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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.
Top
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.
Top
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.
Top
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.
Top
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.
Top
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