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It is not uncommon for Union members to feel aggrieved with the conduct of their Union. This can be especially true when a grievance stemming from a termination of employment is settled or withdrawn by the Union over the objection of the employee. Collective agreements almost invariably provide that the Union has the exclusive right to deal with the employer in employment related matters. In some cases, the Union might consider that a grievance has insufficient merit or is contrary to the interests of the membership, and the grievance would therefore be withdrawn or settled. The question becomes: what recourse does a Union member have in such cases?

Section 74 of the Ontario Labour Relations Act provides that a Union “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.” The wording of the section is significant. Unlike professionals such as doctors, lawyers, accountants, engineers and others, who are held to a standard of care not to act in a manner that is professionally negligent, Unions are protected from liability so long as they act in good faith. Decisions of the Labour Relations Board have commented on this duty in the context of termination grievances. In a case that I was involved in, Lenahan v. Canadian Auto Workers Local 222, [2004] O.L.R.B. Rep. 591, the Vice-Chair of the Board stated:

The Board’s test for determining whether a trade union has violated its duty of fair representation is well established. The trade union can make mistakes. It is not the role of the Board to second guess the trade union. However, as was stated in Sharon Parker, [2003] O.L.R.B. Rep. July/August 653, the trade union must provide a persuasive account for its decision not to process the grievance further. In doing so, the trade union must prove that it put sufficient consideration into its decision in accordance with the seriousness and complexity of the matter. A termination grievance is among the most serious of grievances. In providing the Board with a persuasive account of why a grievance relating to termination is not pursued, the trade union must demonstrate that it has carefully considered the matter.

Claims against Unions can be difficult to win. However, as set out in decisions of the Labour Relations Board, the Union must carefully review a termination grievance before deciding that it is not worthy to proceed through a hearing before an Arbitrator. Given the importance of such matters to the affected employee, that is how it should be.