Reasons for decision

Virginia McRaeJackson; Jacoline Shepard,
complainants,
and
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),
respondent,
and
Air Canada Jazz (Air Canada Regional Inc.),
employer.

Board file: 23726-C

Edwin F. Snow,
complainant,
and
Seafarers’ International Union of Canada,
respondent,
and
Seabase Limited,
employer.

Board File: 24142-C

CITED AS: Virginia McRaeJackson et al.

Decision no. 290
October 12, 2004

Complaints filed pursuant to section 97(1) of the Canada Labour Code, Part I.

Duty of fair representation – Section 37 – Relevant principles -Burden of proof – Timeliness – Duties – Remedies – The Board has considered two files in this decision – The Board sets out a very comprehensive review of the Board’s jurisprudence regarding the duty of fair representation complaints filed pursuant to section 37 of the Code – The decision clarifies the duty of fair representation, the duties and responsibilities of the complainants and unions under the Code, the role of the employer in section 37 complaints, the violations arising out of negotiations between the union and the employer, the role of the Board in considering complaints of breach of the duty of fair representation, the available remedies, as well as the issue of the right to a hearing – The facts of each case determine whether or not the union’s conduct has fallen below the standard found acceptable to the Board – The union’s representation of employees involves rights under the collective agreement, and as a consequence, considerable latitude is given to the union in determining how those rights are to be applied – As these cases illustrate, to the extent that the union has investigated a grievance or potential grievance, put its mind to its merits in light of all the circumstances and made a reasoned judgment about its possible outcome, there will be no cause for the Board to intervene.

Duty of fair representation – Security position – Lay-off – Bumping rights – Previous collective agreement – Grievance – Union’s discretion – Group of employees – In the first file, the complainants were laid off and as a consequence they claimed bumping rights into Customer Service Agents positions – The new collective agreement does not provide for bumping rights between divisions – The union told them that under the new collective agreement, there was no basis for a grievance – The complainants allege that the union has discriminated against them – The Board states that it is not because the union takes a position that may be disfavourable to a group of employees that its conduct must be found to be discriminatory – Rights based on a previous collective agreement are unenforceable and a grievance based on these rights is doomed at the outset – The union’s decision to refuse to file a grievance was reasonable under the circumstances – The complaint is dismissed as being without merit.

Duty of fair representation – Burden of proof – Union’s conduct – Lay-off – In the second file, the complainant was laid off in accordance with the seniority provisions of the collective agreement and subsequently recalled for another assignment – He notified the union on the day of recall that he felt that the terms of a memorandum of settlement had been breached by the employer and asked the union to provide him with legal advice – The union filed a grievance on his behalf – The union then asked the complainant to provide it with evidence, however since he had not responded the union advised him that it was closing its file – The union then withdrew the grievance – The complainant has not established a prima facie case of union conduct that violates the Code – Not only did the complainant misunderstand the grounds for a section 37 complaint, but he also requested a remedy that does not flow from the alleged complaint – The complaint is dismissed as being without merit.

The panel of the Board was composed of Ms.Michele A. Pineau, Vice-Chairperson, sitting alone pursuant to section 14(3)(c) of the Canada Labour Code (Part I – Industrial Relations) (the Code).

I – Introduction

1 The Canada Industrial Relations Board (the Board) receives large numbers of complaints from employees alleging that their trade union has breached its duty of fair representation. Annually, these complaints represent close to fifty percent of unfair labour practice complaints received by the Board and monopolize a great deal of its resources without significantly advancing the objectives of Part I of the Code, which it is called upon to interpret and apply. Indeed, most of these complaints are dismissed on the basis that the facts do not establish sufficient grounds for a successful complaint.

2 The demands placed on the resources of trade unions, the Board and the labour relations system as a whole prompted the Board to review how to address these complaints while satisfying the principles of natural justice that govern all administrative tribunals and at the same time giving complainants the opportunity to have a complaint reviewed.

3 A general observation that stems from a review of the numerous complaints is that most complainants do not fully understand the basis of the duty of fair representation imposed by the Code.

4 Therefore, in order to provide guidance to all complainants, the Board decided to address misunderstandings concerning the extent of the duty of fair representation by trade unions in a decision that would serve as a reference to litigants and a basis for Board decisions in upholding or dismissing such complaints.

5 The principles that follow reflect the most important areas of the Board’s authority to decide section 37 complaints. Decisions cited in support of these principles are, for the most part, related to cases decided by the Board since the 1999 amendments to the Code and the appointment of the new Canada Industrial Relations Board and to important cases decided by the Supreme Court of Canada and the Federal Court of Appeal. Theses cases represent a comprehensive cross-section of established case law. For case law issued by the former Canada Labour Relations Board or other reported cases, reference may be made to two important compendiums of Board case law (Ronald M. Snyder, The 2003-2004 Annotated Canada Labour Code (Toronto: Thomson-Carswell, 2003) and Graham J. Clarke, Clarke’s Canada Industrial Relations Board, Vol. 2 (Aurora: Canada Law Book, 2004) as well as the Board’s published decisions.

II – The Duty of Fair Representation

6 The duty of fair representation exists as a counterpart to the union’s exclusive authority to deal with grievances under the collective agreement.

7 When the Board certifies a trade union, the union becomes the exclusive representative of a unit of employees in its relationship with the employer. Section 36(1)(a) states as follows:

36.(1) Where a trade union is certified as the bargaining agent for a bargaining unit,

(a) the trade union so certified has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit; …

8 This relationship involves the negotiation and signing of a collective agreement. All collective agreements negotiated under the Code must contain a provision for final settlement of disputes, also known as the grievance procedure (section 57 of the Code). Unions enforce the collective agreement by filing grievances that allege that the employer has violated the terms of the collective agreement. Unions have a great deal of discretion when they deal with grievances. They may settle or drop grievances or decide not to refer them to arbitration, even if the affected employee disagrees (see Fred Blacklock et al., [2001] CIRB no. 139).

