A union’s duty of fair representation: gift or grief?

by Dr. Rey Pagtakhan

A labour union’s duty of fair representation (DFR) for its rank-and-file member dismissed from employment is a highly valued gift if diligently performed, but becomes a source of grief if neglected. What does DFR exactly mean?

Clarity of labour law

Labour law is clear on this duty. “In the case of the dismissal of the employee,” Section 20 of the Manitoba Labour Relations Act, reads:

“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,

(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;

commits an unfair labour practice.”

Yes, a union is derelict in its duty to its individual members and becomes subject to appropriate remedial orders when it fails to advance their termination grievance to arbitration in a manner and conduct that violates any of the four elements of standards as written in law.

Background

As a community volunteer, I only became acutely aware of DFR when called upon for advice and assistance by a fellow citizen whose employment, I agreed, was unjustly and wrongfully terminated. Deprived of a significant source of livelihood for his family and naturally anguished and financially unable to hire a labour lawyer, he almost gave up fighting for his cause. It is laudable that the Manitoba Labour Board allows non-lawyers to offer help.

Made aware of his legal right under the provisions of the Act, he filed a complaint against his union for breach of DFR. Against the replies of the lawyers for both the union and the employer who argued for dismissal of the complaint, the Manitoba Labour Board ruled to hold a full hearing on the complaint and recommended that the parties (the employee, the union, and the employer) hold a mediation conference. Said ruling and recommendation have rebuilt the complainant’s confidence and strengthened his trust in the rule of law and in the doctrine of natural justice. [This doctrine, which is about fundamental fairness and due process, will be a topic for my next column.] Finally, a mediated settlement was achieved – a true measure of triumph for labour justice.

While it is better to achieve less through peace than to achieve more through war, far better still is to prevent unnecessary injury and injustice. What then, are some lessons society can collectively learn from this experience?

Discouraging trends

First, I should say that my encounter with this community experience was an eye-opener. As a strong supporter of collective bargaining, I do remember history lessons of the bloody battles between coal miners and mine owners who cared little for the sacrifice of life and limb that workers made to haul their coal from the earth. I found it very disturbing that today a union member had to file and win a complaint against his own union to obtain labour justice. It has always been my expectation that unions exist to champion the well-being of their collective and individual membership and not to block the only final avenue for labour justice – an arbitration hearing – for its aggrieved rank-and-file members.

Also, I found it discouraging to know that, on average, only about 5 per cent of the cases filed and heard (that is, one in 20 complaints) are won. There must be more than one reason for this very low chance of success, but there is no space to fully explore them here. Lack of representation by a lawyer very likely plays a dominant role. Be that as it may, unions dread being found in breach of DFR.

Powerful take-away lessons

The above notwithstanding, I am encouraged to realize that DFR has continued to positively evolve in the USA and in Canada since the mid-1940s to prevent an individual employee from being pitted against the economic giants of big business and big labour. More and more, application of the “due process analysis” on complaints brought forward for judicial and quasi-judicial adjudication has balanced the sole authoritative discretion of unions to handle grievances with its DFR obligation to protect the rights of its individual members. But we should go beyond this laudatory tradition.

Even as I see the first and the fourth elements in the Manitoba Labour Relations Act (prohibition against arbitrary conduct and failure to take reasonable care, respectively,) as the bastions of strength for individual union members, an aggrieved individual member needs a lawyer at many stages.

Legal aid program

A program of legal aid for employees dismissed makes eminent sense. Dismissal is so damaging financially and psychologically to the individual person and relief looks distant. Moreover, the employees’ families are at once adversely affected. Meanwhile, the impact on union and employer is not directly personal and the two have ready access to hire their lawyers. Providing legal aid to union members levels the playing field.

A funding model for such a program may involve contributions from government, a union, law society, and faculty of law. I see such legal aid playing a vital role at many stages: during preparation and filing of the grievance, during preparation and filing of the complaint against DFR, during rebuttal to replies of the union and employer, at the hearing before the Manitoba Labour Board, and during arbitration.

Intuitively, a legal aid program, as envisioned, would not only ensure adequate representation of the employee, but also may actually decrease the occurrence both of unfair union representation and bad-faith and unjust dismissal by employer.

Value of a mediated settlement

One immediate benefit of a mediated settlement is the realization that a decision agreed to is not imposed. While this is true, I feel the employee should also be given guidance by his own lawyer via legal aid. Moreover, offers and counter offers from the three parties must preferably be in writing under the leadership of a mediator to avoid misunderstanding. The process for consideration of options must be clearly explained and a deadline for settlement must be agreed upon in advance, in relation to the start of hearing the case.

Need for record keeping

Employees are well advised to keep a diary of their workplace environment: of upsetting and exciting events, of disciplinary or non-disciplinary meetings, and of notices of meetings attended. They should promptly ask their union representatives for a copy of notes taken during such meetings and following their meetings preparatory to filing of the grievance. Also, they should request an updated copy of their personnel file shortly following a meeting with the human resources consultant and periodically once a year.

In a similar vein, they should attend meetings of their union membership and board of directors and ask for copies of the minutes of meetings to stay informed. Particularly, they should ask for the minutes of the board that considered their grievance. They should also keep records of these minutes.

It is advisable to make their requests in writing.

Need for new public policies

Since an employer has to show proof for allegations of cause for dismissal, such proof must automatically accompany any letter of dismissal. In this way, employees would have the assured opportunity to give their side, point-by-point, to their union reps. Also, such accountability on the part of the employer’s agent would make that agent careful and respectful, not callous and humiliating. Intuitively, such new policy on the part of the employer would, I anticipate, engender a more humane and productive workplace environment.

Moreover, the boards of Directors of unions must assume some personal accountability for decisions made by the board to reflect dutiful attention to ethical corporate responsibility as similarly asked for of other boards of directors in the province. As an example, the union’s board of directors should make it established policy, codified in its by-laws if need be, that a member whose grievance is before the board for decision whether to advance to arbitration or not should automatically be given due notice of the forthcoming meeting and be invited, with or without his or her legal representative, to present his or her side. Also, members of the board should be briefed on the doctrine of natural justice and the principle of recusal during board deliberations.

Dr. Rey Pagtakhan is a community volunteer and a retired physician, professor and parliamentarian.