Duty of Fair Representation
part 2.
The Duty to Go Through the Motions
In part-1 of our series on the Duty to Fair Representation we gave you the straight goods on DFR- a legal requirement found in the labour relations legislation of most Canadian provinces that, in theory requires unions to act fairly in their dealings with their members but which, in practice, does nothing of the kind.
Contrary to popular belief, DFR legislation and the way that it is applied by the provincial Labour Relations Boards, fails to address most representation issues completely. The LRB's don't construe the Duty to include corruption of union officials, harassment of members, withholding of financial and other information, rigged elections or any other undemocratic practices. DFR applies in a narrow range of circumstances, mainly the refusal of a union to file or process a grievance for an individual member. ON this front, the LRB's have steadfastly in maintained that unions aren't exactly expected to move heaven and earth for their members. They're not expected to do much of anything for that matter.
In one LRB decision after another, unions and their representatives have been found "not guilty" of violating their duty to fair representation despite have committed glaring errors and omissions, professing concern for the impact that filing a grievance might have on their relationship with the employer, All that a union is required to do, the LRB's have held time and again, is show that its decision to not represent a member was made on a basis that is not arbitrary, discriminatory or in bad faith. These terms are also given a very narrow definition. Indeed, the member who files the DFR has to prove that the union and its representatives had it in mind to be arbitrary, discriminatory or in bad faith instead of just being sloppy, neglectful or downright stupid.
It doesn't take much for a union to beat a DFR rap and most have learned how to cover their butts well enough to get off really easy. Internal grievance committees that have carte blanche to decide what happens to a member's grievance, legal opinions saying "too bad, you probably won't win" or lame settlements that are presented as "the best we can do" are all the LRB needs to hear to pitch a DFR complaint out the door. Some provinces have introduced procedures that speed up the DFR-dismissal process. In Ontario, few DFR complainants ever get to full hearing. The LRB can dismiss a complaint solely on the basis of the worker's written statement of complaint. For those who are able to get past this hurdle, there is an obligatory mediation process where mid-level bureaucrats attempt (sometimes quite aggressively) to persuade the worker to withdraw the complaint (er... we mean "settle" the complaint). If that doesn't work, there is (in Ontario) a consultation process - where OLRB vice chairs can dismiss complaints after conducting an informal discussion with the worker, the union and the employer. For those who clear all these hurdles there is the LRB hearing where workers must appear - usually unrepresented - before a panel that has the authority to dump their complaint for almost any reason or no reason.
As ineffective as DFR legislation is, there may be some value in pursuing these complaints and some mileage you can get out of them if you turn up the heat. Turning up the heat and keeping the pot boiling is what it's about though because as a worker with the DFR complaint you really don't have any rights to rely on. So the best that you can do in many situations is pressure your union to represent you. That's what we're going to talk about in this segment: How to prepare for your DFR complaint and what buttons to press.
Before we begin, it needs to be emphasized that there is no guarantee of success with any of this. In a DFR complaint, the deck is stacked against you (you will get more in the way of justice if you are fighting a speeding ticket). The process is not meant to help you. It's part of the system that regulates relations between unions and employers. In that relationship you are insignificant. You have a role but your role is to keep each organization's pockets bulging. Beyond that, you're insignificant. IN the DFR process, you find out just how insignificant you really are. Have no illusions about where you stand in this process. The process is not about justice or fair representation. , It's about creating illusions of those. Before plowing ahead with a DFR complaint, think about how much time, energy and money you want to put into the effort and what you, realistically hope to achieve. If you're up for it and know how far you want to take it, read on:
Turn Up The Heat
There is one really big button that works in your favor if you are pushing your union to file a grievance or to take your grievance to arbitration and not getting anywhere: As lame as DFR legislation is, many unions absolutely dread being DFR'd. Although they are highly likely to win, a DFR means that they will need to spend time and money (sometimes a lot of both) defending themselves before the LRB. They will need to get their law firm involved, spend hours hunting around for documents and trying to remember who said what to whom and generally spend time away from more enjoyable activities. If you have been treated in a less than professional way, this may come out at the hearing into your complaint and be written up in the decision. This is embarrassing - especially for the union rep you've been dealing with - and for the union itself. Even though they may win in the end, there will be this public document that details the errors, omissions, incompetence and whatever else went on. Union reps are ambitious people. Many have aspirations of moving up the ladder. They know that having a DFR or two in their track record can be deadly for their careers. It can be used against them by ambitious rivals or by the union office brass should they ever fall out of favor ("Guess we'll have to fire Joe. He had a DFR a few years ago and it cost us a ton of money"). Unions themselves don't like DFR's because they tend to be used by rival unions in the event of a raid or other hostile act.