9 The union’s authority to deal with grievances is counterbalanced by the duty provided under the Code to treat all members of a bargaining unit fairly. This is what is known as the duty of fair representation. This duty is described in the Code as follows:

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

10 The duty of fair representation is a fundamental part of Canadian labour relations legislations in every jurisdiction, except New Brunswick, and has been the subject of longstanding and consistent interpretation not only by labour boards but by the courts. The principles that govern the union’s duty have been enshrined in this quotation from the Supreme Court of Canada in Canadian Merchant Service Guild v. Guy Gagnon et al., [1984] 1.S.C.R. 509:

1. 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.

2. 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.

3. This 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 its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

5. 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.(page 527)

11 These criteria are applied in deciding whether a union properly exercised its discretion as to whether to refer an employee’s or former employee’s grievance to arbitration. In accordance with these criteria, the Board examines the union’s conduct as to how the union managed the employee’s grievance (see Vergel Bugay et al., [1999] CIRB no. 45; 57 CLRBR (2d) 182; and 2000 CLLC 220-034). This is not an appeal of the union’s decision not to refer a grievance to arbitration but an assessment of the union’s conduct as to how it handled a grievance (see John Presseault, [2001] CIRB no. 138; and Robert Adams, [2000] CIRB no. 95; and 73 CLRBR (2d) 132 upheld by Canadian Council of Railway Operating Unions v. Robert Adams et al., judgment rendered from the bench, no. A-719-00, February 13, 2002 (F.C.A.)). The Board rules on the union’s decision-making process and not the merits of grievances (see Gaétan Coulombe, [1999] CIRB no. 25).

12 Although the Board does not rule on the merits of an employee’s grievance, it may review the facts of a grievance in order to understand whether the union’s investigation reflected the worthiness and seriousness of an employee’s case (see Raynald Pinel, [1999] CIRB no. 19; and Robert Adams, supra).

III – Duties and Responsibilities of Complainants under the Code

13 In a complaint under section 37, the employee bears the onus (or burden of proof) of presenting evidence that is sufficient to raise a presumption that the union has failed to meet its duty of fair representation. The burden of proof is also described as the requirement to establish a prima facie case, or said differently, the requirement to bring forward sufficient relevant facts to establish a violation of the Code. The union is entitled to rebut the complainant’s allegations (see Terry Griffiths, [2002] CIRB no. 208; and 89 CLRBR (2d) 135).

14 If the Board finds that the union has breached the duty of fair representation, it can order a number of remedies that are outlined in section 99 of the Code. These remedies can include, for example, extending the timeliness of the grievance process and/or issuing a declaration that the union breached its duty and/or awarding damages. The leading case on the issue of remedies is Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 CanLII 220 (SCC), [1996] 1 S.C.R. 369, which was also discussed and applied in Via Rail Canada Inc. v. Cairns (2004), 2004 FCA 194 (CanLII), 241 D.L.R. (4th) 700 (F.C.A., no. A‑273-03); Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1256 (QL); Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1167 (QL); International Brotherhood of Locomotive Engineers v. Cairns, [2002] F.C.J. No. 585 (QL); International Brotherhood of Locomotive Engineers v. Cairns et al. (2000), 252 N.R. 160 (F.C.A.); and VIA Rail Canada Inc. v. Cairns et al. (2000), 2000 CanLII 16152 (FCA), 261 N.R. 24 (F.C.A.).

15 The union’s duty of fair representation is predicated on the requirement that employees take the necessary steps to protect their own interests. Employees must make the union aware of potential grievances and ask the union to act on their behalf within the time limits provided in the collective agreement. They must cooperate with their union throughout the grievance procedure, for example by providing the union with the information necessary to investigate a grievance, by attending any medical examinations or other assessments.

16 Employees must follow the union’s advice as to how to conduct themselves while the grievance process is underway. Employees must attempt to minimize their losses, for example by seeking new employment if they have been dismissed, or attending retraining if this will increase their chances of re-employment.

17 If an employee is neglectful in any of these regards, a claim before the Board will likely be unsuccessful (see Jacques Lecavalier (1983), 54 di 100 (CLRB no. 443)).

18 The Board will not usually uphold a complaint where the union obtained a reasonable settlement, which the complainant subsequently rejected (see Yvonne Misiura, [2000] CIRB no. 63; and 59 CLRBR (2d) 305). However, the settlement must take into consideration the employees’ legitimate rights under the collective agreement (see Clive Winston Henderson, [1999] CIRB no. 29; and 2000 CLLC 220-006).

19 In most collective agreements, employees do not have the absolute right to have their grievance referred to arbitration (see Garry Little, [2001] CIRB no. 114), even if this involves serious discipline or termination (see Yvonne Misiura, supra) or even forced resignation (see Tadele Lemi, [1999] CIRB no. 24). Again, the Board’s role is to look at the process as to how the union reached its decision (see Ghislaine Gagné, [1999] CIRB no. 18).

IV – Union’s Duties and Responsibilities under the Code

20 The Code gives a certified union exclusive authority over the negotiation and administration of the collective agreement because this is part of being an effective spokesperson in representing employees of the bargaining unit as a whole. The power of the union in its relationship with the employer is derived from the fact that it represents employees as a single entity and, as a consequence, is in a position to make commitments that can be relied upon by the employer. To receive benefits in return for such commitments requires that the union consider the overall employee group in addition to the needs of individual employees.

21 It is also essential that a union be able to direct its resources to achieve a maximum effect. In Judd and C.E.P., Local 2000 (2003), 91 CLRBR (2d) 33, the British Columbia Labour Relations Board expressed the following view, which this Board shares:

36. A union must also be able to direct its resources so that they achieve maximum effect. Union resources are limited. If, for example, an employee could insist that his or her dismissal grievance go to arbitration even where on a reasonable assessment there is no such case, this could waste tens of thousands of dollars of the union’s resources, which come from employees’ dues.

