The Duty of Fair Representation:
“a form of words...”?
Bernie Adell
Faculty of Law
Queen’s University
“[T]he duty of fair representation . . . is almost
without exception a form of words which holds
the promise to the ear and breaks it to the heart.
Even its advocates doubt its efficacy.”
• Clyde Summers, 1962
Lots of DFR complaints
• “We’re no longer the Ontario Labour Relations Board –
we’ve become the Ontario Duty of Fair Representation
and Construction Industry Grievance Board.”
• A search of the CanLII OLRB database on the terms
"DFR and discrimination" since 2001 turned up about 300
cases
• In only 8 was the complaint upheld, either partially or
completely.
• None of the 8 involved discrimination on a ground
prohibited in the HR Code.
Jack Kroner -1967
• “It is curious how easily the liberal conscience, once
having identified the interest of the trade union with that of
the individual worker in terms of his struggle against the
employer, is unable to part with the viewpoint when the
individual stakes out his claim against the institution
itself.”
-Jack L. Kroner, “The Individual Employee – His ‘Rights’ in Arbitration
after Vaca vs. Sipes,” in T.G. Christensen (ed.), NYU 20th Ann. Conf. on Labor
(Albany, NY: Bender), 1967, 75 at 88.
Kroner 1967
• Kroner on the practical refusal to consider the merits of an
employee’s grievance in a DFR proceeding: …”while
immunizing the parties from the rank-and-file grievant, it
opens the door wide to the political opposition, the
lavatory lawyer, the minority unionist, and the crank. …
[T]he crank can have a field day . . .”
- Kroner, p. 82.
Laskin 1963
Bora Laskin, “Collective Bargaining and Individual Rights” (1963) 6
Can. Bar J. 278:
• “I would ... assert that employees should be limited to the machinery
of dispute adjustment set up by the collective agreement where they
assert claims comprehended by the agreement. But fundamental to
this assertion is the proposition that the dispute machinery must be
open to full utilization by the employee who chooses to process his
claims by his own unaided efforts. ...” (p 291)
• “The justification for permitting individual processing is not merely to
strike a blow for individualism; it is to guard against possibly unfiar
representation or discriminatory or negligent representation, or even
denial of representation, of an employee’s interests by his bargaining
agent. . . . Rather than let the matter rest on some right of the
employee to compel the Union to take up his case – which may even
turn out to be frivolous – it is better to meet the issue squarely by
permitting the employee to have the same right as the Union has to
invoke the grievance procedure, but without necessarily excluding the
Union from participation.” (p. 287)
The antithesis of “direct access”
• A long time ago (in 1970, and again in 1986), I suggested that DFR
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proceedings “have the inherent flaw of pitting employee against
union, in what is often a bitter internecine fight, before even getting to
the main event: the employee’s claim against the employer.”
I then asked (a rhetorical question): “Is it necessary to make a
prolonged, three-sided donnybrook out of a controversy which might
well yield quickly to a one-step, bipartite hearing on the merits
between employee and employer?” (11 QLJ 251 at 254)
In today’s terms, the DFR is the antithesis of direct access.
By definition, the DFR relates to a dispute between an employee and
an employer – but it shunts that dispute off to a proceeding between
the employee and the union (a proceeding where the employer also
often feels obliged to participate).
And it’s very unlikely that the matter will ever get back onto the main
track.
My prescription, back in 1986
• Re DFR in grievance processing:
“The duty of fair representation cannot bear the load which it is expected to
bear in the grievance processing area, and reform is required to give
individual employees the right to carry their own grievances to arbitration
without going through a duty of fair representation proceeding.”
• Re DFR in collective bargaining:
“In contrast, a different sort of balance between collective and individual rights
is called for in the negotiation of collective agreements. Our existing law in
that area correctly gives individual employees very limited rights to challenge
provisions agreed to at the bargaining table.”
The union veto
• It’s not really the DFR that I object to. Our labour boards have
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generally done the best they can with it.
What I do object to is the union veto on access to arbitration.
That veto doesn’t exist anywhere in the industrialized world
outside of the US and Canada. Labour courts and labour
tribunals almost everywhere are equally accessible to all
employees, whether with or without union support.
As far as I know, the closest analogue to our system is in
Sweden, where an employee who complains that the employer
has violated his or her collective agreement rights can’t go to
the Labour Court unless he has union support, but can go to
the other courts.
Why do we need the union veto in Canada, when other labour
law systems that are just as protective of collective employee
rights have long been able to do without it?
More specifically, on the topic of this
workshop -• Does the DFR hold the union to a higher standard of
representation where the employee alleges that the
employer discriminated on a prohibited ground?
• Beginning with a Saskatchewan case in 1997, a few DFR
cases required unions to be more proactive than usual in
handling grievances alleging prohibited-ground
discrimination, especially for workers with disabilities.
• But by 2002, when I last wrote on the DFR, (in the Labour
Arbitration Yearbook), a few other cases had indicated a
move back to what Kroner called the institutional mindset.
Current state of the substance of the DFR in
discrimination cases: the Bingley bunch
In more recent years, a few cases – mainly in the CIRB –
have taken up the “extra measure of care and
assertiveness” idea:
• Grace Bingley 2004 CIRB 291 at para 83:
“The case law leaves little doubt that to discharge their duty of fair representation,
unions are required to take an extra measure of care and show an extra measure
of assertiveness when representing a member who is alleging a violation of
statutory anti-discrimination rights. Thus to the extent that the union demonstrates
that it was reasonably careful and reasonably assertive, labour relations boards
will not likely worry about whether the union’s decision not to pursue a grievance
is correct on the language of the collective agreement, or even on the language of
the applicable human rights statute.”