Intimating that you may be considering a DFR if the union abandons your issue, can sometimes get your rep motivated to the point where, in the very least your grievance will be filed and the union will think long and hard before withdrawing or settling it against your wishes. Some unions would rather go to arbitration with a grievance (even one they're pretty sure they'll lose) than face a DFR complaint. Some local executives are more sensitive to potential DFR threats during an election year or during times when they've taken a lot of flack from the members.
Do Some Spadework
Before you start making DFR noises, however, do a little research. Forewarned is forearmed and it's always good to be prepared. Most of the people you will be dealing with are going to assume that you don't know much - if anything - about the legal side of labour relations. Most will try to blow you off with vague references to "landmark cases" and "leading decisions" or stories of battles that were lost over similar issues. A word to the wise: Your union business agent knows a bit about the law and the union's lawyer knows a lot about the law, you don't need to be an expert or know as much as they know to stand up for yourself and apply some pressure. Who knows the most about the law, doesn't always determine who wins in an arbitration case. Think about it: In most arbitration hearings lawyers represent both the company and the union. Both lawyers know a lot about the law but one is most certainly going to lose.
One of the things that works for you is that the labour arbitration case law is very unsettled on a whole lot of issues (this means that the outcome of cases is hard to predict). This works against you to the extent that it's hard to know how you will do in a hearing if you get to one and there will never be anything that will allow you to feel very certain that you will win. But it works for you in your dealings with the union in that it gives you a way to counter all their arguments about how bad the case looks or how certain it is that you're going to lose. How can they possibly know the outcome of the issue when so much of the case law is unsettled? There are very few unwinnable issues because anything can happen and frequently does.
Get familiar with your collective agreement. Find some language in the agreement that supports your position on the issue that you're raising. Ask to meet with your union rep - not over coffee or on a break. There's never enough time for a thorough discussion. Make an appointment to meet the rep at the union office and set aside an hour or more for your discussion. Be diplomatic. At this stage you don't know exactly how much or how little support you're going to get, so don't alienate someone who may be willing to help you.
Discuss with your rep the language that you believe the employer has breached and ask your rep for his or her opinion. If the rep tells you that it's going to be a tough case to win or that arbitrators tend to side with employers in these kinds of cases, ask to see some decisions that support this. Most union offices have a library of arbitration cases or access to this kind of information. Ask if you can come in to the office and review some of these at a time that's convenient for you. Ask the staff at the union office to help you look up cases that have been won and lost. You need to get as much perspective as you can on the issue. If it's a dog, you might as well know it before you get much further.
Be careful when reading arbitration awards. In a lot of cases, the rulings are all over the map. There is no one landmark ruling on most issues. The outcome of an arbitration hearing can be influenced by many different factors. The facts of individual cases differ, collective agreement language differs, practices in workplaces differ and then there's what happens at the hearing itself. Bad strategy and lame arguments by lawyers have sunk many an ironclad case. So, it's possible to get two very similar cases that have very different outcomes. Arbitrators have a lot of latitude in how they decide cases and in the kinds of remedies that they award.
A useful reference source is a publication called Canadian Labour Arbitration, by Brown and Beatty (most union offices have a copy). This publication contains extensive information about how arbitrators interpret collective agreement language. It won't tell you whether you'll win or lose your grievance but will give you some sense of how strong your case might be.
