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  5. Duty Of Fair Representation
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  5. Duty Of Fair Representation
AWOC Conference June 3-5, 2016

Our Unifor Constitution and the principles of our union demand that all union representatives represent the members fairly and equitably in all matters.

When dealing with grievances, a union is also required by law to represent all workers covered by the collective agreement in a bargaining unit (even those who are not signed-up union members). The law usually says such representation must be carried out in a manner that is not “arbitrary”, or “discriminatory” or “in bad faith.”

This does not mean that the union must take all grievances through to arbitration. It does mean, however, that because a settlement or a withdrawal of a grievance affects the rights of an individual worker, the union must have treated that worker’s grievance fairly and objectively.

A union is entitled to make decisions that may disappoint some members in the bargaining unit, as long as the union honestly considers the facts and balances the interests of the grievor with the best interests of all the workers taken together.

Collective agreements always require the parties to the agreement to meet and try to settle grievances short of arbitration. The grievance procedure should be used, as well, to discover the employer’s case and version of events relevant to the grievance. A union is not forced to process a grievance or to refer it to arbitration simply because an employee “wants his or her day in court.”

The union may consider many factors, including the merits of the grievance, the real chances of success, as well as the interests of the bargaining unit as a whole.

If the committee decides to withdraw a grievance, you must notify the grievor in writing – by registered letter if necessary – before the grievance is withdrawn. Inform the grievor of her/his right to appeal and explain the Unifor appeal procedure to follow under our union’s constitution. Listen to what the grievor has to say about the facts you have; ask for any new information on those facts; and then make up your mind.

If the grievor decides to appeal your decision to the membership or to the national union, you must apply to management, in writing, for an extension of the time limits on the grievance. This is to protect the grievor’s rights while the appeal is being dealt with. If the appeal is upheld, the grievance can thus be reinstated into the grievance procedure.

Since the law usually says the duty of fair representation is about not acting in a way which is “arbitrary,”or“discriminatory”or“in bad faith,” it would be useful to define these terms.

What is arbitrary?

  • Treatment that is abrupt, inconsiderate, indifferent or insensitive.
  • Failure to investigate.
  • Superficial, off-handed investigation.
  • Failure to notify grievor of union appeal procedure.
  • Reckless disregard for the interests of the grievor.

What is discriminatory?

  • Treating members of the bargaining unit differently without a good reason.
  • Lack of prejudice or bias not necessarily a defence for lack of representation.
  • Different treatment based on union membership or on grounds prohibited by human rights codes (race, gender, etc.).
  • Departure from usual procedure without a valid reason.

What is bad faith?

  • Hostile or malicious frame of mind.
  • Evidence of bad faith is based on history of personal hostility, desire for revenge, lack of fairness or impartiality, intentional deception, flagrant dishonesty or ulterior motive.
  • Having a “hidden agenda” towards the grievor.

Fair representation guidelines

  • In all grievances involving discipline or discharge, you must speak to the grievor to get his or her side of the story. You should tell the grievor what the employer’s case is and obtain the grievor’s reaction to it.
  • As soon as possible, get the grievor’s story in full from the grievor directly. After you have taken notes on the grievor’s story, have the grievor sign them. Always make written notes. Base the decision on facts. Do not make a decision on the basis of hearsay or rumour.
  • Consult other committeepersons or Unifor staff if in doubt. Most every unit in Unifor has a National Representative assigned directly to them by the National Union.
  • Investigate thoroughly. Collect relevant documents. Interview others. Ask for written statements or take thorough notes.
  • Have the grievor at the meeting with management to discuss the case. If the grievor is excluded, have good and sound reasons. Handle every grievance in the same thorough and professional way. If you depart from your usual practice, have valid reasons.
  • If the grievance has merit, make an attempt to resolve it. Discuss any reasonable offer with the grievor.
  • If the employer denies the grievance, weigh the interests of the bargaining unit with those of the grievor.
  • The more serious the consequences to the grievor, the more energetic the committee’s efforts should be. A suspension or discharge (firing) must be handled with the utmost of care.
  • Do not be influenced by bias or hostility to the grievor.
  • Because legislation in some provinces, but not all jurisdictions, may allow an arbitrator to set aside time limits where there is cause, missed time limits alone may not be a good enough reason to drop a serious grievance. If time limits were missed, document the circumstances. File if the grievance is serious and has merit. In any event, others will decide whether time limits can be set aside. So, when in doubt, file the grievance! But always follow and observe the time limits in the collective agreement.

Fair representation checklist

  • Did you thoroughly investigate and document, in writing, the worker’s grievance?
  • Did you get the grievor’s side of the story?
  • Did you attempt to settle the grievance?
  • Did you consult and keep the grievor informed?
  • If in doubt, did you seek the advice of union staff?
  • Did the grievor answer your questions truthfully and co-operate fully?
  • Did you speak to available witnesses?
  • Did you show any bias or hostility toward the grievor?
  • Did you carefully weigh the seriousness of the issue?
  • Did you weigh the interests of the bargaining unit?
  • Did you weigh the effect of going to arbitration?
  • Was the internal union appeal procedure made known to the grievor?

On probationary employees

Do not turn down a grievance solely on the grounds that the worker is on probation. As part of the bargaining unit, probationers have the same right to be represented by the union as any other workers. Moreover, probation is with the employer, not the union. Probationary workers normally become members of the union before they complete probation.

Most collective agreements do not provide “just cause” protection when it comes to the question of the firing of a probationary worker; however, several arbitration decisions tell us that management cannot fire probationers for reasons that are blatantly discriminatory, arbitrary or in bad faith or against the human rights code.

If a probationer wants to grieve her/his dismissal, you might have grounds to fight, but you will not know until you do an investigation, document the facts and consult about the facts with others in your committee, and your National Representative.

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