Labour Relations Board Summary of Key Section 12 Decisions

The following is a summary of key decisions under Section 12 of the Labour Relations Code and under the equivalent sections of previous labour legislation. It is designed to assist individuals to understand the interpretations of a union's duty of fair representation which have been adopted by the Labour Relations Board.

James W.D. Judd, BCLRB No. B63/2003

Joe Frank, BCLRB No. B236/99

There is no statutory time limit for filing a Section 12 complaint; however, the Board has jurisdiction to dismiss a duty of fair representation complaint where there has been excessive delay.  This authority does not arise from either the Board's general power to determine its own practice and procedure, or from the application of equitable doctrine.  Rather, the Board has for many years had a discretion under what is now Section 14(3) of the Code to refuse to inquire into a complaint . The period for filing a Section 12 complaint is measured in months and not years.  The Board has generally declined to proceed where more than a year has passed since the complainant knew, or ought to have known, of the events giving rise to the alleged contravention of the Code.   In determining whether there has been excessive delay, numerous factors are considered, including the length of the delay and the nature of the explanation for the delay. 

Andre Henri BCLRB No. B76/00 (Leave for Reconsideration BCLB No. B144/00)

A complainant is responsible for providing to the Board a persuasive explanation for their delay in filing a Section 12 complaint

RAYONIER CANADA (B.C.) LTD., BCLRB No. 40/75, [1975] 2 Can LRBR 196

A union is prohibited under the "duty of fair representation" from engaging in any of three forms of misconduct in representing employees. First, the union must not be motivated by bad faith in the sense of personal hostility, political revenge or dishonesty. Next, the union must not discriminate by treating different employees unequally whether on account of such factors as race or sex, or through simple personal favouritism. Finally, a union must not act arbitrarily, disregarding the interests of an individual employee in a perfunctory manner; it must take a reasonable view of the problem and reach a thoughtful judgment after considering the various relevant and conflicting considerations.

TERRY NORRIS, BCLRB No. B156/94, (1994) 23 CLRBR (2d) 52

Section 13 of the Labour Relations Code requires that a complaint under Section 12 of the Code establish a prima facie case that the union has violated Section 12 or the Board will not proceed with the complainant's application. The Complaint must contain more than basic assertions or allegations about the union's behaviour. It must provide sufficient information or details to establish, if uncontradicted, that there has been a violation of the union's duty. The Board will then give the union and employer an opportunity to respond to the complaint.

DONATO FRANCO, BCLRB No. B90/94, (1994) 22 CLRBR (2d) 281

Section 12 of the Code does not require that the union be correct in the decisions it makes. It has fulfilled its duty when it does not act in a manner that is arbitrary, discriminatory or in bad faith. A union can settle or abandon a grievance, even where the grievor disagrees, as long as the union has conducted an adequate investigation and made a reasoned decision. In the case of a grievance that goes to arbitration, it is the union that conducts the arbitration on behalf of the grievor.The decisions that the union makes with respect to how to proceed at the hearing will not be reviewed by the Board unless its conduct is shown to be arbitrary, discriminatory or in bad faith. In reaching its decision on a complaint under Section 12, the Board will examine the conduct of the union as a whole, rather than focus on each single aspect of the union's actions.

Unions are given considerable latitude in deciding whether or not to pursue a grievance through to arbitration. The reason for this is explained in the following passage from the following major decision:

RAYONIER CANADA LTD., BCLRB No. 40/75, [1975] 2 Can LRBR 196

First, while arbitration is the ultimate mode of settlement of grievances, it is expensive, takes time and consumes the energy and attention of the parties. For that reason, it is preceded by a grievance procedure which is designed to clear up as many claims as possible without need for arbitration. The grievance, as it is taken through the various stages, is carefully considered by representatives of union and management at ascending levels of authority. Experience shows that this procedure resolves informally the vast majority of disputes arising under the agreement and in doing so plays a major role in securing the benefits of collective bargaining for the employees. But the institution can function successfully only if the union has the power to settle or drop those cases which it believes have little merit, even if the individual claimant disagrees. This permits the union to ration its own limited resources by arbitrating only those cases which have a reasonable prospect of success…. It is important as a matter of industrial relations policy that a union must be able to assume the responsibility of saying to an employee that his grievance has no merit and will be dropped.(p.12)

