Duty of Fair Representation

Duty of Fair Representation - MB Labour Relations Act s. 20

Every bargaining agent which is a party to a collective agreement, and every person acting on behalf of the bargaining agent, which or who, in representing the rights of any employee under the collective agreement, (a) in the case of the dismissal of the employee, (i) acts in a manner which is arbitrary, discriminatory or in bad faith, or (ii) fails to take reasonable care to represent the interests of the employee; or (b) in any other case, acts in a manner which is arbitrary, discriminatory or in bad faith; commits an unfair labour practice.

The duty of fair representation does not impose an absolute duty on a union to carry every grievance filed by an employee to arbitration.

Where a grievance lacks merit, or where the interests of the individual must yield to the greater interests of the group, a union must be free to settle or drop a grievance.

The standards of a professional advocate are not to be imposed on union officials.

A union must put its mind to the merits of a grievance and attempt to engage in a process of rational decision-making.

A union must take a reasonable view of the problem before it, and arrive at a thoughtful judgment about what to do, after considering the various relevant and conflicting considerations.

A union’s lack of investigation of, or superficial handling of, an employee’s complaint will violate the duty of fair representation.

A union must not discriminate or distinguish in treatment between any members of a bargaining unit, unless for legitimate reasons.

A union acts in bad faith when its conduct is motivated by ill-will, hostility, dishonesty or sinister purpose.

A union may violate the duty of fair representation through acts of serious negligence, but the standard of care required will be varied according to the seriousness of the consequences and the nature of the job interest at stake.

On matters of critical job interests (dismissal), a high degree of recognition of individual rights will prevail in duty of fair representation complaints.

Manitoba’s duty applies only to contract administration, not contract negotiation.

The complaint must be filed, in writing, with the Labour Board. There are no specific time limits but the Labour Board can dismiss a complaint for “undue delay”. (LRA s.30)

The employer will be named as a party in duty of fair representation complaints, and a Board may direct the employer in any remedy ordered.

Where compensation is a remedy for a breach of the duty of fair representation, and the union has caused the employer’s damages to be greater by reason of its breach of the duty, the union will be liable for that portion of the damages.

The Employer will normally remain liable for the portion of the damages, which it would have had to pay had there been no breach of the duty.

The supreme Court of Canada has ruled that unions cannot be sued in the courts for breach of DFR where there is legislation allowing employees to complain to a labour tribunal.

Rights of a Union Representative

The rights of a union representative arise mainly through the specific wording of each individual collective agreement.

In dealing with management, a union representative is appearing in a representative capacity on behalf of the Union, and not in his/her personal capacity as an employee.

In conducting union business, a representative is therefore, entitled to be treated as an equal, and not as a subordinate.

A union representative should not be subject to discipline for legitimate and proper union activity, which cannot be reasonably dealt with outside of working hours.

The protection or immunity afforded to the union representative is only applicable when...

• They are engaged in lawful union activity;

• Any statements made are not made maliciously, recklessly, or when such statements are known to be false;

• Any statements or actions do not amount to a deliberate campaign to harass any individual or employer;

• Any statements or actions do not publicly denounce a member of management for matters unrelated to the particular issue at hand, or without all internal avenues for dispute resolution having been exhausted;

• Any statements or actions fall inside the scope or range of normal union activities;

• The statement or action does not amount to a personal threat or assault upon a management official;

The ultimate objective of the activity of a union representative is to convince management that their position is wrong and contrary to the terms of the Collective Agreement.