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43 Similarly, I am not persuaded that Jackson was dishonest with the Complainant during the grievance processes. As the Board held in Judd, the union’s deception must go to the quality of the representation. For the most part, the Complainant’s allegations of dishonesty are with respect to the evidence Jackson gave before the Board and were offered as a challenge to Jackson’s credibility. I find the Complainant has not established, on the evidence, that Jackson was dishonest with him during the Initial Grievance or the LCA Grievance in a way that affected the quality of the representation.read more
DUTY OF FAIR REPRESENTATION – CANADA INDUSTRIAL RELATIONS BOARD – “MCRAE JACKSON” DECISION – SEE http://www.cirb-ccri.gc.ca
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 appliedread more
A union’s exclusive bargaining agency gives it the right to make all decisions concerning a collective agreement on behalf of the employees. Matters such as whether to proceed with a grievance, whether to settle or drop the grievance, and whether to take the grievance to arbitration are all decisions for the union to make. When a union decides not to proceed with a grievance because of relevant workplace considerations — for instance, its interpretation of the collective agreement, the effect on other employees, or because in its assessment the grievance does not have sufficient merit — it is doing its job of representing the employees. Section 12 prohibits a union from representing an employee in the bargaining unit in a manner that is arbitrary, discriminatory, or in bad faith. To meet its duty, the union must ensure it is aware of the relevant information when making a decision concerning an employee’s representation. Its decision must be based on reasoned judgment and not on improper factors. Lastly, it must carry out an employee’s representation in a manner that does not show blatant or reckless disregard for the employee’s interests. If a union does these things, it has not violated Section 12. The fact that a complainant may disagree with a union’s reasons for dropping or settling a grievance does not demonstrate a failure to consider the relevant circumstances, nor blatant or reckless disregard. In order to advance past Section 13, a Section 12 complaint must disclose sufficient evidence to establish that a contravention of Section 12 has apparently occurred. If it does not, the complaint will be dismissed. The Board will endeavour to give effect to the legislative direction in Section 13 and render quicker, shorter decisions that allow the parties to get on with their affairs with certainty.read more
Arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?read more