37. Through the control of its resources, a union can leverage them to achieve maximum results for minimum expenditure. An employer knows that the union could take any given case to arbitration if it wished. It also knows that the union is likely to accept a reasonable settlement if one is offered. With that type of relationship, the employer may be motivated to make reasonable offers to settle some matters by agreement, without litigating every issue. In that way, employees achieve the greatest gain with the least expenditure. By contrast, if individual employees could take every grievance to arbitration whenever they wished, the amount of litigation in the workplace would multiply and employees would very quickly find their collective resources depleted. This type of situation would be detrimental to the workplace and, for employees and the union, unaffordable. It may also place an excessive demand on the employer, affecting the business as a whole.

38. As well, a union must be in charge of making decisions given the reality that what is good for one employee in the bargaining unit may be bad for others. An obvious example is where there is a job vacancy and the collective agreement language is unclear. On one interpretation, one member of the bargaining unit should get the job; on another interpretation, a different member of the bargaining unit should get it. The union cannot represent both members by arguing both interpretations. It must be free to argue the interpretation it feels is in the best interests of the bargaining unit as a whole.

39. For these reasons, among others, unions must act as a single entity in order to represent the employees effectively. They must be able to make decisions even where individual employees in the bargaining unit may disagree. In fact, unions are able to exercise collective power because employees cannot simply do whatever they wish individually. It is that characteristic which gives unions their bargaining power on behalf of the employees.

40. Employees choose whether or not to unionize, and typically choose the leadership of their union local. Thus, unions are an exercise in workplace democracy. Like all democracies, they are not expected to be perfect, nor to be free from disagreement. In fact, when one considers the type of decisions unions must routinely make – e.g., whether to expend union resources on a particular employee’s grievance, or which position to take when some employees’ interests differ from others – it is inevitable that some employees will disagree. Employees as a group may nonetheless decide to continue with their union and its current leadership. If they do, it is not because the employees believe the union has been perfect or right in all cases. It is because they believe it is, overall, the best option available. (pages 43-45)

22 In making a decision of whether or not to proceed with a grievance or refer a grievance to arbitration, the union is in fact doing its job of representing employees. It is called upon to assess the workplace conditions that gave rise to an alleged breach of the collective agreement, the interpretation to be given to the collective agreement based on its experience with the employer, as well as the effect of a successful outcome of the grievance on other employees in the bargaining unit. To the extent that this assessment is based on relevant workplace considerations, the union is free to decide the best course of action in a particular set of circumstances.

23 The duty of fair representation commences as soon as there is a possibility discipline may be imposed and extends to the conduct of the grievance process to its final conclusion (see Anne Marie St. Jean, [1999] CIRB no. 33; and Brian L. Eamor (1996), 101 di 76; 39 CLRBR (2d) 14; and 96 CLLC 220‑039 (CLRB no. 1162), upheld by C.A.L.P.A. v. Eamor (1997), 39 CLRBR (2d) 52). The duty is identical whether a bargaining agent is voluntarily recognized or certified. However, it does not normally extend to a situation where there is no collective agreement (see Gerald M. Massicotte (1980), 40 di 11; [1980] 1 Can LRBR 427; and 80 CLLC 16,014 (CLRB no. 234), upheld by Teamsters Union Local 938 v. Massicotte, [1982] 1 F.C. 216, appeal dismissed by Pollock v. R., [1982] 1 F.C. 710).

24 Generally speaking, the duty of fair representation is owed only to members of the bargaining unit, although it may extend in certain circumstanes to former bargaining unit members (see Serge Bouchard et al., [2003] CIRB no. 259; and Tremblay v. Syndicat des employées et employés professionnels-les et de bureau, section locale 57, 2002 SCC 44 (CanLII), [2002] 2 S.C.R. 627). If an employee is not included in the bargaining unit, the union cannot be faulted for not taking the necessary steps to include the employee in the bargaining unit (see Esper Powell, [2000] CIRB no. 97).

25 The resolution of a grievance between the union and the employer, whether in the form of a settlement or incorporated in a consent award is subject to the Board’s ability to review the union’s conduct during the course of reaching that resolution (see Anne Marie St. Jean, supra).

26 There is no exhaustive list of items that a union must consider in deciding whether or not to take a grievance to arbitration. However, a few general principles apply.

27 A union must not act in bad faith; that is, with improper purpose. Three examples of this conduct include: the personal feelings of union officers influencing whether or not a grievance should be pursued; conspiring with the employer to have an employee disciplined or terminated; or, putting the ambitions of a group of employees who support a union official ahead of the interests of an individual employee.

28 A union must not discriminate on the basis of age, race, religion, sex or medical condition. Each member must receive individual treatment and only relevant and lawful matters must influence whether or not a grievance is referred to arbitration. It should be noted that not every instance of differential treatment is considered discrimination. For example, to refer one employee’s grievance to arbitration and not another where there are relevant considerations to support the distinction is not discriminatory. Nor is an agreement with the employer to give different or better working conditions to a group of employees because of workplace considerations (see Mario Soulière et al., [2002] CIRB no. 205; and 94 CLRBR (2d) 307).

29 A union must not act arbitrarily. Arbitrariness refers to actions of the union that have no objective or reasonable explanation, that put blind trust in the employer’s arguments or that fail to determine whether the issues raised by its members have a factual or legal basis (see John Presseault, supra, but see Orna Monica Sheobaran, [1999] CIRB no. 10, that upheld a complaint where the union referred an employee to the employer rather than assist the employee; and Clive Winston Henderson, supra, where the union’s decision jeopardized an employee’s seniority).