Make some notes for future reference. Write down the citations that identify cases that support your position (the citation is the part that says, "John Smith vs. John Smith") and highlight any references or statements in the arbitrator's decision that are helpful to you. There are thousands of decisions out there so don't knock yourself out trying to read them all. Look for decisions that are based on collective agreement language that is the same as or similar to yours, involve circumstances that are similar to yours, are fairly current (last 10 years of so) and that come from your jurisdiction (province). These will be the most helpful to you.
Look up also decisions that go against you. If your rep is not all that keen on representing you, he or she will most assuredly be able to provide you with some of these. Look through these and highlight how the facts of these cases differ from your own. If you ever have to argue about the relevance of one of these decisions, you will need to say "this case is not relevant because..."
Next, do some research on LRB decisions related to DFR complaints. These are kept on file at the LRB of your province. If you are in a position to actually visit the LRB offices, ask to see DFR decisions where a DFR complainant was successful. These shouldn't be too hard for the LRB staff to locate, as there are not that many of them. Have a look also at a sampling of decisions where DFR complaints were dismissed. These will give you an idea of how the LRB in your province decides DFR cases - what kind of behavior on the part of unions and their reps has led to successful DFR charges, what kind of behavior is considered OK. You might as well have a good understanding of how your LRB treats these complaints and what will or won't work for you. If you can't visit the LRB in person, call or e-mail them asking for information about DFR complaints and how you can research decisions about these if you can't get to their offices. Ask the LRB staff to explain to you in detail the process for filing and pursuing a DFR complaint. Ask also if the LRB provides any assistance to citizens/taxpayers who want to pursue these complaints. Don't be put off if LRB staff appears indifferent or not very helpful. Persist until you get the service that you - the person who pays their salaries - deserve.
Demand Representation
Now, armed with your enhanced understanding of the collective agreement and DFR decisions, approach your union representative. Reps are sometimes quite taken aback when members do their own research. They aren't expecting this. Depending on how much research you've done, it may even eclipse any that they've done. By coming forward with the results of your research, you're letting your union rep know that (a) you're serious, and (b) you're no dummy. It will also be more difficult for them to blow you off with the usual pronouncements because, chances are, they've never even heard of the cases you're going to be talking to them about. Union Reps don't spend a lot of time boning up on the case law. That's for lawyers.
Ask for representation and support. Make no bones about it. You're a member, you've got a legitimate issue, and it's an issue that could affect many other members. You've been paying for representation, now you're asking for representation.
If your rep is hemming and hawing about your chances of a win, bring up DFR and see what happens. It's always advisable to do this diplomatically (at first anyway). "You know, I've been doing some research and I've come across this Duty to Fair Representation. What can you tell me about that? I'm not looking to alienate you or make your life miserable but it seems to me that I've got some rights to representation here and it would only make sense that I use them if I have to". In some cases this will be all you need to do to get some action. You are diplomatically sending a very strong message: You're giving the union an opportunity to do the right thing before you put any wheels in motion. They can go to bat for you or face the music - it's their choice.
If your union can't be persuaded to do the right thing, continue the discussion about the issue whenever and wherever you can. If you've been told that the case is weak, ask for an explanation. If your issue is NOT something that is dealt with in the collective agreement, you're union rep is probably right. In order to have a winnable grievance you're going to have to show that your employer violated some provision of your collective agreement. In some cases this may be obvious (you've been passed over for overtime, unjustly disciplined, denied a job posting or something of that order) in some cases it may be less obvious.
If your issue concerns unjust discipline (you've been given a formal warning, suspension or have been fired), your case is probably a good one (unless you've done something especially bad or you've got a disciplinary record as long as your arm). In discipline cases the employer has to prove that (a) you did what they are alleging, (b) your actions are grounds for discipline and (c) that the punishment fit the crime. Discipline cases are often uphill battles for employers.
If your grievance has been filed but you're under pressure to withdraw it or settle on some lame settlement that you want nothing to do with ask the union to put the proposed settlement in writing to you and explain why you should accept it. People hate putting stuff in writing - for all the usual reasons. Write back stating that you are not prepared to accept it and proposing a counter offer (if you want to). This puts the union in the position of having to go back to management with a counter offer. You may not get what you want but you're turning up the heat and you're keeping the ball (your grievance) in play. The longer you keep it "live" the more time you will have to pressure the union to take it the distance.