• Barbara Pepper 2009 CIRB 453 at para 38 :
“…when a grievance involves an accommodation issue, the union is expected to
be proactive and more attentive in its approach (see Grace Bingley).”
What has changed since 2002?
It’s now considerably clearer than it was in 2002 that grievance
arbitration has extensive (and usually final) authority over antidiscrimination rights, as well as many other employee statutory
rights:
• - Parry Sound 2003
• - Tranchemontagne 2006 -- "Since Tranchemontagne, tribunals other
than human rights commissions have rightly assumed that, absent
legislative intent to the contrary, they have concurrent jurisdiction to
apply human rights legislation." – Abella J. in Figliola, para 21
• - Figliola 2011
• - More experience with statutory downloading of other employee rights
enforcement to grievance arbitration: e.g., Ont. ESA.
• - In the other direction -- Morin (2004) pushes DFR-in-negotiations
disputes involving HR issues into the HR forum, which may be why we
see so few DFR-in-negotiations cases today.
Interface between DFR and HRTO
• Morin (SCC 2004) is the key case – the two-tier case that
Elizabeth Shilton has written about (too unsympathetically,
in my view).
• McLachlin CJ made what I think is the very valid point that
in contrast to Parry Sound, the unions in Morin were
opposed in interest to the complainants and therefore not
in a good position to press their grievances.
• That point may help to explain why there have been so
few DFR-in-negotiations complaints in the decades since
the use of the human rights forum really took off. Where a
complainant alleges that a collective agreement itself
discriminates on a prohibited ground, the HR forum is a
better place to go because there is no union veto.
Elizabeth Shilton on Morin
In “Choice, but No Choice” (forthcoming), Elizabeth Shilton says:
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Morin, the union “was an active party to the alleged discrimination. The
position of the negotiating parties that an arbitrator had exclusive
jurisdiction over the dispute was opportunistic; since they controlled access
to an arbitrator, there was no realistic prospect that the dispute would ever
reach an arbitrator through normal grievance channels. It is not surprising
that the majority of the court saw a vacuum here that only an HRT could fill.
The problem for subsequent decision-makers attempting to apply this factor
is the court’s failure to articulate a clear distinction between human rights
complaints that will not get to arbitration because the union is an active
party to the alleged discrimination and cannot challenge it in good faith, and
those that will not get to arbitration simply because the union, carrying out
its normal grievance screening functions, decides not to send them there.
This line needs to be drawn more intelligibly.”
• In my view, that is too vague and risky a line to draw.
• A conflict of interest is a conflict of interest is a conflict of interest.
Example of OLRB recognition of conflict of
interest
• Harris 2009 CanLII 33987 (OLRB) – Union and employer
negotiated a collective provision that privileged ability over
seniority. Then, in a job competition where the junior
candidate was clearly more able, the union told him it
wouldn’t let him enforce the clause as written – that
seniority was sacrosanct. The union brought a grievance
for the senior employee, and got her the job.
• DFR claim was then brought by the junior employee, on
the basis of arbitrariness (no HR violation was alleged).
• The OLRB (correctly, in my view) held the union’s
disregard of the clear wording of the agreement to be a
breach of the DFR.
Multiple forums after Figliola
• In Figliola, Abella J focuses on the public interest in avoiding relitigation.
Letting individual employees have direct access to arbitration would in
my view be an effective way of doing just that. RElitigation is a bad thing,
but an employee should have one shot at “litigation”.
• Paterno 2011 HRTO 2298: the applicant had asked the grievance
arbitrator to decide only his complaint that the employer had no cause for
discipline, and not to decide his complaint of sex and disability
discrimination under HR Code. However, at the employer’s insistence,
the arbitrator decided both complaints, and rejected the discrimination
complaint.
• Applicant then went to HRTO. Assoc. Chair Wright said (para 3): “The
applicant’s submissions amount to the suggestion that the applicant has
an absolute right to litigate the lawfulness of a discharge in two different
proceedings, even though an arbitrator has full jurisdiction to apply the
Code and award Code remedies. I do not agree.”
• That makes sense. Since Parry Sound, arbitrators clearly apply HR
statutes as of right - so if an arbitrator has dismissed a grievance an a
HR claim, it should be dead. But an applicant ought to have an “absolute
right” to litigate a grievance in one proceeding.
The individual “has a choice...”
• The HRTO will dismiss a complaint if the allegation of
prohibited-ground discrimination set out in the complaint has
been dealt with in arbitration (Melville 2012 HRTO 22).
• Or in a DFR proceeding (Dunn 2008 HRTO 149, Cunningham
2011 HRTO 658).
• In Melville, at para 8, Assoc. Chair Wright says: “an individual
working under a collective agreement has a choice – he or she
can choose not to file or proceed with a grievance and to
pursue the application at the Tribunal instead.”
• But in addition to alleging discrimination on HR-prohibited
grounds, many grievances also allege discrimination on other
grounds (such as simple favoritism) , as well as other nondiscriminatory violations of the collective agreement.
The individual “has a choice...” (cont’d)
• If the union refuses to press such a grievance (or if the
employee perceives that the union is in a conflict of interest),
the employee’s only “choice” is to go to the OHRT. But the
OHRT will (quite properly) look only at the HR issues. If the
non-HR complaints are strong but the HR complaints are weak,
the OHRT option is by no means a viable “choice” for the
employee.
• I suppose the employee could then go to the OLRB with a DFR
complaint about how the union handled the non-HR issues. If
the complaint was upheld, the OLRB could send the matter to
arbitration.
• But wouldn’t it be simpler all around to let the employee take
the matter to arbitration himself or herself?
• There would indeed be significant process questions about how such
a matter should be arbitrated, and what safeguards there should be
against abuse. I can’t go into those questions here, but there are
many possible ways of dealing with them.