30 It is arbitrary to only superficially consider the facts or merits of a case. It is arbitrary to decide without concern for the employee’s legitimate interests. It is arbitrary not to investigate and discover the circumstances surrounding the grievance. Failure to make a reasonable assessment of the case may amount to arbitrary conduct by the union (see Nicholas Mikedis (1995), 98 di 72 (CLRB no. 1126), appeal to F.C.A. dismissed in Seafarers’ International Union of Canada v. Nicholas Mikedis et al., judgment rendered from the bench, no. A-461-95, January 11, 1996 (F.C.A.)). A non-caring attitude towards the employee’s interests may be considered arbitrary conduct (see Vergel Bugay et al., supra) as may be gross negligence and reckless disregard for the employee’s interests (see William Campbell, [1999] CIRB no. 8).

31 The union’s duty in this regard is open to greater scrutiny when a matter involves an employee’s termination, serious discipline that affects gainful employment or a disability that requires accommodation. On the other hand, not every grievance warrants an investigation. In some circumstances, the union may already be in possession of the relevant information. Where the evidence before the union is that a grievance is unlikely to succeed, it may be unreasonable in certain circumstances to expect the union to investigate new evidence brought forth by the employee (see International Longshore and Warehouse Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd., [2000] F.C.J. No. 1929 (QL) reversing Board’s decisions William Bill Harris, April 3, 2000 (CIRB LD 209); and William (Bill) Harris, [1999] CIRB no. 43; and 57 CLRBR (2d) 216, application for leave to appeal to the S.C.C. dismissed).

32 Union officials can make honest mistakes. Evidence that the union has acted negligently in the handling of a grievance or complaint does not necessarily amount to arbitrary conduct. A union may wrongly assess a grievance, yet not act arbitrarily. For example, a delay by the union in referring a dismissal grievance to arbitration may not be unusual where there is a backlog of grievances (see Ghislaine Gagné, supra). Not obtaining full redress sought by a complainant does not make a union’s conduct arbitrary, discriminatory or in bad faith (see Yvonne Misiura, supra).

33 A union can fulfill its duty to fairly represent an employee by taking a reasonable view of the grievance, considering all of the facts surrounding the grievance, investigating it, weighing the conflicting interest of the union and the employee and then making a thoughtful judgment about whether or not to pursue the grievance. That is called balancing the circumstances of the case against the decision to be made. For example, it is legitimate for the union to consider collective agreement language, industry or workplace practices, or how similar issues have been decided. It is also legitimate for the union to consider the credibility of a grievor, the existence of potential witnesses in support of the grievor’s version of the events, whether the discipline is reasonable, as well as the decisions of arbitrators in similar circumstances.

34 A union can consider legitimate factors other than the employee’s interests. For example, the union and the employer may have agreed to a particular interpretation of the collective agreement during the course of collective bargaining or the union may have been unsuccessful at arbitration in a similar case. The union may be concerned that a victory would have an adverse effect on other employees of the unit. The union may decide that the cost of resolving the grievance is too high given the issue at hand. The union must weigh these factors fairly against the wishes of the employee.

35 Conflicts may arise between the interest of an employee and the bargaining unit. For example, unions and employers may settle an ongoing grievance in exchange for bargaining concessions. In some circumstances, however, these actions may amount to unfair conduct if the grievance concerns serious discipline or dismissal (see Centre hospitalier Régina Ltée v. Labour Court, 1990 CanLII 111 (SCC), [1990] 1 S.C.R. 1330; and also Herman Durette, November 20, 2003 (CIRB LD 957)).

36 The rights that an employee wishes enforced may at times conflict with the rights of other bargaining unit members. This may occur in cases involving seniority rights on promotion or lay-off. This also happens in cases involving a reinstatement that triggers the displacement of another employee. In deciding whether or not to refer a particular grievance to arbitration, the union must act fairly. As long as it has properly considered the interests of both sides, the union need not represent each affected employee.

37 Accordingly, the Board will normally find that the union has fulfilled its duty of fair representation responsibility if: a) it investigated the grievance, obtained full details of the case, including the employee’s side of the story; b) it put its mind to the merits of the claim; c) it made a reasoned judgment about the outcome of the grievance; and d) it advised the employee of the reasons for its decision not to pursue the grievance or refer it to arbitration.

38 Established unions usually have their own experienced staff to conduct investigations, assess the grievance and decide whether or not to pursue a grievance. Although the union may decide to obtain the advice of legal counsel, there is no requirement for the union to obtain a legal opinion before deciding not to refer a grievance to arbitration. The Board will not uphold a complaint based on the mere fact that the union did not obtain legal advice before deciding not to refer a grievance to arbitration, or that the union did not follow counsel’s advice.

39 The general rule is that the union should advise employees of any upcoming hearing, or tell them why they should not or cannot attend (see Robert Adams, supra). Some unions proceed before the arbitrator on the basis of written submissions or according to an expedited procedure that excludes employee participation. Employees may have their own representative, but this is subject to the decision of the arbitrator. The union need not provide a representative for the employee, nor is it required to pay for any representative an employee chooses for himself.

40 The union has carriage of the grievance and does not need to consult with the employee at every stage of the grievance procedure, although it may be advisable to communicate with the employee if a grievance or arbitration hearing is delayed, in order to avoid a complaint under section 37 (see Ghislaine Gagné, supra). Lack of communication per se does not constitute a violation of the Code, except where it prejudices the complainant (see Crewdson (1992), 93 CLLC 16,014 (CLRB decision no. 977) (decision subsequently rescinded following parties’ agreement); William Campbell, supra; and Robert Adams, supra).

41 The collective agreement is not the only factor governing a union’s relationship with the employees it represents. Employees may have rights flowing from the union’s constitution, statutes or rules, from other statutes or employment-related statutes, such as Parts II and III of the Code that are subject to the duty of fair representation under the Code (see Richard Connolly et al. (1998), 107 di 120; and 45 CLRBR (2d) 161 (CLRB no. 1235), pages 143; and 185). The Board has also found that where no collective agreement exists, there cannot be a breach of section 37 (see Eugene Kalwa (1995), 96 di 157 (CLRB no. 1106) at page 160; and Adonica Huggins and Donna Green, November 11, 2000 (CIRB LD 357)).

