Unions careful when it comes to duty of fair representation

By Tony Poland, LegalMatters Staff • A union’s responsibility is to protect the collective interests of all members – not necessarily just an individual’s rights – which is one reason a bid to force one union to file a grievance on behalf of a group of workers opposed to the federal government’s vaccine mandate failed, says Toronto employment lawyer Jeffrey M. Andrew.

In a recent ruling, the Canada Industrial Relations Board (CIRB) found the Canadian Union of Public Employees – Air Canada Component (CUPE ACC) was not obliged to grieve Air Canada’s decision to enforce the government order.

After the Liberal government announced a COVID-19 vaccination mandate for all employees of federally regulated industries – which includes airlines – Air Canada introduced a policy requiring all employees to get the necessary inoculations by Oct. 31, 2021.

Following concerns from union members, CUPE ACC obtained two separate legal opinions on Air Canada’s policy and determined it “would likely withstand a challenge through grievance arbitration” and that a challenge under the Canadian Charter of Rights and Freedoms was also unlikely to succeed.

Complaint made to the CIRB

A union member who was unhappy with the union’s determination complained to the CIRB, claiming the union was not fulfilling its duty to fairly represent her and other like-minded workers.

However, the board disagreed, stating it was “not persuaded that the union’s approach and its decision not to pursue a policy grievance challenging the employer’s COVID-19 vaccination policy was arbitrary, discriminatory or made in bad faith.”

Andrew, a partner with Cavalluzzo LLP, says the union’s decision not to grieve the vaccine mandate as a whole but instead support members through individual grievances, where warranted, was a logical compromise.

“It was a pretty straightforward case and the result was not in the least surprising,” he tells LegalMattersCanada.ca. “Frankly, I don’t believe the employer had much choice here. They were legally required to impose the mandate. As for the union, they took a balanced approach in quite sensibly deciding not to challenge the mandate. 

“Assessing how the policy is applied to individual members on a case-by-case basis is completely reasonable,” adds Andrew, who was not involved in the case.

He commented generally, “My guess is there wouldn’t be many people who would have a legitimate exemption, such as for medical or religious reasons. If they did and the employer made an unreasonable decision, that would be something the union would consider.”

He says it is not uncommon for union members to have “their own particular views about their rights.”

‘It is not your individual agent to be ordered around’

“We deal with this from time to time and in multiple settings. The union is your bargaining agent, collectively,” Andrew explains. “It is the bargaining agent for all the people covered by the collective agreement. It is not your individual agent to be ordered around by a member just because they have a particular individual opinion.

“Some people don’t really understand that. The union is the exclusive bargaining agent of employees with their employer,” he adds. “The union usually gets to decide whether to pursue grievances. It represents many people and must balance many different considerations in doing so.”

He said unions, in administering collective agreement rights, are bound “by a duty of fair representation, which mean making decisions free from acts of bad faith, discrimination or arbitrariness.”

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“Bad faith would be if the union is lying to you or conducting itself in a fraudulent manner or is making decisions because it doesn’t like you personally,” says Andrew. “Few cases arise or are won on that basis because most unions are pretty sophisticated. Unions are generally professional and do their jobs in good faith in my experience.”

He says discrimination could mean a human rights violation or it could involve making an unreasonable distinction between members.

Making decisions without giving reasonable attention to the members’ interests and conducting a reasonable inquiry into the matter would be considered acting arbitrarily, says Andrew.

Unions unlikely to take cases with little chance for success

He says unions are unlikely to take a case that has little or no chance for success, where it is going to be damaging to the bargaining unit “or because someone threatens them if they don’t take it forward.”

“It should also be noted that labour boards are very mindful that grievances do not come without expense. It is not just one member’s money, it is the collective money of all those in the union. Unions are entitled to weigh the cost, the chance of success and the strength of the case before proceeding,” Andrew says.

He says it is not uncommon for members to threaten a labour board complaint if their union refuses to respond to their issue.

“I do see cases where an individual does not have a particularly good case and the union looks at it very carefully but decides not to proceed or suggests alternatives,” says Andrew. “This may not be satisfactory to the member and they take it to the labour board. They lose, of course, because there is simply no case or breach of the duty of fair representation.”

He says the majority of duty of fair representation cases fail and one reason is that union reps “are not really happy about being accused of having failed in that duty.”

‘Go out of their way to communicate with their members’

 “They actually go out of their way to communicate with their members, explain what they are doing, and listen to what members say. They investigate and get legal advice,” says Andrew. “They are pretty careful when it comes to this issue.”

In the Air Canada case, he says the union explored all its options before making its decision and offered a compromise.

“To be clear, when the CIRB is adjudicating on a case, the adjudicators don’t consider whether the union made the decision that they believe is the correct one,” Andrew says. “They look to see if the union conducted a fair inquiry and make a reasonable assessment?

“In this case, the union sought two legal opinions. That is the mark of a reasonable investigation.”

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