies of LRB decisions are available at your local reference library. You may also want to try www.canlii.org for research purposes. (Enter "duty of fair representation" as a search term and go from there.) Start by looking for cases from your own province. LRB's love their own jurisprudence. If your search comes up empty, move on to other provinces.
Search for cases that involve issues similar to yours and for decisions that support your case. You can refer to these in your submission and later in your hearing and argue that other tribunals have held that the kind of behavior that you are complaining about is arbitrary, discriminatory or in bad faith. Look also at DFR decisions where they complainant was unsuccessful. These may give you some idea of where the landmines are in these cases. Forewarned is forearmed.
If you can't find any case law that supports you or if you're just not in a position to do any research, don't give up. It's not essential to include references to case law in your complaint submission, although you will want to do some of this kind of research if and when you actually get to a hearing. The benefit of including references to the case law in your initial submission is that you're telling the LRB, your union and your employer that, "Hey, I'm no dummy." It also forces their presentatives to look up and study the cases you've cited. Win or lose, you can make 'em sweat.
Get the appropriate forms from your LRB and fill them out, following any instructions that come with them to the letter. Do not skip over instructions, or neglect to answer questions even though they may seem stupid or repetitive.
The forms will ask for some basic information about you and your union. You are the "complainant", your union is the "responding party" or "respondent". If the form asks you to name any other party that might be affected by your complaint, that would be your employer. If your complaint alleges arbitrary, discriminatory or bad faith behavior on the part of your local and you national or international union, name both or all as respondents.
You'll be asked to provide a statement of some kind setting out your complaint. What you say may determine whether you get any further with your complaint so listen up.
There is no sure fire way of writing a DFR complaint that will assure you that your LRB won't read it and toss it. You can, however, make it more difficult for them to file your complaint under "G" by taking care in the way that you write it.
From our earlier segments you will know that there's an awful lot of unfair representation that is tolerated by the LRB's: Stupidity, negligence, corruption - and a litany of other bad behavior - on the part of union officials have all, at one time or another, been excused as a small enough price to pay for good relations between employers and unions. So don't assume that just because your union rep acted like a dork, saying that will be sufficient to get you past the LRB mailroom. In your DFR complaint you're going to have to do more than just explain what the union did or didn't do. You're going to have to argue that the union's actions are evidence of arbitrariness, discrimination or bad faith. Some pointers:
- Unless your statement of complaint is really brief, don't try to squeeze it into the small space provided on the LRB forms. Write your submission on as many pages as you need and attach it to the LRB forms as an "Appendix" or "Attachment". If you can, submit a typed or word processed statement. If you have to submit a handwritten statement, ensure that it's legible. Each new allegation or argument should be a separate paragraph. Number the paragraphs and pages - this will make it much easier for you later when you have to refer people to certain statements that you've made. In the opening paragraph, state your name, where you work (or worked), your job and how long you worked there. None of this is essential but you might as well let the LRB guys know that you are a real live human being. Then move on to the substance of your complaint.
- Open with a paragraph that generally describes the nature of your complaint: "My union has failed in its duty of fair representation in that it has failed to/refused to....."
- Describe what happened that's led you to believe that your union has failed in its duty of fair representation. If you are describing a number of different incidents or events, speak about each one separately and then move on to the next.
- Provide as much detail as you can (describe who, what, when and where). Start at the beginning and work your way through chronologically. Don't leave anything out unless your LRB has told you that you don't have to supply details and will be able to do that later on. More detail is usually better than less.
- Explain how your union's actions constitutes arbitrary, discriminatory or bad faith conduct. This is a really important part of your complaint. Remember, in order to win, you need to convince the LRB that your union was arbitrary, discriminatory or acting in bad faith when it did whatever it did that prompted your complaint.
This is an excerpt from a BC LRB bulletin that describes how that LRB defines arbitrary, discriminatory and bad faith conduct on the part of unions:
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.
This is generally is how LRB's define arbitrary, discriminatory or bad faith conduct. Discuss these definitions with your own LRB to determine if there are any differences or nuances that you should be aware of though.
What you need to do in your submission is to describe the union's conduct and link it to one (or more) of these definitions. For example:
Let's say that you told your union that you wanted to file a grievance about something your employer is doing that you believe violates your collective agreement. Your union representative refused to file the grievance. You asked why and he simply told you that it's a bullshit issue, you'll never win it and it will just sour relations with the employer.