42 A case in point are the rules relating to hiring halls in the longshoring industry. Unless the rules are part of the collective agreement, the duty of fair representation does not apply to a breach of these rules. However, it should be noted that section 68 of the Code provides that a collective agreement may require as a condition of employment that an employee be a member of a specified trade union, and that members of a specified union have preference of employment.

43 Another example are complaints relating to union discipline and the fair application of union rules. Unfair labour practice complaints against a trade union for

such violations are filed under sections 95(f) to (i) and not under section 37 of the Code.

44 Provincial workers’ compensation acts give employees rights, but these rights are usually not part of the collective agreement. Most unions will assist employees with workers’ compensation claims. However, they are not obligated to do so and the union’s actions in this regard are not subject to review by the Board, unless the collective agreement provides otherwise (see Yves Dumontier, [2002] CIRB no. 165; and 92 CLRBR (2d) 94, application for reconsideration dismissed in Yves Dumontier, July 25, 2002 (CIRB LD 692)).

45 A union is not required to pursue issues not covered by a collective agreement (treatment related to substance abuse, in Judah (Joe) Zegman (1996), 100 di 25 (CLRB no. 1151), or the judicial review of an arbitral award (see John Presseault, supra). Unions are not required to pay for a lawyer to represent employees facing criminal charges, employment-related lawsuits, professional discipline proceedings or fatality inquiries.

46 Internal union disputes, such as the right to attend union meetings, are not covered by the duty of fair representation under section 37 (Yves Dumontier, supra).

V – Role of the Employer in Section 37 Complaints

47 The employer is not a principal party to a section 37 proceeding. Its actions are not at issue and it has no case to defend. As a matter of practice, it is added as an affected party since its interests could be affected by the outcome of the complaint, that is, the remedy imposed by the Board if the complainant is successful. For this reason, the Board provides the employer with the opportunity of presenting its submissions on the question of remedy. The employer’s role with respect to the merits of the complaint is restricted to that of an observer.

VI – Violations Arising out of Negotiations Between the Union and the Employer

48 The union has a mandate to negotiate on behalf of employees in the bargaining unit. It is entitled to decide on demands and on bargaining strategies to advance the interests of the bargaining unit. It may disregard the wishes of individuals or minority groups, trade off demands, including individual grievances, or agree to terms and conditions that adversely affect individuals or groups of employees. The union, however, must engage in a rational decision-making process and recognize and consider the competing interests of all the employees in the bargaining unit. (For examples, see Vergel Bugay et al, supra; and Mario Soulière et al., supra, where the Board dismissed the complaints; and George Cairns et al., [1999] CIRB no. 35; and 2000 CLLC 220‑012, where the Board upheld the complaint.)

VII – The Role of the Board in Considering Complaints of Breach of the Duty of Fair Representation

49 The Board is an independent and adjudicative body whose role is to determine whether there have been violations of the Code. Although the Code gives the Board broad powers in relation to any matters before it, it is not an investigative body. Accordingly, it is not mandated to go on a fact-finding mission on behalf of the complainant, to entertain complaints of poor service by the union, to investigate the union’s leadership or to investigate complaints against the employer for alleged wrongs suffered in the workplace. Employees who allege that their union has violated the Code and wish to obtain a remedy for that violation must present cogent and persuasive grounds to sustain a complaint.

50 A complaint is not merely a perceived injustice; it must set out the facts upon which the employee relies in proving his or her case to the Board. A complaint goes beyond merely alleging that the union has acted “in a manner that is arbitrary, discriminatory or in bad faith.” The written complaint must allege serious facts, including a chronology of the events, times, dates and any witnesses. Copies of any documents that are relevant, including letters from the union justifying its actions or decision, should be used to support the allegations.

51 An important consideration is that all complaints must be filed no later than 90 days from the date on which the complainant knows or ought to have known of the incident leading to the complaint (section 97(2) of the Code). Furthermore, filing in the wrong venue will not suspend the delay (see Winfield Porter, [2002] CIRB no. 176; and 81 CLRBR (2d) 48). The reasons for having statutory delays within which to file complaints is to give some finality to disputes, since it is important in industrial relations to get on with the bargaining relationship by resolving matters rather than let them fester over a prolonged period of time (see Anil Kumar Luthra, August 10, 2000 (CIRB LD 273); Captain Brian Woodley et al., [2000] CIRB no. 85; and 69 CLRBR (2d) 161; and Marie Laperrière, March 13, 2003 (CIRB LD 821)).

52 If a complaint is filed outside the 90-day period, the complainant must provide compelling reasons as to why his or her application should be considered nonetheless. The Board assesses the reasonableness of the delay in filing a complaint on a case-by-case basis. (Note: Time frames for filing a complaint against a union with respect to discriminatory treatment and discipline of members under section 95(f) or (g) are subject to a different time bar pursuant to section 97(4) and (5) than the 90-day period referred to above under section 97(2) of the Code.)

53 Most instances of a complaint being dismissed relate to the fact that the complainant was unable to establish the facts upon which the Board could make a decision. This is often because complainants do not fully understand the Board’s role and treat it as an appeal of last resort from the union’s decision not to pursue their grievance or refer it to arbitration. Conversely, successful complainants allege detailed facts and the reasons why an employee reasonably believes that a decision was made based on improper factors or motives. The requested remedy is also a good indication as to whether a complainant understands the complaint process under section 37 of the Code.

54 Ultimately, if the union has directed its mind to the employee’s complaint, gathered the information relevant to making a decision, attempted to resolve the situation and reasonably exercised its discretion not to pursue a grievance or refer it to arbitration according to the criteria stated earlier, and informed the employee of its reasons for doing so, an employee will have little cause for complaint.

