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Where Are We Now? Unions’ Post-Weber Representational
Responsibilities For Human Rights in the Workplace
Claire Mummé, University of Windsor Faculty of Law
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Plan of Presentation

Introduction

This presentation suggests a research agenda for assessing the
extent to which expanded jurisdiction over human rights issues
since Weber has affected the way unions’ represent their
members.

Has the DFR case law changed since/in function of Weber?

Claims against unions at the HRTs.

Res judicata/s.45.1 as between DFR and human rights claims.

Some empirical questions in need of further research.

Concluding thoughts.
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Introduction
In the early years, analysis of the Weber decision invariably
raised questions about the practical strain exclusive arbitral
jurisdiction would place on unions and labour arbitrators.
Amongst concerns raised was the degree to which Weber
expanded unions’ representational responsibilities for
members’ human rights issues and discrimination in the
workplace.
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Introduction
Bernie Adell voiced this concern forcefully:

“The increasingly frequent links between anti-discrimination
rights, which are vested in individuals, and the collective
agreement administration process, which privileges collective
rights, threaten to put very heavy pressure on the DFR both in
theory and in practice. Those pressures are further aggravated
by the various lines of jurisprudence stemming from Weber v.
Ontario Hydro. [T]hat jurisprudence is giving unions and the
grievance arbitration process an as yet ill-defined range of new
responsibilities for enforcing employee rights (and duties)
previously enforced in other forums […].”
Bernard Adell, “Jurisdictional Overlap Between Arbitration and Other Forums”,
(2000) 8 Canadian Lab. & Emp. L.J. 179 at p.224
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Introduction
There is an anecdotal sense that Weber has had a significant
impact on unions’ human rights responsibilities, but it is
difficult to assess the nature and extent of that impact.
There are two types of questions provoked by this topic.

1. Whether unions now hold greater representational
responsibilities regarding their members’ human rights issues.
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
Analysis of DFR and human rights claims against unions for
discrimination.
 My focus here is on unions’ representational obligations rather than
issues surrounding discriminatory terms of CBAs.
2. How are unions navigating their options as regards
proceeding to arbitration or to the human rights tribunals.

Further empirical research suggested to complement the findings
other presenters, notably those of Sara Slinn and Brian Etherington.
*Not addressing the negotiation of CBA terms with discriminatory
impact
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Has the DFR Standard Changed?
One of the big questions raised after Weber was whether the
union veto over access to arbitration would heighten the DFR
standard when members’ asserted a human rights issue.
This does not appear to have occurred. For the most part, the
current DFR standard appears to be effectively the same as
in the pre-Weber era.
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The Pre-Weber DFR Standard
Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509

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.

The 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 of the consequence
for the employee on the one hand and the legitimate interest 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.
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The Post-Weber DFR Standard
Noël v. Société d’énergie de la Baie James, [2001] 2 S.C.R. 207, 2001
SCC 39, paras 49-53

First, s. 47.2 [of the QC Labour Code] prohibits acting in bad faith,
which presumes intent to harm or malicious, fraudulent, spiteful or
hostile conduct In practice, this element alone would be difficult to
prove.

The law also prohibits discriminatory conduct. This includes any
attempt to put an individual or group at a disadvantage where this is not
justified by the labour relations situation in the company.

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. […].

The fourth element in [the Quebec Labour Code] is serious
negligence. A gross error in processing a grievance may be regarded
as serious negligence despite the absence of intent to harm. However,
mere incompetence in processing the case will not breach the duty of
representation, since s. 47.2 does not impose perfection as the standard
in defining the duty of diligence assumed by the union
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The Post-Weber DFR Standard
In 2000-2001 Bernie Adell in the Labour Arb YB suggested that
there appeared to be an emerging duty to be proactive in
assisting employees secure accommodation.
“[T]he past few years have seen a subtle but significant rise in
the standard of representation that unions must meet in order to
comply with the DFR, especially in discrimination grievances.”
- Bernard Adell, “The Union’s Duty of Fair Representation in Discrimination
Cases: The New Obligation to
Arb YB 263 at p.266
be Proactive”, (2001-2002) 2 Labour

He also noted, however, that this duty to be proactive was not yet
fully established/accepted.

