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.

Sections 10, 12; LRB Rule 2(2)
Form 12
See also Practice Guideline No. ADJ-3

 Duty 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 collective agreement.

The union must thoroughly investigate a grievance and should generally discuss its merits with the person filing the grievance.

Union's Actions

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

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 conduct  collective 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).

Internal Appeals

Interested Parties

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 an  Officer 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 union.

 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 courts.

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 following:

 ·        individual members have the right to know the accusation or charges against them, and to have particulars of those charges,

 ·        individual members must be given reasonable notice of  charges 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 constitution provisions,

 ·        there is a right to a hearing, the ability to call evidence and introduce documents, to cross-examine and to make submissions,

 ·        the trial procedures must be conducted in good faith and without actual bias; no person can be both witness and judge,

 ·        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 evidence, and

 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.

Section 12

James W.D. Judd, BCLRB No. B63/2003 (general law)

Rayonier Canada (B.C.) Ltd., BCLRB No. 40/75, [1975] 2 CLRBR 196 (general law)

Donato Franco, BCLRB No. B90/94, 22 CLRBR (2d) 281 (general law)

Terry Norris , BCLRB No. B23/94, 23 CLRBR (2d) 52 (Section 13 determination)

Joe Frank, BCLRB No. B236/99, 51 CLRBR (2d) 255 (procedure and timeliness)

Daryl Jensen, BCLRB No. B407/99, 55 CLRBR (2d) 271 (limitation of scope of section 12)

Magnus E. Seime, BCLRB No. B124/94 (duty of fair representation may not apply with respect to representation at Workers' Compensation Board)

Wayne Macdonald, BCLRB No. B161/94  (claimant alleging he signed settlement agreement under pressure)

 Eric K. Donaldson, BCLRB No. B337/99 (duty of fair referral)

 Brian Rosie, BCLRB No. B154/93 (required standard, duty of fair referral)

 Jason Han , BCLRB No. B353/93 (complainant did not avail himself of internal appeal procedure after his grievance was denied)

 Mervin Klaudt, BCLRB No. B85/93 (Board allows unions a wide latitude in collective bargaining )

Section 10

 Coleman and Leaney, BCLRB No. B282/95 (general law)

 Zoltan Strigan, BCLRB No 138/85 (equal treatment of members, penalties must not be excessive)

 Gary Joseph Geaudrault, Robert John Greydanus and Thomas Earl Hummel, BCLRB No. 247/85 (penalties must be imposed in an even-handed manner)

 Joe Shayler and Boyd Bechler, BCLRB No. B411/94 (complainants not required to exhaust internal procedures in the face of possible or actual bias)

 Herman Pereira et al, BCLRB No. B83/97 (abolition of a union local)

 Calvin Washington, BCLRB No. B415/95  (natural justice)

Board decisions since January 1, 2000 are available without charge on the Internet at  www.lrb.bc.ca.

 Board decisions can also be purchased from:

Canada Law Book Inc.
240 Edward St.
Aurora, Ontario     L4G 3S9

Telephone (toll free) 1-800-263-2037

 

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.