Is the Duty of Fair Representation Too Weak?

Most claims by union members fail

by Gordon Sova (gordon.sova@thomsonreuters.com)

In a recent opinion piece in the National Post, Canadian LabourWatch Assn. president John Mortimer makes the statement that the “current ‘duty of fair representation’ provisions in labour codes are at best a joke. Labour boards have rendered a union’s duty to be so low that worker claims against unions are almost always dismissed.”

His point is that union members are ill-served by leaders who don’t pursue their grievances.

The duty of fair representation enshrined in the Codes means that the actions of a union cannot be arbitrary, discriminatory or in bad faith.

I agree with Mortimer that most allegations of unfair representation are dismissed. But the reason, I would suggest, is not because the law is weak but because the members are looking for a desired outcome when the law promises them only a fair process.

The typical complaint is made because the union has not gotten someone’s job back or secured overtime pay or reversed a promotion. The claim of unfair representation is made to comply with the letter of the law, but it is not the real substance of the complaint.

Time and again, labour boards stress that the union is responsible only for the way in which it proceeds and cannot be expected to guarantee the outcome. On the occasions when a local has been partial or casual or negligent, the board will say so and rule accordingly. But it is not a violation of the duty of fair representation to refuse to take an unwinnable grievance to arbitration. Nor is it a requirement to act against the interests of the whole of the bargaining unit to satisfy one person.

But, for sake of argument, there are two ways we might go in strengthening the duty of fair representation. One would be to raise the standard.

Directors of corporations work under the fiduciary duty (honestly and in good faith, with a view to the best interests of the corporation) and the duty of care (care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances). Their standard looks, on the surface at least, similar in many ways to the conduct required of union officials.

Both duties concern process again, not outcome. Shareholders cannot sue just because the company makes a smaller profit, or even because it fails. It is hard so see why union leaders should be held to a higher standard than others in positions of similar responsibility are.

The only other way that the duty of fair representation could be made more stringent is if the critics got their way and it was a standard based on outcomes and not process. But most of the outcomes demanded are ones that are not within the power of the union. The very most that could be required would be that the union did its utmost to pursue a grievance. No longer could one be abandoned as futile or settled for less than the grievor demanded.

Every grievance would have to be taken to arbitration, with the consequent waste of money and time by the union and the employer.

By a show of hands, who is in support of that?