In Bingley v. Teamsters, Local 91[2004] C.I.R.B. No. 29, the CIRB
built on Adell’s suggestion, elaborating a duty to be proactive
when dealing with disability and accommodation.
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The Post-Weber DFR Standard: the
Bingley cases
Bingley v. Teamsters, Local 91[2004] C.I.R.B. No. 291.
After discussing the two Renaud scenarios for union liability for
discrimination, the Board held that Renaud suggested that “the
union’s responsibility may also be engaged when it does
not address the discrimination even though it did not cause
or take part in the discriminatory work policy.” para 59
After discussing Parry Sound, the Board stated that “[…] a
union may be held responsible of the discriminatory
effects of an employment policy decision by not seeking to
put an end to the discrimination.” para 61
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The Post-Weber DFR Standard: the
Bingley cases
Bingley cont’d
The Board then turned to the DFR
“Due to the sensitive and important issues associated with the
accommodation of disabled workers in the workplace, labour boards also
look to see whether unions have given disabled employees’
grievances greater scrutiny. The cases generally concur that the usual
procedure applied to other members of the bargaining unit may be
insufficient in representing a grievor with a disability, mainly because the
member’s situation will require a different approach.” para 64.
“ Overall […] when a member has some kind of disability, the union must
not only handle the grievance in an “ordinary” manner, but has to put
some extra effort into the case. Thus, the union cannot handle the case
like any other grievance; it must be proactive and more attentive in
its approach.”
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The Post-Weber DFR Standard: the
Bingley cases
Bingley supra cont’d
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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.”
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The Post-Weber DFR Standard: the
Bingley cases
Schwartzman v. M.G.E.U., [2010] M.L.B.D. No. 49
Board approved of Bingley and discussed unions’ obligations in
dealing with issues of disability and accommodation. However,
the Board ultimately concluded that the union met their
obligations on the facts.
Drawing from Gendron, the Board noted that accommodation
issues are critical interests deserving particular attention by
unions.
“In the circumstance of a disabled employee alleging a
violation of statutory anti-discrimination rights, the
employment interests are serious and any associated
grievance may have enormous consequences for the
employee.”
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The Post-Weber DFR Standard: the
Bingley cases
Schwartzman cont’d
“ Unions must be particularly alert and sensitive to an
employee’s disability and the employment interests at
stake in cases concerning the application of human rights
principles.
+ The Post-Weber DFR Standard: the
Bingley cases
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Ultimately, however, I’ve located only one case applying
Bingley to find a violation of the DFR. - Pepper v Teamsters
Local 879, 2009 CIRB 453.
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The idea that a human rights issue is a critical interest
remains largely undeveloped.
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The cases which suggest a higher standard of representation
all concern disability. I have not seen any discussion of a
higher standard in regards to any other prohibited ground of
discrimination.
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Generally, the DFR case law does not seem to have changed
significantly in function Weber as regards members’ human
rights issues.
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Claims Against Unions Before
Human Rights Tribunals
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With the growing recognition of concurrent jurisdiction over
human rights claims, there appears to be an increasing
number of claims for discrimination made against unions
before human rights tribunals.
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In Ontario this seems particularly so since the
implementation of the direct access model (see empirical
questions slides 25-26)
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The labour boards and the human rights tribunals recognize
concurrent jurisdiction between them over claims that a
union acted in a discriminatory fashion against a member.
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Claims Against Unions Before
Human Rights Tribunals
In Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760,
the HRTO discussed the ways in which a union could violate the
Human Rights Code.
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The Tribunal noted that a union could “discriminate in
employment” (s.5 of the OHRC) only in the two situations
noted by the SCC in Central Okanagan School District No. 23 v.
Renaud, [1992] 2 S.C.R. 970 ("Renaud")
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1 – Where the union participates in the formulation of the work
rule that has the discriminatory effect on the complainant – codiscrimination;
2 - Where the union impedes the reasonable efforts of an
employer to accommodate (contributory discrimination – E.
Shilton)
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Claims Against Unions Before
Human Rights Tribunals
The Tribunal in Gungor supra went on to hold that where the
impugned union conduct was inaction, the claim would fall under
s.6, membership.
Relying on Traversy v. Mississauga Professional Firefighters
Association, Local 1212, 2009 HRTO 996 , the Tribunal was clear
however that a union’s failure to act does not in of itself constitute
discrimination.
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The Tribunal cited the following passage from Traversy supra:
“[A] claim that the union violates the Code must be based on an
assertion of differential treatment, and not simply a failure to act.
