Duty of Fair Representation and Internal Union Affairs
The purpose of this Information Bulletin
is to provide general information and guidance about the duty of fair representation and
the application of the principles of natural justice with respect to membership in a trade
union.It is not a legal document and is
subject to the provisions of the Labour Relations
Code, the Labour Relations Regulation, the Labour Relations Board Rules and the
published decisions of the Board.
Legislative References (Code, Regulation, Rules)
Sections 10, 12;
LRB Rule 2(2)
See also Practice Guideline No. ADJ-3
of Fair Representation
Section 12 of the Labour Relations Code prohibits unions from
acting in a manner that is arbitrary, discriminatory or in bad faith when representing
their members.This prohibition also applies
when the union is representing non-members who are part of the bargaining unit.
This duty of "fair
representation" applies with respect to the trade union acting as bargaining agent
for employees in dealing with their employer, and with respect to the referral of union
members to employment (i.e., a hiring hall arrangement).
The union has exclusive authority to act
on behalf of employees in processing grievances through the grievance procedure under the
The union must thoroughly investigate a
grievance and should generally discuss its merits with the person filing the grievance.
The decision as to whether to proceed to
arbitration with a grievance is made by the union, not the grievor; however, the decision
must not be made in a manner which is arbitrary, discriminatory or in bad faith.Providing the union investigates the grievance,
obtains full details including the employee's side of the story, and makes a reasonable
assessment of the potential outcome, the Board will not interfere.The Board will consider the seriousness of the
grievance when examining the union's conduct.
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, as used in Section 12, 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, as used in Section 12, has been
defined to include decisions based on ill-will, hostility or revenge toward an employee.
Honest mistakes or misjudgements by union
representatives regarding grievances or referrals may not be a violation of Section 12;
however, indifference or gross negligence can be.
A union has the right to refuse to pursue a grievance or reach a
settlement with the employer without the member's agreement,
provided that in so doing it does not act in a way that is
arbitrary, discriminatory or in bad faith
The Board allows unions a wide latitude in
how they conductcollective bargaining.For example, it is recognized that groups of
employees may be treated differently in negotiations where there are legitimate reasons
for the distinction.
Where a union refers members for
employment, as in the case of a hiring hall, a referral must not be done in bad faith or
in a manner which is arbitrary or discriminatory.However,
in recognition of the fact that dispatch decisions must often be made quickly and require
the exercise of discretionary judgement by the dispatcher, the required level of
investigation is not as high as in the case of a grievance.
Section 12 complaints must be made on
Labour Relations Board Form 12 and must provide the full reasons or particulars as to why
the applicant believes the union has violated its duty of fair representation.
A complaint under Section 12 must be filed
(in an acceptable form) within a reasonable time after the events that are the subject of
the complaint.If not, the complaint may be
dismissed on the basis of undue delay.What
length of time is"reasonable"
depends on the circumstances, but the Board has often said it is "measured in months,
not years".For example, a complaint
filed within two months is generally acceptable; a delay of several months may cause the
complaint to be dismissed; and a complaint filed a year after the event will generally be
dismissed unless very compelling reasons for the delay are provided.Where there is significant delay (i.e., more than
3 or 4 months) the complaint should include the explanation for the delay (e.g., if the
complainant was pursuing the union's internal appeal process: see next topic).
The Board will normally require that
internal avenues of appeal have been exhausted before a Section 12 complaint is accepted,
unless there are compelling reasons why the union's internal appeals cannot be used.
Both the union and the employer are
interested parties to a Section 12 complaint as their interests may be affected in a
direct and legally material way by the outcome of the proceeding.
On receipt of a properly completed
application, the Board will send a copy to the union and employer for information purposes only.A panel will then review the application under
Section 13 and determine whether there is an apparent contravention (i.e., whether the
allegations and supporting evidence contained in the application, if proven true, could
constitute a violation of Section 12).
If no apparent contravention is
established, the application will be dismissed.If
a contravention may have occurred, the union and employer will be asked for a written
reply.The applicant will have the right to a
final response.The Board may also have anOfficer or a Vice Chair meet with the parties
informally to clarify the issues and attempt to resolve the dispute.
If there is no settlement, the Board will
normally decide the application based on the parties' written submissions or after
conducting an oral hearing.
Note that the Board is required by the Code to
publish its decisions. This means the circumstances of a Section 12
complaint may be summarized in a written decision which is posted on
the Board's website, sent to the parties, and otherwise made
available to the general public.
If a hearing is held the parties are each
responsible for any travel, legal, witness or other costs which they may incur.
If a Section 12 complaint involves a
grievance, the Board will generally not rule on the merits of the grievance, but will only
rule on whether the union has failed in its responsibilities under the Code.If the complaint succeeds, the Board may direct the grievance to be taken to arbitration
with the applicant having the option of representation by independent legal counsel.
Section 10 of the Code protects every
person's right to the principles of natural justice in all disputes relating to matters in
the constitution of a trade union, membership in a trade union or discipline by a trade
No trade union shall expel, suspend,
impose a penalty or special levy on a member or refuse membership to a person if, in so
doing, the union is acting in a discriminatory manner.Similarly, a union is prohibited from such actions where a member refuses to
participate in an activity prohibited by the Code.
The Board does not have general
jurisdiction over issues related to the interpretation or application of a union's
constitution.That jurisdiction rests with
The Board's jurisdiction under Section 10
is limited to ensuring that the principles of natural justice are applied in internal
disciplinary proceedings.This includes the
have the right to know the accusation or charges against them, and to have particulars of
must be given reasonable notice ofcharges
prior to any hearing,
·the charges must be
specified in the constitution and there must be authority in the constitution for the
ability to discipline,
·the entire trial
procedure must be conducted in accordance with the requirements of the constitution.This does not involve a strict reading of the
constitution, but there must be substantial compliance with the intent and purpose of the
·there is a right to a
hearing, the ability to call evidence and introduce documents, to cross-examine and to
·the trial procedures
must be conducted in good faith and without actual bias; no person can be both witness and
·the union is not bound
by strict rules of evidence; however, any verdict reached must be based on the actual
evidence at the hearing and not influenced by any matters outside the scope of the
in regard to serious matters such as
a suspension, expulsion or removal from office, there is a right to legal counsel.
Internal discipline imposed by a union to
ensure effective implementation of a strike plan is not a violation of Section 10,
provided the union is even-handed in imposing sanctions.Penalties must not be excessive.
If a union charges different initiation or
membership fees to people for membership before and after a certification, it is
discriminatory and a violation of the Code.
With respect to disciplinary matters, the
Board will require that internal appeal procedures are pursued, unless the Board
determines that such procedures are unfair or that the process will take too long.
Board decisions since January 1, 2000 are
available without charge on the Internet atwww.lrb.bc.ca.
Board decisions can also be
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LRB Staff provide general information and
assistance to the public, but they cannot act as your representative or advisor.For answers to specific concerns related to your
situation,you should consult a lawyer or an
advisor experienced in labour relations.For
general clarification, call the Board's Information Officer at 660-1300.