The Union’s Duty of Fair Representation:
Dealing with difficult cases fairly and efficiently

Post-Conference Workshop
Ottawa

Presented by Lancaster House

►covering employment in both federal and provincial jurisdictions◄

Thursday, April 12, 2012
Half-Day Interactive Session
1:00 p.m. – 4:30 p.m.

The Westin Ottawa Hotel
11 Colonel By Drive, Ottawa, ON K1N 9H4

• CPD for Members of the Law Society of Upper Canada:
  3.5 Substantive Hours; 0 Professionalism Hours;
  Not accredited for New Members.
• This program has been approved by the Law Society of New Brunswick for 3.5 Continuing Professional Development hours.
• This program has been approved by the Law Society of Saskatchewan for 3.5 Continuing Professional Development credit hours.

In a unionized workplace, the union is the exclusive bargaining agent for all the employees in the bargaining unit, both in negotiating terms and conditions of employment deciding whether to grieve violations of the contract. The union’s decisions, therefore, affect individual employees greatly. As a check on the union’s exclusive representation power, courts and labour relations statutes throughout Canada impose on unions a duty of fair representation. A union cannot be arbitrary, discriminatory or act in bad faith in making decisions that affect an employee it represents. In this workshop, Lancaster’s experts will elaborate on this basic union duty and provide attendees with guidance on handling difficult representation issues fairly and effectively:

• Union Responsibilities Generally: What have recent decisions said about the union’s duty of fair representation in negotiations? What have they said about the union’s duty when deciding to pursue (or not to pursue) a grievance to arbitration?

• Duty to Request and Provide Information: What level of communication is a union required to maintain with a member in respect of the progress of his or her grievance? What duty does a union have to consult with the grievor about the circumstances of his or her grievance?

• Mistakes: When does a mistake made by a union constitute a breach of the duty of fair representation? Is “simple negligence” enough? What should the standard be? When entering into a settlement agreement with an employer, what level of due diligence is required to ensure that the deal is a good one, and how does the answer to this question depend on the matter at issue?

• Employer’s Role: When can an employer be added as a party in a duty of fair representation complaint? Can an employer be liable along with a union?

• Human Rights: What duties do unions have under human rights legislation? What is the difference between complaints of discrimination that should go before labour boards as duty of fair representation complaints and complaints of discrimination that belong before a human rights commission or tribunal? When will unions be held liable for discriminatory provisions contained in a collective agreement? What types of damages are being awarded by human rights tribunals against unions in these cases? Should labour boards find that such provisions constitute a breach of the duty of fair representation?

• Capacity Issues: What is the union’s duty of fair representation with regard to a grievor whose mental state calls into question his or her ability to make rational decisions about his or her grievance? Should the union ask that a litigation guardian be appointed for the grievor? Can the union act as a litigation guardian? Can the union settle the grievor’s complaint without the grievor’s consent or over the grievor’s objections?

• Pre-Hearing Processes: Across Canada, what processes do labour boards have for pre-vetting duty of fair representation (DFR) complaints? Which boards have instituted requirements for pre-hearing settlement meetings? Where these processes exist, has the efficiency of the process improved?

• Remedies: Should courts award damages to employees based on union breaches of the duty of fair representation? How does the availability of recourse under provisions of labour relations legislation affect the courts’ jurisdiction to make such awards? What types of remedies do labour boards typically award for breach of the duty of fair representation? How do these remedies affect employers and other bargaining unit employees? Why is the success rate of DFR complaints so low? Has imposing a duty of fair representation on unions served the purpose courts and legislatures intended it to serve?