If the union really doesn't want to take your grievance to a hearing (despite your best efforts at persuading them), they will likely send the grievance before some in-house grievance committee. Most unions have some committee or other that is charged with the task of deciding which grievances will be taken to arbitration and which ones will be dumped (settled or withdrawn). There are no laws that govern who is on these committees or how they go about making their decisions. There is nothing that gives you a right to attend at their proceedings or to make representations to them. Find out what your union's grievance review process is, whether you are entitled to communicate with the grievance committee and whether you can do this verbally or in writing (it's good if you can to do both.) If your union's process doesn't allow input from you, ask why not. How can the grievance committee reach an informed decision without input from you? Some unions let the members decide which grievances go to arbitration by putting them to a vote at a membership meeting. If your union does this, make sure you show up at the meeting and have an opportunity to address the members. Bring as many members with you as you can who are likely to vote in favor of advancing your grievance.
If the decision of the grievance committee is not in your favor, find out if there is an appeal process. This may seem like a waste of time but you will need to go through your union's internal processes if you want to get to a DFR complaint. Once again, find out what the appeal process involves and follow it, laying out your case in person or in writing (this should be fairly easy to do because you will have done most of the legwork already). Ask your union if you are entitled to a representative who will be your advocate through this process. If your union appoints one, again, don't alienate this person but do remind them that their role is to put together the best possible appeal for you.
Protect Your Interests And Build Your Case
Do your homework and don't mess around with deadlines or requirements for specific documentation. If you need an extension, ask for it well in advance. You've got an uphill battle ahead of you. No sense getting blown away by administrivia.
Keep notes that are clear and legible of discussions with your union reps, lawyers, grievance committee members and anyone else about your grievance. Follow up with people who aren't responding to phone calls, letters or e-mail and keep a record of your attempts to contact them. Don't sign off on settlements that you aren't prepared to go along with. Once you've signed off, the deal is done.
If your grievance is dumped anyway, ask for written reasons. If you get the standard letter, ask for specific reasons. What did the committee consider in its deliberations, what research was conducted, if legal opinions were sought, what were those?
If you can't be persuaded to back off by the union office staff, the next step in helping you to "let go", is to get an opinion letter from the union's law firm. This letter briefly summarizes the issue and then offers up an inconclusive opinion about the probable outcome of the case. Sometimes it makes mention of some other case that was similar or some ruling on a similar issue. This is makes the letter and the lawyer who dictated it sound very impressive. The letter stops short however of making any definitive statements about the outcome. Lawyers never make definitive statements about the outcome because - they don't know what it's going to be. The typical verbiage is something like: "Having considered all of the foregoing, it is our opinion that a favorable outcome at arbitration is unlikely". Once you've received this letter, insist on a meeting with your union rep to discuss it. Tell your rep that you want to understand the letter and how the lawyer arrived at his or her opinion. Point out that the letter doesn't make any definitive conclusions and ask about any decisions cited and how similar they are to yours. Ask for copies of those decisions so that you can satisfy yourself. It's almost guaranteed that the rep won't know much about them. Your peskiness will almost assuredly take you to the next step of the "letting go" continuum: The meeting with the lawyer.
If your union is having a hard time getting you to "let go" of your grievance, it is not uncommon for them to set up a meeting with you and their lawyer. This is so the lawyer can tell you - again - why "letting go" is a good idea. The lawyer will tell you pretty much what the union rep has been telling you all along, only it will sound more impressive and more credible because it's coming from a lawyer. Again, ask the same questions that you've been asking all along. If you've dug up some cases that you think are important ask the lawyer to comment on those. You'll probably get an answer like "Well that's not exactly 'on point'" or it's an unusual case or the circumstances were different or something like that. Ask for explanations and keep asking until you're satisfied or the lawyer has run out of stuff to say.