VIII – Right to a Hearing

55 Since the Code was amended in 1999, the Board has the unfettered discretion to decide a section 37 complaint without a public hearing. The scheme of section 16.1 of the Code and section 10(g) of the Canada Industrial Relations Board Regulations, 2001 (the Regulations) foresees that the Board may decide a complaint on the basis of the material filed, unless it considers that it has insufficient information before it to determine the matter and that the parties should be given the opportunity to advance their respective positions by way of an oral hearing. One or the other of the parties may request an oral hearing; however, the Board is not compelled to grant this request.

56 There is no requirement for the Board to give notice to the parties of its intention not to hold a hearing (see Nav Canada, April 5, 2000 (CIRB LD 213), affirmed in NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 2001 FCA 30 (CanLII), 267 N.R. 125 (F.C.A.); and Raymond et al. v. Syndicat des travailleurs et travailleuses des postes (2004), 2003 FCA 418 (CanLII), 318 N.R. 319 (F.C.A.)). The audi alteram partem rule, that is the requirement to hear both sides of a matter, does not require that an oral hearing be held in every case. The reviewing courts have clearly stated that the Board is only required to grant to the parties an opportunity to present their case, whether by written submissions, documents produced and its own inquiries (see Commission des Relations de Travail du Québec v. Canadian Ingersoll-Rand Company Limited et al., 1968 CanLII 93 (CSC), [1968] S.C.R. 695; Anne Marie St. Jean, supra; Boulos v. Canada (Labour Relations Board), [1994] F.C.J. No. 1854 (QL); and Nav Canada, supra, with respect to the discretion of this Board).

57 The principles that apply to the Board’s review of section 37 complaints are not new. The following quotation from Stephen Jenkins et al., June 9, 2004 (CIRB LD 1102) aptly summarizes the Board’s role in deciding such complaints and how its scope is often misunderstood by complainants:
The Board recognizes that the complainants will likely be bitterly disappointed with this decision. As a creature of statute, created by and charged with enforcing the Code, the Board’s power of review and remedy is limited. In this case, apart from attempting to provide the complainants with a clear and comprehensive consideration of their case, the Board is unable to intervene. The following passage from Michael Tremblay (1989), 76 di 201, (CLRB no. 728) is an appropriate and instructive statement to offer the complainants. Vice-Chair Eberlee described the limits of the Board’s power under section 37 of the Code and attempted to demystify what are often confusing and painful results to disappointed and disgruntled complainants:

“In a majority of the cases under section 37, complainants are not represented or assisted by legal counsel. This was true in this case. They often do not fully appreciate what the Board can and cannot do for them, if anything, under the law. Where the issue is a dispute between an individual and the union representing him over the union’s decision to drop or not to pursue a grievance, the complainant frequently expects that the Board will be able to make a decision on the actual merits of the grievance – to decide whether the suspension, or whatever took place, is appropriate and, if not appropriate, to modify or nullify it.

The Board is therefore careful at the beginning of a hearing in such circumstances to remind the parties that its mandate is only to judge the union’s handling of the grievance – to determine whether such handling shows evidence of having been ‘arbitrary, discriminatory or in bad faith’ – and not to decide the merits of the grievance. Thus it will focus primarily on the evidence showing how the union behaved. This was done before Mr. Tremblay and the union made their presentations in this case.

… The Board attempts to discourage the presentation of evidence pro and con the merits of the grievance but this is invariably smuggled into the testimony outlining the background of the complaint. It must be understood, however, that despite listening to such testimony, and perhaps even reporting it in reasons for decision when it helps to clarify the background, the Board in this case (and in its predecessors so far as we can tell) is not basing its determination on its reaction to the merits or otherwise of the grievance. We are not an arbitration board.

The results in cases involving allegations of violations of section 37 may well confuse observers who are not fully aware of the real purpose of section 37. In one case, for example, it may appear to be obvious to a reader of reasons for decision that the reported background facts show the grievance itself to have little or no merit, yet the Board has concluded that the union violated section 37 in dropping it. Or in another case, the reported background facts may be overwhelming in showing that the employer was wrong in doing to the employee what gave rise to the grievance, yet the Board has concluded that the union did not breach section 37 in dropping it. …

In the second [case], despite what it or others may think of the merits of a grievance, the Board in adjudicating on section 37 complaints can only challenge and change a union’s decision if it concludes that the process giving rise to the decision or the decision itself was arbitrary, discriminatory or in bad faith. Put another way, the union may make a wrong decision and not be in breach of section 37. …”

(pages 38-39)

58 In light of these principles, two cases referred to the undersigned for decision will now be examined.

Board File No. 23726-C – Ms. Virginia McRaeJackson and Ms. Jacoline Shepard

Appearances

Ms. Virginia McRaeJackson and Ms. Jacoline Shepard representing themselves;
Ms. Sue Szczawinska, on behalf of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada);
Mr. Colin Copp, on behalf of Air Canada Jazz (Air Canada Regional Inc.).

59 Having reviewed the parties’ submissions and the investigating officer’s report, the Board is satisfied that in accordance with section 16.1 of the Code the present matter may be decided without holding a hearing.

60 Ms. Virginia McRaeJackson and Ms. Jacoline Shepard (the complainants) filed complaints on May 26, 2003, alleging that the National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 2002 (CAW-Canada or the union) breached the provisions of section 37 of the Code by refusing to process their grievances.

61 The complainants worked in security positions at the Prince Rupert Airport, which at the time they were hired, were governed by a collective agreement between Air Canada Regional airlines (ACR) and the CAW-Canada. A new collective agreement between CAW-Canada and JAZZ Air Inc. was signed and ratified in July 2002. The new collective agreement did not renew a Letter of Understanding that existed in the former collective agreement that provided for bumping rights between classifications and divisions.