MARKO BOSNJAK, IRC No. C221/89

The union has no obligation to pursue a grievance when the union and the employer agree on the meaning of the terms of the collective agreement, unless a complainant is able to establish the employer and union have conspired against the complainant in agreeing to the interpretation:

…A union may refuse to process a grievance to arbitration where the grievance raises a matter that is not in dispute between the parties to the collective agreement. In other words, where the grievor claims a right in the collective agreement which, based upon both the employer's and the union's interpretation, cannot be sustained, there is no obligation to pursue the matter to arbitration…..(p.4)

A union has the right to control a grievance and, therefore, the legal power to reach a settlement with the employer. This is outlined in the following passage:

As a result of the union's right to control the grievance and arbitration procedure, the union may choose to settle or abandon a grievance with or without the approval of the grievor. Certainly, it is advisable for the union to consult with the grievor prior to the settlement, but failure to do so does not necessarily result in a breach of [Section 12], as long as the union takes a reasonable view of the problem and arrives at a thoughtful judgment about it.

Marie A. Ellison, IRC No. C38/92, p.5.

In Cindy Chan Piper, IRC No. C245/92 the union grieved the employer's failure to award a posted position to a member of the bargaining unit. There were two positions in dispute. However, a successful grievance might have resulted in the complainant losing the position which she had been awarded. In rejecting the complaint the panel stated:

The Board [has] long recognized that a union has the right to advance the interests of one employee, or one group of employees over the interests of another employee or group. Before advancing a grievance of one employee, however, the union must take reasonable steps to inform itself of the respective merits of each member's interests. (p.5)

In this decision the panel also rejected the claim that the union was obliged to provide representation or to pay legal costs for the applicant:

… the Union has a right to advance the interests of one employee over the interests of another employee. As a general rule, a union should not be required to pay legal costs for deciding to pursue the interests of one employee over another where the underlying motive has not been found to be objectionable; that is, a breach of the Act. (p.6).

Cindy Chan Piper, IRC No. C245/92

UNION AND EMPLOYER MAY LEGALLY AGREE TO MODIFY PROVISIONS OF A COLLECTIVE AGREEMENT

A union and an employer have the legal right to agree to modify terms of a collective agreement. The Union's responsibility is outlined in the following quote:

The issue of seniority rights has always presented difficulties for trade unions. Inevitably, there are competing interests at stake. The union, however, must act in the best interest of the membership as a whole when administering the collective agreement and this duty often means particular members may be dissatisfied with the union's decisions…. A union will not violate Section 12 of the Code as long as it achieves this balance in a rational, non-discriminatory manner, and acts on the basis of legitimate reasons.

Peter H. Blackburn, BCLRB No. B180/94, p.6.

UNIONS HAVE A WIDE LATITUDE IN COLLECTIVE BARGAINING

The Board allows unions a wide latitude in how they conduct collective bargaining and will only interfere if the union's conduct is blatantly arbitrary, discriminatory or in bad faith, as pointed out in the following passage:

The Board recognizes that in an effort to obtain the maximum benefits for its membership, a trade union may be forced to make critical choices and trade-offs that may affect its membership unequally and that a trade union may be required to go so far as to abandon in some respects the interests of certain individual members…. For these reasons the Board allows trade unions a wide latitude respecting its conduct during collective bargaining. The Board will only intervene when the trade union's conduct is blatantly arbitrary or discriminatory or when it can be concluded that the employees affected have not been treated in good faith.

Mervin Klaudit, BCLRB No. B85/93, p.6.

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(Collective Agreement Arbitration Bureau)