Duty of Fair Representation - What Does it Mean?

    Introduction

The purpose of this Practice Guideline is to answer questions commonly raised by employees who wish to complain that they have not been properly represented by their union.  If you have any additional questions regarding the duty of fair representation, or other sections of the Code which may deal with union members and their union, please contact our Information Officer at 660-1300.

  General Explanation

The "duty of fair representation" as stated in Section 12 of the Code provides that a trade union shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing or referring a person to employment.  These words have been interpreted in a number of cases by the Labour Relations Board.  This Guideline provides some questions and answers that will assist you in understanding what the terms arbitrary, discriminatory and bad faith mean in the context of a union's role in representing employees in a bargaining unit or referring them for employment.

Section 12 of the Labour Relations Code provides as follows:

  Duty of fair representation

12. (1)

  A trade union or council of trade unions shall not act in a manner that is arbitrary, discriminatory  or in bad faith
  (a)

in representing any of the employees in an appropriate bargaining unit, or

 

(b) in the referral of persons to employment whether or not the employees or persons are members of the trade union or a constituent union of the council of trade unions.
     

2

   It is not a violation of subsection (1) for a trade union to enter into an agreement under which

 

(a)  an employer is permitted to hire by name certain trade union members,
  (b) a hiring preference is provided to trade union members resident in a particular geographic area, or

 

(c) an employer is permitted to hire by name persons to be engaged to perform supervisory duties.
     

3

  An employers' organization shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing any of the employers in the group appropriate for collective bargaining.

Section 12 applies to all persons in the bargaining unit who are employees represented by the union, regardless of whether they are members of the union.

   Questions and Answers

Q: Is the handling of my grievance the exclusive responsibility of the union?
A:

Yes. Should the union decide to accept your grievance, it has the responsibility of processing the grievance through the steps in the grievance procedure provided for under the collective agreement.

   
Q: What rights do I have with respect to my grievance?
A: You have the right to have the matter thoughtfully investigated by the union.
   
Q: What if they will not talk to me?
A:

The union is expected to discuss the merits of the grievance with you, in order to arrive at a reasoned judgement taking into account the various conflicting considerations.

   
Q: Can I insist that my grievance be processed on to arbitration?
A:

No. The final decision on how far a grievance should be processed, and whether or not a grievance should go to arbitration, is made by the union and not a grievor.

   
Q:

Can the Labour Relations Board require the union to take my grievance to arbitration?

A:

Yes, but only after the Board is satisfied that the union has not fulfilled its duty of fair representation under Section 12 of the Code.

   
Q: What kinds of complaints can be reviewed under Section 12?
A:

Most complaints received by the Board are disciplinary grievances and grievances concerning the interpretation of a collective agreement.  However, Section 12 is not just limited to grievances - it can include bargaining and other matters.

   
Q: What does the term "arbitrary" mean in the context of Section 12?
A:

A union acts arbitrarily when handling a grievance if its conduct is superficial, capricious, indifferent, or in reckless disregard of an employee's interests.  For example, if a union met with the employer and received a different version of the grievance than the grievor's and then dropped the grievance, without giving the grievor an opportunity to answer the employer's version, it might be found to have acted arbitrarily.

   
Q:

Does the Board consider careless or negligent mistakes by a union in the handling of a grievance to be arbitrary conduct?

A:

Inadvertent errors or poor judgement are not usually seen to be arbitrary, but flagrant errors or gross negligence may be found to be arbitrary.

   
Q: Must the union be correct in its assessment of a grievance?
A:

The union need not be correct in its assessment if it can establish that it investigated the grievance and in the circumstances came to a thoughtful, reasoned decision as to its disposition.  The Board will take into consideration the size and resources of the union, and the skill, experience and expertise of the union representative.

   
Q: What is discriminatory conduct?
A:

Factors such as race, religion, sex, age, physical or mental disability should not influence the way a union handles a complaint or grievance.  A union must not distinguish among employees in a bargaining unit unless there are good reasons for doing so.  Like situations should be treated in a like manner unless some other treatment is justified by the circumstances.

   
Q: What is bad faith?
A:

A union must not make decisions that are motivated by ill-will.  If an employee can prove that a decision is influenced by personal hostility, revenge, or dishonesty the union will be found to be in violation of Section 12(1).

   
Q:

Is a union under the same duty of fair representation in its referral of persons to employment?

A:

Yes.  Section 12(1)(b) imposes a duty of fair representation on a union referring persons to employment.

   
Q: How can I file a Section 12 complaint?
A:

Section 12 complaints must be made on a form supplied by the Labour Relations Board.  Application forms are available from the Board at Suite 600, Oceanic Plaza, 1066 West Hastings Street, Vancouver, B. C., V6E 3X1 - telephone 660-1300, fax 660-1892) or at any Employment Standards Branch office of the Ministry of Labour and Citizens' Services in British Columbia.

   
Q: Is there a time limit for filing a Section 12 complaint?
A:

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).