The failure or refusal to take forward a human rights issue such
as accommodation of a disability in the workplace is not, in and
of itself, a breach of the Code. There must be a claim, and a
factual foundation for the claim, that the failure to act was based
on discriminatory factors.” Traversy supra at para 33.
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Claims Against Unions Before
Human Rights Tribunals
Moreover, the Tribunal in Gungor noted, its jurisdiction
regarding union inaction is limited.
“This kind of conduct [union inaction] may or may not provide a
basis for a duty of fair representation complaint against the union
under s. 74 of the Labour Relations Act. But it is not this Tribunal's
jurisdiction to determine whether a union fairly or adequately
represented a member in the absence of evidence that its
conduct was based on a discriminatory factor. That is the role and
jurisdiction of the Ontario Labour Relations Board.” Gungor, supra,
para 47.
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Claims Against Unions Before
Human Rights Tribunals
Gungor Cont’d
The Tribunal was urged to adopt the holding in Bingley, although a
DFR case. The Tribunal declined to do so.
The Vice-Chair argued that the LRBs and HRTs have different roles
as regards discrimination.
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The LRBs, he argued, have “direct and immediate jurisdiction”
to assess and rule on the adequacy of a union’s representation,
including human rights issues.
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By contrast, the HRTs are capable of dealing with the underlying
human rights issue that is the subject of the applicant’s concerns
about any lack of union representation.
Moreover, the Vice-Chair argued, the CIRB got Renaud wrong in
Bingley.
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Claims Against Unions Before
Human Rights Tribunals
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But, there’s something slightly strange in the HRTO’s
jurisprudence regarding discrimination in union
representation.
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Claims Against Unions Before
Human Rights Tribunals
The HRTO usually analyzes discrimination in union
membership based on Traversy, supra. The following passage is
cited in almost all HRTO claims under s.6 against unions.
“A claim that the union violates the Code must be based on
an assertion of differential treatment, and not simply a
failure to act. The failure or refusal to take forward a human
rights issue such as accommodation of a disability in the
workplace is not, in and of itself, a breach of the Code. There
must be a claim, and a factual foundation for the claim, that
the failure to act was based on discriminatory factors.”
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Claims Against Unions Before
Human Rights Tribunals
In numerous cases the Tribunal emphasizes that the decision not to
act must be based on discriminatory factors.
In Baylet v. Universal Workers Union, 2009 HRTO 700 paras 17-19
“To found a claim against the Union, the applicant must provide a
factual basis that could give rise to a finding that it discriminated
against him. For example, the applicant could allege that the
Union interfered with the accommodation process or made its
decision not to represent the applicant because of
discriminatory factors. Both of these assertions would require a
factual underpinning.” (emphasis added)
“One can not presume that a union's failure to act was based on
discriminatory beliefs. There may be many reasons why a union
might choose not to pursue a human rights claim on behalf of an
employee that have no discriminatory overtones.”
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Claims Against Unions Before
Human Rights Tribunals
In Gungor the Tribunal states that “[t]he issue for union liability
under s.6 (membership) is whether there is a discriminatory
basis or factor involved in a union’s conduct in relation to its
representation of a union member” Gungor para 58
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Claims Against Unions Before
Human Rights Tribunals
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
Sometimes a slightly broader formulation is used.
In Choa v. CUPE, 2013 HRTO 199 the Tribunal stated:
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“The Tribunal does not have the power to deal with general
allegations of unfair treatment by unions or employee
associations. For example, the Tribunal has found that it is not
discrimination for a union or an employee association to decide
not to pursue a grievance, or address a member's issues, unless
its decision is linked, in whole or in part, to a prohibited
ground of discrimination under the Code”. The Tribunal then
went on to quote from Traversy.
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Claims Against Unions Before
Human Rights Tribunals
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Do these formulations leave room for indirect discrimination
scenarios?
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Does this leave out scenarios where a union’s decision
not to pursue a grievance (or otherwise not to act) has a
differential impact based on a prohibited ground, but the
decision itself is not premised on the prohibited ground?
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The Traversy formulation suggests that differential treatment
is the issue, and that it only runs afoul of the HRC only if the
decision is not to act is based on a prohibited ground.
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Is this limitation intentional, given that every decision not to
act could constitute differential treatment?
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Jurisdiction as Between LRBs and
HRTs
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The human rights tribunals’ analysis hints at the their
preference that issues relating to union discrimination to be
dealt with by the LRBs. (see Traversy, supra; Arias v. Centre for Spanish
Speaking Peoples, 2009 HRTO 1025; Baylet v. Universal Workers Union, 2009
HRTO 700, Gungor supra.)

