You may also want to try www.canlii.org for research purposes. Unfair Labor Practice Charges: 8(b)(1)(A) Duty of Fair Representation, incl'g Superseniority, denial of access. Unless your statement of complaint is really brief, don't try to squeeze it into the small space provided on the LRB forms. Thus, in some cases, an employee will not be able to proceed with what he or she considers a legitimate grievance. State what happened and how it is evidence of arbitrariness, discrimination and/or bad faith behavior. 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. How much information must be provided in the complainant's initial written submission? The City agrees to deduct from the salary of each member of the unit, who Should the complainant be general or specific when speaking about their allegations? When Fair Representation Doesn’t Occur If your union has brushed off your concerns or has not represented you fairly to the board, you still have the right to pursue your grievance. http://www.canlii.org/en/ca/scc/doc/1984/1984canlii18/1984canlii18.html. Respond to these kinds of statements by stating that your submission is clear and concise and, if taken at face value, is sufficient to establish a prima facie breach of the Labour Relations Act. As such, the employee organization has exclusive authority to bargain collectively on behalf of the employees in … You can write in the first person (this is where you refere to yourself as "I" or "me") or the third person (where you refer to yourself as "the applicant" or "the complainant") - whatever you are more comfortable with. Duty of Fair Representation The statutory fight of exclusive representation mandates fair representation of all members of a bargaining unit. Each new allegation or argument should be a separate paragraph. You asked why and he simply told you that it's a bullshit issue, you'll never win it and it will just sour relations with the employer. DelCostello v. Int'l Bhd. For example, it has been found to be arbitrary for a union to accept the employer's version of a grievance without giving the employee a chance to respond. The complaint must be filed with the FPSLREB. If you live far away from their offices, ask if they can mail or fax you copies (there is probably going to be a fee for this) or you may want to find out if copies of LRB decisions are available at your local reference library. To date, FPSLREB and its predecessor, the Public Service Labour Relations Board, have allowed only a small number of complaints involving the duty of fair representation. Unless the context in which they are used clearly requires otherwise, words used in this Agreement denoting gender shall be construed to refer to both male and female employees. Right to fair representation You have a right to be represented by your union fairly, in good faith, and without discrimination. If you've read the first two articles in our DFR series, you'll know that you are in for an uphill battle, however, win or lose, you can still teach your union, your employer and your provincial Labour Relations Board (LRB) a lesson about what happens when they use workers' rights for a doormat. Bad Faith ...has been defined to include decisions based on ill will, hostility or revenge toward an employee. The unionâs decision must not be arbitrary, capricious, discriminatory or wrongful. It also forces their presentatives to look up and study the cases you've cited. Where a grievance lacks merit, or where the interests of the individual must yield to the greater interests of the group, a union must be free to settle or drop a grievance. From our earlier segments you will know that there's an awful lot of unfair representation that is tolerated by the LRB's: Stupidity, negligence, corruption - and a litany of other bad behavior - on the part of union officials have all, at one time or another, been excused as a small enough price to pay for good relations between employers and unions. Open with a paragraph that generally describes the nature of your complaint: "My union has failed in its duty of fair representation in that it has failed to/refused to.....". Stick to the facts. Are we cool? We are not lawyers and we don't do legal advice. Your remedy will be "An order directing my union to file a grievance on my behalf..." Or "an order that the union advance my grievance to arbitration". These may give you some idea of where the landmines are in these cases. The union's conduct is arbitrary, discriminatory or in bad faith. Write your submission on as many pages as you need and attach it to the LRB forms as an "Appendix" or "Attachment". If your complaint alleges arbitrary, discriminatory or bad faith behavior on the part of your local and you national or international union, name both or all as respondents. Use layperson's language (ordinary every day words and phrases). It's better to go after remedies that you stand a chance of getting or, at least, ones that you can put forward a rational argument for. This is really important because wherever you live, your LRB will be looking for reasons to dismiss your complaint as soon as it reaches the mailroom. Most LRB's will require you to visit their offices and do this kind of research yourself. This section also provides for the processing of grievances by If you feel inclined to ask for compensation, make it a reasonable amount and state what it is for. As the burden of proof lies with the complainant, there are a number of factors should be considered before submitting a complaint to the PSLREB: To file a complaint with the FPSLREB concerning the duty of fair representation, please fill out Form 16, Complaint Under Section 190 of the Act, available on the FPSLREBâs website. Go through each of their submissions and high light anything you disagree with or that you believe is not factual. If you can find a lawyer who will charge you a modest fee or better yet, do your case pro bono, (contact your local law society to find sources of possible pro bono help in your area), by all means go for it. Win or lose, you can make 'em sweat. Philadelphia and IAFF Local 22 Prevail in Suit by Terminated Firefighter. The bargaining agent is given exclusive