62 The complainants were laid off in February 2003 and, as a consequence, claimed bumping rights into Customer Service Agents (CSA) positions. This claim was denied by the employer in light of the provisions of the new collective agreement that does not provide for bumping rights between divisions. The complainants approached the union to complain about the denial of their claim to bumping rights but were told that under the new collective agreement, there was no basis for a grievance.

63 The complainants’ complaint before the Board is based on rights contained in the Letter of Understanding that existed in the ACR-CAW-Canada collective agreement and alleges that the union has discriminated against them. This is not the first complaint filed by these complainants, however, the facts of those complaints are not relevant to this one.

64 Relying on the earlier analysis of the law, there is no basis for a finding of discrimination. Discrimination relates to unlawful considerations in the union’s decision not to file a grievance, which is not the case here.

65 The union assumes, on behalf of all employees of the bargaining unit, the responsibility for collective bargaining and the content of the collective agreement. As stated earlier, it is not because the union takes a position that may be disfavourable to a group of employees that its conduct must be found to be discriminatory. Rights based on a previous collective agreement are unenforceable and a grievance based on these rights is doomed at the outset. It is easily foreseeable that an arbitrator’s ruling would be unfavorable to the complainants. Therefore, the union’s decision to refuse to file grievances was reasonable under the circumstances. The Board sees no reason to interfere with the union’s decision in this case.

66 The complaint, therefore, is dismissed as being without merit.

Board File No. 24142-C – Mr. Edwin F. Snow

Appearances

Mr. Edwin F. Snow, representing himself;
Mr. Gary Waxman, on behalf of the Seafarers’ International Union of Canada;
Mr. Augustus G. Lilly, Q.C., on behalf of Seabase Limited.

67 Having reviewed the parties’ submissions and the investigating officer’s report, the Board is satisfied that in accordance with section 16.1 of the Code the present matter may be decided without holding a hearing.

68 Mr. Edwin Snow filed a complaint on December 24, 2003, alleging that the Seafarers’ International Union of Canada (SIU or the union) breached the provisions of section 37 of the Code. The complaint does not indicate what conduct by the union or its officials is in violation of the Code, but rather consists of an extensive filing of documents concerning Mr. Snow’s history of employment and settlement documents.

69 Mr. Snow is a general purpose crew member employed by Seabase Limited, a crewing agent for A.P. Moller-Maersk A/S, since 1998. On September 4, 2003, Mr. Snow was laid off in accordance with the seniority provisions of the collective agreement and subsequently recalled for another assignment on September 9, 2003. He notified the SIU on the day of recall that he felt that the terms of a Memorandum of Settlement, dated December 19, 2002, had been breached by the employer and therefore asked the union to “immediately provide [him] with qualified legal advice.”

70 In response to this letter, the SIU filed a grievance on his behalf in order to protect the time limits for filing a grievance while it investigated the matter. The employer denied the grievance. The union then wrote to Mr. Snow on September 19, 2003 asking him to provide evidence of the violation. On October 6, 2003, the union wrote to Mr. Snow telling him that since he had not responded, the union was closing its file. Mr. Snow did not respond until October 10, 2003, whereby he requested once more that the union provide him with qualified legal representation. The union wrote back that the employer was not in breach of the provisions of the collective agreement and that it was withdrawing the grievance. Mr. Snow thereafter filed this complaint on December 24, 2003.

71 As a matter of background, Mr. Snow was terminated in September 2002 and subsequently reinstated as the result of the settlement of his grievance. In his various replies to his complaint, the Board understands that Mr. Snow alleges that the employer violated the seniority provisions of the Memorandum of Settlement when it laid him off and recalled him in September 2003. Mr. Snow asks as his only remedy that the union be ordered to provide him with qualified legal representation concerning “this matter.”

72 The union submits that Mr. Snow was reinstated to a full-time position in accordance with his seniority in January 2003 and the Memorandum of Settlement, the terms of which were reached in agreement with Mr. Snow. Thereafter, his employment continued to be governed by the terms of the collective agreement. Annually revised seniority lists were available at the union’s offices and posted on the employer’s vessels.

73 The union states that the documents filed in support of the complaint demonstrate that the SIU in fact properly considered all aspects of Mr. Snow’s case before arriving at its conclusions that the grievance had no merit. The union argues that there is no evidence of any arbitrary, discriminatory or bad faith conduct on its part and asks that the complaint be dismissed.

74 The employer filed submissions about the history of this complaint, which were helpful in deciphering the substance of the complaint, but that need not be considered for the Board’s ruling.

75 In this case, the complainant has not established a prima facie case of union conduct that violates the Code. Rather, this case centers on the complainant’s perceived violation by the employer of his terms of reinstatement. This is not a proper subject matter of a breach of the duty of fair representation under section 37 of the Code. Not only did the complainant misunderstand the grounds for a section 37 complaint, but he also requested a remedy that does not flow from the alleged complaint.

76 The complainant agreed to the conditions of reinstatement negotiated by the union in January 2003. Any complaint about the inadequacy of these conditions at this time is clearly untimely. Any other failings by the union are not described or alleged. There are, therefore, no relevant facts upon which to consider this complaint of a violation of section 37 of the Code.

77 Accordingly, this complaint is dismissed as being without merit.

IX – Conclusion

78 In conclusion, the facts of each case determine whether or not the union’s conduct has fallen below the standard found acceptable to the Board. The union’s representation of employees involves rights under the collective agreement, and, as a consequence, considerable latitude is given to the union in determining how those rights are to be applied.

79 As these cases illustrate, to the extent that the union has investigated a grievance or potential grievance, put its mind to its merits in light of all the circumstances and made a reasoned judgement about its possible outcome, there will be no cause for the Board to intervene.

