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September 30, 2011

Arbitrary, discriminatory or in bad faith? What’s it mean?

The Ontario Labour Relations Act, 1995 provides that an employee can bring a complaint against their union where they believe that the union has failed in their duty to fairly represent them (hence, a duty of fair representation (“DFR”) complaint).  Section 74 of the Act provides:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

Since this is a complaint against the union, and no remedy can be made directly against the employer, why would the employer care?  Most DFRs arise where the union refuses to pursue an employee’s grievance to arbitration.  Far less frequently, a DFR arises where there is a conflict during bargaining where the union choses to pursue one demand or group of demands and abandon another or another group of demands.

Employers will generally intervene (and would want to intervene) in these DFR proceedings for a variety of reasons, including to provide additional information to the Board and, generally, ensure that they remain “in the loop”.

More often than not, these applications are dismissed (often without a hearing).  In fact, the Ontario Labour Relations Board has developed a special procedure for processing these complaints and the hearing proceeds by way of a “consultation”:

  1. Duty of Fair Representation Applications
  2. The Duty of Fair Representation – What Does it Mean?

The OLRB recently discussed the test that they will apply under section 74 in this case.   The Board, in dismissing the application as being premature and without prejudice to the applicant’s ability to re-file the application, referred to Chrysler Canada where the Board wrote:

36. Honest mistakes, errors in judgement, and innocent misunderstandings do not constitute conduct which is prohibited by section 74. Nor does the fact that the Board (or some other labour relations expert) might have arrived at a different conclusion necessarily suggest a breach of the duty of fair representation by a trade union. A trade union’s approach or decision(s) with respect to a grievance or a proposed grievance must be more than merely “wrong”: it must be arbitrary, discriminatory or in bad faith.

37. There is a great deal of Board jurisprudence which deals with the duty of fair representation, both generally and specifically with respect to the meaning of the words “arbitrary”, “discriminatory” and “in bad faith”. I find it unnecessary to engage in a lengthy analysis or review of that jurisprudence. Suffice to say that:

(a) “arbitrary” means conduct which is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all relevant factors;

(b) “discriminatory” is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so;

(c) “bad faith” refers to conduct motivated by hostility, malice, ill-will, dishonesty, or improper motivation.

The Board also observed that “a Union’s duty under section 74 is confined to matters that arise in the representation of employees with respect to matters arising out of the collective agreement in relation to the Employer” and did not apply to the employees’ human rights application.

The test that an applicant has to meet is very high. The mandate of any union by definition requires that they make choices and decisions about competing interests of their members.  With a grievance, do they pursue it to arbitration, or do they not pursue it?  That’s their job, and the Board doesn’t want to tie their hands by putting in place a test under section 74 that is so low that it prevents unions from making tough choices and decisions.  The case law is clear.  It is rare that the Board will intervene in internal union matters unless the circumstances make this clearly unavoidable.