authority to represent all employees in the unit in dealing with their employer. The "duty of fair representation" as stated in Section 74 of the Labour Relations Act says that a trade union shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing employees. Duty of Fair Representation The Canada Industrial Relations Board certifies trade unions as bargaining agents to represent employees in a defined bargaining unit. This book is for use … Mr. X responded that my complaint was "bullshit", that I would never win and all I would do is strain relations between the employer and the union. The term may also include deceitful or dishonest conduct. Don't leave anything out unless your LRB has told you that you don't have to supply details and will be able to do that later on. The Collective Agreement is the contract between the worker and employer. Duty of Fair Representation Section 12 of the Labour Relations Code prohibits unions from acting in a manner that is arbitrary, discriminatory or in bad faith when representing their members. What time limits do complaintants need to be aware of? A union owes a duty of fair representation to all of the workers it represents. Don't ask for millions of dollars in damages or for your union rep's head on a stick. Make sure that your complaint includes a statement to the effect that "The union's actions [whatever it did or did not do] are arbitrary, discriminatory and/or in bad faith.". Get the appropriate forms from your LRB and fill them out, following any instructions that come with them to the letter. There is usually a time limit for this and you will receive copies of what they file with the LRB. Some pointers: This is an excerpt from a BC LRB bulletin that describes how that LRB defines arbitrary, discriminatory and bad faith conduct on the part of unions: Arbitrary, as used in Section 12, has been defined to include conduct, which is perfunctory, reckless or indifferent to an employee's interests. Explain how your union's actions constitutes arbitrary, discriminatory or bad faith conduct. A Philadelphia firefighter who was terminated following his second conviction for driving under the influence, has lost his civil suit against the city and Philadelphia Firefighters IAFF Local 22. In this case, your complaint might say: "On [date] I met with my union representative Mr. X and explained the basis of my complaint which was_______________. It will look at how the bargaining agent acted and the process it used to make its decisions concerning the employee's case. The duty of fair representation is incumbent upon U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. A duty of fair representation includes a union’s responsibility to bargain for and to enforce the collective bargaining agreement, as well as process meritorious grievances filed by the employees within the bargaining unit. If you have any additional questions regarding the duty of fair representation, or other sections of the Code which may deal with union members and their union, please contact our Information Officer at 660-1300. International Association of Fire Fighters . Information Bulletin # 12 - The Duty of Fair Representation – What Does it Mean? However, arbitral jurisprudence to date has allowed individual officers to bring a “duty of fair representation” (DFR) grievance against a Police Association. 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. The FPSLREB's Policy on Openness and Privacy explains why information filed with the FPSLREB is generally available to the public and why it could be reported in a decision posted on the FPSLREB website and distributed to publishers. Duty of Fair Representation (Complaints about a union) When a union is certified, or is voluntarily recognized by the employer, it becomes the exclusive bargaining agent for all employees in a bargaining unit. Do not do a rant or make wild accusations. For this reason, what you say in your complaint is really important. Does the LRB notify them or does the complainant do this? You won't get these kinds of remedies and, again, the LRB guys will just label you a "loose cannon" and have a few laughs at your expense. A complaint must be made to the FPSLREB not later than 90 days after the date on which the complainant knew or should have known of the action or circumstances giving rise to the complaint. Legal Department . Legal Disclaimer: Before we begin, we're going to alert you to something that is important for you to understand before you read the rest of this article: What we are about to tell you is not legal advice. Duty of Fair Representation Local 718 agrees to represent fairly all employees covered by this Agreement whether or not they are members of Local 718 and regardless of race, religion, color, creed or national origin. This is where the issue of the duty of fair representation arises. This is really up to you. The FPSLREB will consider whether the bargaining agent put its mind to the merits of the employee's case, considered relevant factors and made an objective and rational judgment about how to resolve the matter. A-50: Application Under Section 58(3) of the Act (Early Termination of Collective Agreement) Electronic Submissions. If your complaint involves your dismissal, remind the LRB that unions have been found to have a higher standard of fair representation to meet just because of the severe impact of a dismissal on a worker. Duty of Fair Representation Diaz first argues the trial court erred in rendering a summary judgment against him on his duty-of-fair-representation claim. Then move on to the substance of your complaint. Start at the beginning and work your way through chronologically. This is a really important part of your complaint. This legal duty arises out of the exclusive representative status unions hold under the National Labor Relations Act. There is no sure fire way of writing a DFR complaint that will assure you that your LRB won't read it and toss it. A breach of the duty of fair representation is a violation of law. The duty of fair representation applies to issues between an individual bargaining unit member and the union concerning representation of the employee in relation