The lawyer is acting on the assumption that you don't know much about this stuff, you haven't go a clue about the case law and you are gong to be wowed by him or her. Don't do any of the above and you will have the lawyer confused, maybe even befuddled. If you want to get him or her chasing their own tail, ask some pointed questions about what their role is in this process, if the union has signaled to them that it wants a certain kind of opinion about this case. If you really want to piss them off, ask who in the legal community has the best track record of winning on issues like that one you want to take the distance.
If you're up to it, write back to the union expressing your reservations about the opinion letter and pointing out that it does not definitively conclude that the case is a lost cause. Ask for supporting information. Point out that almost any grievance can be won or lost at arbitration and that there are costs to the union no matter what the outcome.
Finally ask the union to explain to you with some degree of detail how it assesses when to proceed and not to proceed to arbitration. How do the costs weigh in the balance? Every arbitration costs something. How do they decide where the costs outweigh the importance of the issue? This is a really terrible question. If you get an answer tell us. You'll probably be the first.
Asking for decisions, opinions and explanations in writing is important in that it allows you to keep an accurate record of what you've been told and makes it harder to people to rewrite history or put a spin on things. Getting things in writing is helpful to you because then there is no dispute about what you've been told.
Should you get a lawyer of your own? Unless you can afford to shell out thousands of dollars (maybe tens of thousands) or can find a competent lawyer who is familiar with labour law and is willing to take your case pro bono or on contingency, forget about it. Your lawyer will dump you as soon as you run out of money and that will be sooner rather than later. You will spend all of your savings and end up doing most of the case yourself anyway. On top of that, most labour relations lawyers work for management or unions. Few are willing to take on workers with DFR complaints as clients. Lawyers, who are unfamiliar with LRB processes, tend not to do very well at the LRB. Look at it this way: If you lose, you'll at least not have spent your last nickel on lawyers. If you win, you'll have the added satisfaction of knowing you did it on your own.
Your DFR Complaint:
So you've done everything in your power but the union dumped your grievance anyway. If you're filing a DFR complaint, find out from the LRB (if you haven't already done so) exactly what the process is for this. It's important that you follow their process to a T. Remember, these guys exist to dump your complaint as quickly and efficiently as possible so don't give them a ready-made reason by filing incomplete documents or submitting your documents after the deadline for filing. Some provinces require that you also send copies of your completed documents to the union or any other affected parties. Make sure you do.
Your LRB will not assist you in completing the paperwork required for your complaint (ask if they will but don't get your hopes up). They should, however, respond to any questions you have about how the forms are to be completed, what should be included in your statement and where your complaint needs to be filed. By now you've probably learned to be persistent, so if anything isn't clear or you're not getting cooperation from the LRB staff, remind them that that they owe you service.
When writing your statement of complaint, make sure you include anything that might be relevant. Leaving something out may well mean that you will not be able to raise it at the hearing (if you get that far). Be extra careful to include references to events, actions or omissions that could be construed as evidence of arbitrariness, discrimination or bad faith on the part of the union. This is the stuff that's really going to help you. It is very important that your written complaint makes out a prima facie case of a breach of the duty to fair representation. This means that on its face, the complaint demonstrates elements of arbitrariness, discrimination or bad faith. If you don't have these in the complaint, the LRB can deep-six your complaint without a hearing.
If you get past this initial hurdle, you'll be on your way to the LRB. There you'll find a multi-step process that can, if you make it that far, culminate in an actual hearing. The LRB and its processes can be very confusing. Numerous bureaucrats preside over various processes where there is only a thin veneer of due process. Many of them are former union officials, corporate labour relations managers or management or union-side labour lawyers. They have enormous power to decide complaints like yours. They can choose which facts they will consider, what evidence they will hear and which of your allegations is worth looking into. They are not required to disclose conflicts of interest. They can preside at reconsideration hearings into their own decisions. They presume themselves incapable of bias. Best of all, they are part of a tightly knit community that calls itself the labour relations community. The "community" includes union officials, corporate labour relations managers, arbitrators, labour relations lawyers, LRB Officers, Chairs and Vice Chairs and does not include you.
Don't let this blunt assessment of them put you off, however. If you've made it this far, you can go the distance. In our next installment, LRB Guys are Jerks, we're going to talk about how you can present your own DFR case and play to win.