   
Q: Is there anything else I need to do before making my application?
A:

You must complete any internal union procedure which is available to you.  For example, you may be required to file a grievance.  You should also check to see if your local union has an appeal procedure.  Your national or international union may hear appeals from decisions by local unions.  That process must be completed before you file a Section 12 complaint.  The only exception is where you can show the Board that an internal union appeal is not practical because of the length of time you would have to wait, or because of costs such as travel costs which you would have to meet, or there is a good reason to believe it cannot provide you with an appropriate remedy.

   
Q: How does the Board handle a Section 12 complaint?
A:

The procedure for handling a complaint is set out in the Labour Relations Code under Section 13.  It states:

 

13.  (1)  If a written complaint is made to the board that a trade union, council of trade unions or employers' organization has contravened section 12, the following procedure must be followed:

(a)  a panel of the board must determine whether or not it considers that the complaint discloses a case that the contravention has apparently occurred;

(b)  if the panel considers that the complaint discloses sufficient evidence that the contravention has apparently occurred, it must

 

(i) serve a notice of the complaint on the trade union, council of trade unions or employers' organization against which the complaint is made and invite a reply to the complaint from the trade union, council of trade unions or employers' organization, and

(ii) dismiss the complaint or refer it to the board for a hearing.

 

(2)  If the board is satisfied that the trade union, council of trade unions or employers' organization contravened section 12, the board may make an order or direction referred to in section 14 (4) (a), (b) or (d).

 

When a Section 12 complaint is received, a copy is sent to the trade union and the employer for informational purposes only.  The Board will first review the complaint and determine whether or not there is a prima facie case; i.e. whether it contains sufficient relevant information to show that the union may have contravened Section 12 of the Code, assuming that the allegations in the complaint can be proven.

 

If there is NOT sufficient relevant information in the complaint, the Board will not proceed with the complaint.  If there is sufficient relevant information in the complaint, the Board will request a reply from the union and from any other party which may be affected.  The Board may also ask an Industrial Relations Officer to meet with the parties on an informal basis to clarify the issues, attempt to resolve the dispute, etc.  The Board will then either dismiss the complaint based on the written submissions or hold a hearing into the complaint.

   
Q: What is a prima facie case?
A:

That means that if everything stated in the application is correct, and is supported by evidence, and if there is no significant information missing, would the union be in violation of Section 12 of the Code.  In other words, the application must make more than mere allegations that the union has violated its duty of fair representation.  The application must provide sufficient details to support the allegations.

   
Q: If a hearing is held, do I have to get a lawyer?
A: You are not required to have a lawyer act for you.  The choice is yours.
   
Q: If I retain a lawyer, who pays?
A:

You should assume that you will be responsible for your legal costs associated with the proceedings before the Labour Relations Board.  Legal costs are awarded by the Board only under very exceptional circumstances.

   
Q: What about other costs?
A:

The cost of the hearing is paid for by the Board.  Other costs (such as fees for witnesses you may be calling) are your responsibility.  The other parties are responsible for their own costs.

   
Q: Will the hearing be held in Vancouver?
A:

The Board may travel out of Vancouver for the hearing if the Board's resources and time permit, and if it is more convenient for the parties.

   
Q: How will my decision be made known?
A:

The panel of the Board may issue an oral decision, or it will issue a written decision which is sent to the parties involved and eventually made available to the labour relations community in British Columbia.

   
Q: If the Board finds in my favour, what will happen to my complaint?
A:

The Board may rule that your grievance must be taken to arbitration and that you have the option of being represented by independent legal counsel.

   
Q: Who pays for that?
A:

The Board will decide.  In some cases, the union is required to pay some or all costs of the arbitration.

   
Q: Will the Board investigate my actual grievance?
A:

No, the purpose of Section 12 is to determine if the union acted in a manner that was arbitrary, discriminatory or in bad faith in representing you.  The Board will not rule on the merits of your grievance.

   
Q: Can I appeal if the Board dismisses my complaint?
A:

Yes.  An application for leave to apply for reconsideration can be made under Section 141 of the Act.  Applications for leave must be made to the Board in writing within 15 calendar days after the publication of a decision.  Applications must also be in accordance with the Rules and the Board's policy on reconsideration (see Brinco Coal Mining Corporation, BCLRB No. B74/93 (Leave for Reconsideration of BCLRB No. B6/93)).

   
Q:

Are there other Sections of the Labour Relations Code under which an individual may challenge certain actions of a trade union?

A:

Yes.  Section 10 gives every person the right to the application of the principles of natural justice, in disputes relating to matters in the constitution of the trade union, the person's membership in a trade union or discipline by a trade union.  Some principles of natural justice include the right to know the case against you and be given a reasonable opportunity to respond to it, notice of a hearing, and the right to be represented in some situations.  Section 10 also prohibits a union from suspending, expelling or imposing a penalty on a union member or refusing membership in the union to a non-member, if it does so in a discriminatory manner or because that person has refused or failed to participate in activity prohibited by the Labour Relations Code.  For instance, refusing to participate in an illegal strike which is contrary to the Code would not be a basis for a union to discipline a member.

   
Q: What if I have other questions?
A:

You may contact the Board's Information Officer at 660-1300. However, the officer is not able to provide advice on your specific complaint.


    Effective: 04/01/95
    Revised: 08/2001


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