You may be able to claim that the union rep is acting in a manner that is arbitrary. He's making a decision off the top of his head without any indication that he's considered the issue (and your rights and entitlements) carefully. In this case, your complaint might say:
"On [date] I met with my union representative Mr. X and explained the basis of my complaint which was_______________. I told Mr. X that what my employer was doing is in violation of article X.XX of the collective agreement. Mr. X responded that my complaint was "bullshit", that I would never win and all I would do is strain relations between the employer and the union. Mr. X went on to state that the union did not want to waste its money on complaints of this kind. Mr. X clearly did not consider, in any meaningful way, the merits of my complaint or my rights and entitlements under the collective agreement. For this reason I assert that my union, of which Mr. X is a representative, acted in an manner that is arbitrary and prohibited under Section [?] of the Labour Relations Act [of your province]. I therefore, request that the Board direct my union to file a grievance with respect to the collective agreement violation that I brought to Mr. X's attention."
This is a pretty simple example, but you get the picture, right? You need to cover off the following bases:
- What did the union do or not do?
- The union's conduct is arbitrary, discriminatory or in bad faith.
- The reason it is arbitrary, discriminatory or in bad faith is because...
- This is a contravention of the Labour Relations Act.
- As a result of this contravention, you are requesting the Board to grant a remedy which is...
These are the key elements of your submission. Without them, your complaint is incomplete and so, open to various challenges by your union and your employer.
A few more pointers:
- If your complaint involves your dismissal, remind the LRB that unions have been found to have a higher standard of fair representation to meet just because of the severe impact of a dismissal on a worker.
- Don't use "legalese" language unless you are familiar with it. Use layperson's language (ordinary every day words and phrases). What's important is that you make yourself understood.
- You can write in the first person (this is where you refere to yourself as "I" or "me") or the third person (where you refer to yourself as "the applicant" or "the complainant") - whatever you are more comfortable with.
- If possible, have someone read over your submissions and tell you whether or not they understand what you're saying.
- Make sure that your complaint includes a statement to the effect that "The union's actions [whatever it did or did not do] are arbitrary, discriminatory and/or in bad faith."
- Stick to the facts. Do not do a rant or make wild accusations. This will only make the LRB guys laugh and tempt them to dump your complaint. State what happened and how it is evidence of arbitrariness, discrimination and/or bad faith behavior.
- State what you are looking for as a remedy (what do you want the LRB to do for you). You're pretty much limited to whatever the union should have done if it had represented you fairly: If your complaint is that your union refuses to file a grievance. Your remedy will be "An order directing my union to file a grievance on my behalf..." Or "an order that the union advance my grievance to arbitration".
- Don't ask for millions of dollars in damages or for your union rep's head on a stick. You won't get these kinds of remedies and, again, the LRB guys will just label you a "loose cannon" and have a few laughs at your expense. If you feel inclined to ask for compensation, make it a reasonable amount and state what it is for. . It's better to go after remedies that you stand a chance of getting or, at least, ones that you can put forward a rational argument for.
- To "lawyer up" or not? This is really up to you. Of course, having a legal representative who is knowledgeable about the LRB's procedures, writing the necessary documents and arguing before the Board is a plus. But legal representation isn't always available to DFR complainants. Most labour relations lawyers do work for employers or unions and won't touch a DFR complainant with a ten-foot pole. Many also charge big dollars for their services. Lawyers who are not familiar with labour relations law are often completely out of their element in DFR proceedings. Unless you're able to get a lawyer who knows what he or she is doing, you'll be paying money for service that isn't going to do much more for you than you can do for yourself. If you can find a lawyer who will charge you a modest fee or better yet, do your case pro bono, (contact your local law society to find sources of possible pro bono help in your area), by all means go for it. The reality is though, that you may not be able to find anyone worth the money, so if you have to go it alone, do it. Some DFR complainants have done remarkable job of representing themselves. Here's Budgell v. CUPE Local 15
- Sign and date your statement and any forms that must be filed. If it's your responsibility to send a copy to the union and the employer (the employer is almost always involved in DFR cases as an "intervener" or "interested party" - a party that stands to be affected by the outcome of the case), ensure that you do this.
Once you've filed your submission, your employer and your union will get an opportunity to respond to your allegations. There is usually a time limit for this and you will receive copies of what they file with the LRB. You then have a period of time in which to respond to what they've said.
In their responses, the union and the employer will more than likely say something to the effect that you have not established a "prima facie" case of a breach of the DFR legislation or that you have not been clear enough or provided sufficient information. Do not make statements that imply that you agree with these assertions (or - worse yet - apologize for being less than thorough in your written complaint). Respond to these kinds of statements by stating that your submission is clear and concise and, if taken at face value, is sufficient to establish a prima facie breach of the Labour Relations Act. Go through each of their submissions and high light anything you disagree with or that you believe is not factual. Write a brief rebuttal stating what you disagree with, why and what you have to say in reply. Again, keep to the facts, avoid making wild accusations and restate your position: The union acted arbitrarily, discriminatorily and/or in bad faith.
Submit your complaint through whatever method of delivery your LRB allows, preferably something that gives you an acknowledgement that your complaint has been received.
Now get ready to kick some more bureaucratic butt because: Part 4 - LRB Guys Are Jerks.