CASES CITED

Adams (Robert), [2000] CIRB no. 95; and 73 CLRBR (2d) 132

Blacklock (Fred) et al., [2001] CIRB no. 139

Bouchard (Serge) et al., [2003] CIRB no. 259

Boulos v. Canada (Labour Relations Board), [1994] F.C.J. No. 1854 (QL)

Bugay (Vergel) et al., [1999] CIRB no. 45; 57 CLRBR (2d) 182; and 2000 CLLC 220‑034

C.A.L.P.A. v. Eamor (1997), 39 CLRBR (2d) 52

Cairns (George) et al., [1999] CIRB no. 35; and 2000 CLLC 220‑012

Campbell (William), [1999] CIRB no. 8

Canadian Council of Railway Operating Unions v. Robert Adams et al., judgment rendered from the bench, no. A‑719‑00, February 13, 2002 (F.C.A.)

Canadian Merchant Service Guild v. Guy Gagnon et al., 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509

Centre hospitalier Régina Ltée v. Labour Court, 1990 CanLII 111 (SCC), [1990] 1 S.C.R. 1330

Commission des Relations de Travail du Québec v. Canadian Ingersoll-Rand Company Limited et al., 1968 CanLII 93 (CSC), [1968] S.C.R. 695

Connolly (Richard) et al. (1998), 107 di 120; and 45 CLRBR (2d) 161 (CLRB no. 1235)

Coulombe (Gaétan), [1999] CIRB no. 25

Crewdson (1992), 93 CLLC 16,014 (CLRB decision no. 977) (decision subsequently rescinded following parties’ agreement)

Dumontier (Yves), [2002] CIRB no. 165; and 92 CLRBR (2d) 94

Dumontier (Yves), July 25, 2002 (CIRB LD 692)

Durette (Herman), November 20, 2003 (CIRB LD 957)

Eamor (Brian L.) (1996), 101 di 76; 39 CLRBR (2d) 14; and 96 CLLC 220‑039 (CLRB no. 1162)

Gagné (Ghislaine), [1999] CIRB no. 18

Griffiths (Terry), [2002] CIRB no. 208; and 89 CLRBR (2d) 135

Harris (William (Bill)), [1999] CIRB no. 43; and 57 CLRBR (2d) 216

Harris (William Bill), April 3, 2000 (CIRB LD 209)

Henderson (Clive Winston), [1999] CIRB no. 29; and 2000 CLLC 220‑006

Huggins (Adonica) and Green (Donna), November 11, 2000 (CIRB LD 357)

International Brotherhood of Locomotive Engineers v. Cairns, [2002] F.C.J. No. 585 (QL)

International Brotherhood of Locomotive Engineers v. Cairns et al. (2000), 252 N.R. 160 (F.C.A.)

International Longshore and Warehouse Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd., [2000] F.C.J. No. 1929 (QL)

Jenkins (Stephen) et al., June 9, 2004 (CIRB LD 1102)

Judd and C.E.P., Local 2000 (2003), 91 CLRBR (2d) 33 (B.C.)

Kalwa (Eugene) (1995), 96 di 157 (CLRB no. 1106)

Laperrière (Marie), March 13, 2003 (CIRB LD 821)

Lecavalier (Jacques) (1983), 54 di 100 (CLRB no. 443)

Lemi (Tadele), [1999] CIRB no. 24

Little (Garry), [2001] CIRB no. 114

Luthra (Anil Kumar), August 10, 2000 (CIRB LD 273)

Massicotte (Gerald M.) (1980), 40 di 11; [1980] 1 Can LRBR 427; and 80 CLLC 16,014 (CLRB no. 234)

Mikedis (Nicholas) (1995), 98 di 72 (CLRB no. 1126)

Misiura (Yvonne), [2000] CIRB no. 63; and 59 CLRBR (2d) 305

Nav Canada, April 5, 2000 (CIRB LD 213)

NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 2001 FCA 30 (CanLII), 267 N.R. 125 (F.C.A.)

Pinel (Raynald), [1999] CIRB no. 19

Pollock v. R., [1982] 1 F.C. 710

Porter (Winfield), [2002] CIRB no. 176; and 81 CLRBR (2d) 48

Powell (Esper), [2000] CIRB no. 97

Presseault (John), [2001] CIRB no. 138

Raymond et al. v. Syndicat des travailleurs et travailleuses des postes (2004), 2003 FCA 418 (CanLII), 318 N.R. 319 (F.C.A.)

Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 CanLII 220 (SCC), [1996] 1 S.C.R. 369

Seafarers’ International Union of Canada v. Nicholas Mikedis et al., judgment rendered from the bench, no. A-461-95, January 11, 1996 (F.C.A.)

Sheobaran (Orna Monica), [1999] CIRB no. 10

Soulière (Mario) et al., [2002] CIRB no. 205; and 94 CLRBR (2d) 307

St. Jean (Anne Marie), [1999] CIRB no. 33

Teamsters Union Local 938 v. Massicotte, [1982] 1 F.C. 216

Tremblay v. Syndicat des employées et employés professionnels-les et de bureau, section locale 57, 2002 SCC 44 (CanLII), [2002] 2 S.C.R. 627

Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1167 (QL)

Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1256 (QL)

VIA Rail Canada Inc. v. Cairns et al. (2000), 2000 CanLII 16152 (FCA), 261 N.R. 24 (F.C.A.)

Via Rail Canada Inc. v. Cairns (2004), 2004 FCA 194 (CanLII), 241 D.L.R. (4th) 700 (F.C.A., no. A-273-03)
Woodley (Captain Brian) et al., [2000] CIRB no. 85; and 69 CLRBR (2d) 161

Zegman (Judah (Joe)) (1996), 100 di 25 (CLRB no. 1151)

STATUTES CITED

Canada Industrial Relations Board Regulations, 2001, ss. 10(g)

Canada Labour Code (Part I), ss. 16.1; 36(1)(a); 37; 57; 68; 95(f), 95(g), 95(h) , 95(i); 97(1), 97(2), 97(4), 97(5); 99