The practice of labour law is highly specialized. Practitioners in the field act for either unions or management and never the twain shall meet. It is not uncommon however for union members to complain about the conduct of their union. Obtaining representation in these circumstances can be difficult. Union lawyers will not act on the member’s behalf in deference to existing clients and management lawyers are wary of treading into this area. There is a gap left to be filled.

Most of the applications that come before the Ontario Labour Relations Board are highly technical: applications for union certification, representation votes, failure to bargain in good faith, to name just a few. In these instances, counsel for the employer and union will play the lead role. It is primarily in the area of duty of fair representation complaints by a union member (and perhaps appeals under the Employment Standards Act) that there is scope for independent representation before the Board. This is what I propose to address.

Section 74 of the Labour Relations Act, S.O. 1995 provides that “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 any constituent union of the council of trade unions, as the case may be.”

It is immediately apparent that the standard for a breach of section 74 is very high. The union must not act in a manner that is arbitrary, discriminatory or in bad faith. Mere negligence is not enough. The common law duty of fair representation dates back to the mid 1940’s in the United States and represents a corollary to the union’s exclusive role to bargain on its members behalf and to commence and settle grievances. The rationale for the rule was well explained by the U.S. Supreme Court in Vaca v. Sipes 386 U.S. 171 (1967):

“Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. In L.M.R.A. § 203(d), 61 Stat. 154, 29 U.S.C. § 173(d), Congress declared that ‘Final adjustment by a method agreed upon by the parties is . . . the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement.’

In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated, and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as co-author of the bargaining agreement in representing the employees in the enforcement of that agreement. See Cox, Rights Under a Labor Agreement, 69 Harv.L.Rev. 601 (1956).

If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer’s confidence in the union’s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully.”

Clearly, it is in the context of grievance arbitrations that the scope for dispute between the union and a member will most frequently arise. The union might consider that the grievance has little chance of success or the grievance might raise an issue that could adversely affect the membership as a whole. If the union has a legitimate reason for refusing to file, or for withdrawing or settling a grievance, its conduct will not violate the duty of fair representation.

Disputes in the work place however can have very substantial consequences affecting the livelihood of the employee, including suspension or termination of employment. When a union decides not to pursue a remedy in such cases, the employee will often feel that his or her interests have not been adequately protected. Nonetheless, as a result of the statutory language, these cases can be very difficult to win. The key issue is the standard of conduct expected of a union when considering the interests of a member in the context of withdrawal or settlement of a grievance.

Although decided in the context of the common law duty of fair representation, the decision of the Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509 (S.C.C.) helpfully summarizes the scope of the duty and I believe applies equally to section 74 of the Ontario Labour Relations Act and similar legislation:

“The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and its consequences for the employee on the one hand and legitimate interests of the union on the other.
The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.”

In a more recent decision, Noel v. Societe D’Energie de la Baie James, [2001] 2 S.C.R. 207 (S.C.C.) involving the Quebec Labour Code, the Court stated:

“The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner. It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary; however the employee is not entitled to the most thorough investigation possible. The association’s resources, as well as the interests of the unit as a whole, should be taken into account. The association thus has considerable discretion as to the type and extent of the efforts it will undertake in a specific case. (See Adams, supra, at pp. 13-20.1 to 13.20.6)”

Complaints alleging a breach of section 74 are dealt with by a Vice-Chair of the Ontario Labour Relations Board. When a complaint has been filed, the employer or union will frequently seek to have it dismissed without a hearing as failing to disclose a prima facie case. This is similar to a Rule 21 motion under the Rules of Civil Procedure and is dealt with by way of written submissions. If the pleading states a proper case of a breach of the statutory standard, the complaint should not be dismissed. From that point, a labour relations officer will meet with the parties and attempt to either settle the complaint or narrow the issues. The matter will thereafter be referred to a Vice-Chair, who is empowered to decide the issues by way of a consultation, which is a more informal hearing of the parties and counsel, or to schedule a full hearing.

In a case from 2004 in which I was involved, Lenahan v. Canadian Auto Workers Local 222, [2004] O.L.R.B. Rep. 591, the Board had occasion to consider the conduct required of a union in the context of the withdrawal of a termination grievance. Vice-Chair Stephen Raymond authoritatively stated the test as follows:

“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] OLRB 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 a termination is not pursued, the trade union must demonstrate that it has carefully considered the matter.”

As the union failed to provide a persuasive reason for withdrawing the grievance, and indeed had failed to notify the employee that the grievance had been withdrawn, Vice-Chair Raymond held that a breach of the Act had been established and ordered that the grievance proceed to arbitration, that counsel of the Applicant’s choice be paid for by the union and that any time limits under the collective agreement be waived.

It must be noted that this is not the usual outcome of a section 74 complaint. Statistics indicate that the vast majority of such cases are dismissed, frequently without a hearing. Undoubtedly, this is a reflection of the statutory standard and the reality that many proposed grievances simply do not have sufficient merit to warrant pursuance before an arbitrator, no matter how strongly the affected employee might feel about it.

It must also be noted that as a result of the comprehensive statutory scheme and broad remedial powers entrusted to the Board, the Courts have held that duty of fair representation complaints must be pursued before the Board and not before the Courts. This was the holding of the Supreme Court of Canada in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, [1990] 1 S.C.R. 1298 (S.C.C.) in the context of the Canada Labour Code and the Court of Appeal for Ontario recently affirmed this holding in the context of section 74 complaints in Vernon v. General Motors of Canada (2005), 250 D.L.R. (4th) 259 (Ont. C.A.).

Despite these challenges and limitations, duty of fair representation applications often raise interesting issues and allow for the rare opportunity in which independent counsel who does not practice labour law on a regular basis can appear before the highly skilled decision makers at the Ontario Labour Relations Board.