The HRTO considers DFR proceedings before the OLRB to be
“another proceedings” for the purposes of s.45.1 of the
Code, and may thus defer or dismiss applications which were
“appropriately dealt with” by the OLRB.
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The HRTO also considers settlements of DFR claims to
constitute “another proceeding” for the purposes of s.45.1. –
Dunn v Sault Ste Marie (City), 2008 HRTO 149.
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Jurisdiction as Between LRBs and
HRTs
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The LRBs also understand themselves to have concurrent
jurisdiction with the HRTs.
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The LRBs jurisprudence appears to be a bit more exacting than
before the HRTO as regards discriminatory conduct by unions.
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The LRBs do generally require some sort of justification for
inaction, which so far the HRTO does not appear to.
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Have Unions Representational
Obligations Changed Post-Weber?
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The DFR doesn’t appear to have changed significantly since
Weber.
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The HRTs would prefer that the LRBs deal with questions about
unions’ discrimination, but it’s not clear that the LRBs want to do
so.
The early consequence of Weber regarding human rights was the
proliferation of jurisdictional disputes in multiple fora.

Concurrency, even as controlled by the Figliola/Penner
principles, does not appear to have reduced the issue of
multiple claims, at least as regards the quality of unions’
representation.
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Everyone seems to be defending themselves everywhere, even
if just briefly to get a res judicata dismissal.
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Further Empirical Research is
Needed
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Are there more DFR claims now than prior to Weber?
+ BC LRB Annual Reports
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From the BCLRB Annual Report 2008
Graph from 2008 report
2008-2010 – approx 100 DFR cases a year.
2011 – 2012 – approx 60 DFR cases
2013 – 54 DFR cases
2014 – 70 DFR cases
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Further Empirical Research is
Needed
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How often is a DFR claim accompanied by a human rights
claim to the HRTs?
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Have unions changed the way they decide whether to bring a
grievance when a human rights issue is at stake?
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Do they consider different factors than as regards other types of
grievances?
Have the factors changed since Weber?
Has there been an increase in CBA provisions and/or union
policies requiring the grievance of all dismissals?
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If so, are such terms/policies implemented so as to protect unions
from DFRs relating to human rights issues, or just as ‘critical
interests’ protection?
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Further Empirical Research is
Needed

Occasionally the case law suggests that a union is bringing a
claim to the HR Tribunal on behalf of a member. When would this
occur instead of going to arbitration?
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More frequently the facts of a case suggest that the union is
operating in the background. What role are they taking here?
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Unions sometimes also intervene in human rights claims by
employees against their ERs.
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Unions sometime try and split their claims before before
arbitration and human rights tribunals
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When does this occur? How often does this occur?
What has been the success of this approach? E. Shilton, Choice but No
Choice, suggests this is generally a fruitless endeavour.
Is there a difference in the number of claims brought against
unions to the HRTs in direct access model provinces?
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Further Empirical Research is
Needed
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How are unions dealing with their representational
responsibilities where the alleged discrimination arises
between union members?
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What processes are in place, if any, to ensure that both members
receive appropriate union support?
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Are there more of such claims since Weber?
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This issue is largely invisible in the case law, but is one worthy of
discussion.
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Further Empirical Research is
Needed
The value of the union veto:

Part of the original rationale for the union veto was to allow
unions to make choices for the benefit of the collective, and
to give employers confidence in the finality of decisionmaking at arbitration.

Given the realities of concurrency, and of multiple
proceedings, does the veto still really lead to finality in
decision-making? What effect has concurrent jurisdiction
had on union-management relations?

If finality is attenuated, has the value of the union veto
become largely illusory?
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Some Concluding Thoughts
Generally, the facts of most of the DFR and human rights cases
against unions seem unmeritorious, but there are situations
where the EE does have a significant human rights issue that a
union has ignored.

How to craft a jurisprudential standard to catch the real
issues when they arise, while reducing the load created by
the rest?
Whether or not the claims are meritorious, and even as
controlled by the Figliola/Penner principles, everyone seems to
be defending themselves everywhere.
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Some Concluding Thoughts

Subject to the empirical research just proposed, if the union
veto does not actually create finality, what is its purpose?
If finality is illusory, and there is such difficulty in getting
the jurisprudential balance right between meritorious and
unmeritorious DFR/HR claims, perhaps Bernie’s early
suggestion now makes a lot of sense:

Where a union refuses to advance a grievance regarding
human rights, let members bring the grievance and pay for it
themselves.

This will relieve the pressure of DFR claims and part of the
concurrency issues.