FAQ - Duty of Fair Representation

 


 
 
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Duty of Fair Representation


Duty of Fair Representation (Complaints about a union)

When a union is certified, or is voluntarily recognized by the employer, it becomes the exclusive bargaining agent for all employees in a bargaining unit. The union then negotiates and enforces a collective agreement. If a union believes the employer is violating the collective agreement, it enforces the agreement  by filing a grievance. Unions have a large amount of discretion when they deal with grievances. For example, unions may settle or drop grievances even if the affected employee disagrees. To counterbalance this power, the Labour Relations Code requires unions to fairly represent all members of the bargaining unit on matters in the collective agreement. This duty of fair representation requires unions act in good faith. Unions may not act arbitrarily or discriminatorily when processing grievances. Employees or former employees may complain to the Labour Relations Board if they believe a union has not fairly represented them. For more information, consult Information Bulletin #18.

Questions:


Q: If I file a duty of fair representation complaint, what happens?

A:   A Board officer is assigned to handle the file. The Board asks the union to file a written response.  The officer tries to mediate the dispute. If the parties are unable to settle the dispute between them, the officer sends the file and its relevant documents to an administrative panel of the Board for review. If the panel finds the complaint may be valid, it will then schedule a full hearing. The panel may also dismiss the complaint if it is without merit.

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Q: What responsibilities do I have if I think that my union is violating its duty of fair representation?

A:   Employees must protect their own interests. Employees must follow the grievance procedure set out in the collective agreement. They must report a problem to the union and co-operate with the union. Employees must also act to minimize their losses. For example, they must seek new employment if they are dismissed. The Code protects unions from losses caused by the employee’s own conduct. If you believe the union is violating its duty of fair representation, you must file a complaint with the Board within 90 days of when you knew or, in the opinion of the Board, ought to have known, of the actions or circumstances giving rise to the complaint.

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Q:  If the Board finds that my union violated its duty of fair representation, what can the Board do?

A:   When a complaint is made, the Board examines the fairness of the union’s conduct in handling the grievance. If the Board finds the union violated its duty, it may simply give a declaration that it violated the duty. It may also extend the time limits on taking the grievance forward to allow a union to proceed with the grievance. Finally, the Board may award damages. These damages are meant to remedy any loss suffered. The Board does not have the power to award punitive damages nor can it award monies for emotional damages or other unspecified damages. In determining damages, the Board considers the employee’s effort to minimize that loss.

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Q:  I think the union treated me fairly, I just don’t like their decision not to take my grievance to arbitration. Can I file a duty of fair representation complaint about this?

A:   When a complaint is made, the Board examines the fairness of the union’s conduct. This is an examination of the union’s behaviour—not an appeal of the union’s decision. Your union’s constitution may contain provisions for appealing a union’s decisions. If you wish to appeal a union decision—as opposed to complaining the union violated its duty of fair representation—you must follow those procedures.

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Q: If I want help with a duty of fair representation application, where can I get it?

A: If you have questions about the duty of fair representation, you may contact Board officers in the Board’s Calgary or Edmonton offices. Board officers are impartial employees of the Board and do not advocate for the interests of unions, employees or employers. Rather, they process application on behalf of the Board. They are able to answer questions about what the duty of fair representation is and how you file a complaint. You may choose to be represented by a lawyer in this process. You can find a labour lawyer in your area by calling the Law Society of Alberta’s lawyer referral hotline at 1-800-661-1095.

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