to the employer. Duty of Fair Representation. This is where we can come in. Section 1.3 Gender. What you say may determine whether you get any further with your complaint so listen up. In their responses, the union and the employer will more than likely say something to the effect that you have not established a "prima facie" case of a breach of the DFR legislation or that you have not been clear enough or provided sufficient information. Originally recognized by the United States Supreme Court in a series of cases in the mid-1940s involving racial discrimination by railway workers' unions covered by the Railway Labor Act, the duty of fair representation also applies to workers covere None of this is essential but you might as well let the LRB guys know that you are a real live human being. For this reason I assert that my union, of which Mr. X is a representative, acted in an manner that is arbitrary and prohibited under Section [?] Part 3 in our series will give you some pointers about two very important aspects of the complaint process - writing your complaint submission (the document that you will send to your provincial LRB setting out the details of your complaint) and the LRB mediation meeting where an employee of the LRB (for purposes of this toolkit piece, we're going call these people "LRB guys") will attempt to settle your complaint before it goes to a formal hearing. What is the process for filing a DFR complaint? If it's your responsibility to send a copy to the union and the employer (the employer is almost always involved in DFR cases as an "intervener" or "interested party" - a party that stands to be affected by the outcome of the case), ensure that you do this. If so, does the complainant get to do a rebuttal? However, it is important to note that within the legal parameters of section 187, the bargaining agent has discretion to determine the scope of representation. General Explanation. Duty of Fair Representation Part 3: Writing a Kickass Complaint So you've decided to file a duty of fair representation (DFR) complaint against your union. It can only be enforced by unions filing grievances on behalf of individual workers, alleging an employer breach of some kind or challenging the employer’s discipline. Actions made in bad faith are generally described as those motivated by personal feelings of hostility or ill will toward an employee. Again, keep to the facts, avoid making wild accusations and restate your position: The union acted arbitrarily, discriminatorily and/or in bad faith. Now get ready to kick some more bureaucratic butt because: Part 4 - LRB Guys Are Jerks. He's making a decision off the top of his head without any indication that he's considered the issue (and your rights and entitlements) carefully. This is a step in the DFR complaint process where you actually have a lot of control - what to say in support of your complaint is entirely up to you. You can refer to these in your submission and later in your hearing and argue that other tribunals have held that the kind of behavior that you are complaining about is arbitrary, discriminatory or in bad faith. Of course, having a legal representative who is knowledgeable about the LRB's procedures, writing the necessary documents and arguing before the Board is a plus. If you have to submit a handwritten statement, ensure that it's legible. A claim for breach of the duty of fair representation is governed by the federal six-month statute of limitations. Duty of fair representation is the legal duty of a union to equally, and in good faith, represent every employee in a bargaining unit, regardless of whether the employee is a union member or not. This will only make the LRB guys laugh and tempt them to dump your complaint. Without them, your complaint is incomplete and so, open to various challenges by your union and your employer. You'll be asked to provide a statement of some kind setting out your complaint. This is a pretty simple example, but you get the picture, right? Coyle does not allege that he filed a grievance regarding the pay discrepancy and that Local 4420 breached its duty with respect to the processing of that grievance.” Coyle v. Pasco County Firefighters, 44 FPER ¶ 151 (Fla. PERC Gen. Coun. Ask the LRB to provide you with copies of decisions where complainants have been successful in winning their DFR complaints or, in the least, to give you the names of these cases so that you can research yourself. In deciding whether or not a bargaining agent has acted in a manner that is arbitrary, discriminatory or in bad faith, the FPSLREB will assess the bargaining agent's conduct as to how it handled an employee's case. The duty of fair representation does not normally apply to internal union matters, … Start by looking for cases from your own province. Typically, the labour relations statute under which … Mr. X went on to state that the union did not want to waste its money on complaints of this kind. IAFF General Counsel Douglas L. Steele, Esq. Rows Returned: 23 Washington, DC 20006 (202) 737-8484. The Straight Goods on the Duty of Fair Representation part 1. . DUTY OF FAIR REPRESENTATION In addition to the foregoing, the Bill 181 amendments provide that a Fire Association shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the firefighters in the bargaining unit, whether or not they … The forms will ask for some basic information about you and your union. The Federal Public Sector Labour Relations and Employment Board (the FPSLREB) certifies employee organizations as bargaining agents for given bargaining units. If your search comes up empty, move on to other provinces. The bargaining agent cannot be expected to drop everything in order to pursue the interests of a single employee or to guarantee that every decision it makes accords with that employee's wishes; it can only be expected to consider issues affecting the individual employee fairly and in a conscientious manner (, Employees do not have an absolute right to be represented by their bargaining agent in the grievance process (, As per subsection 190(2) of the FPSLRA, a complaint must be made to the. Duty of Fair Representation Individual officers may not bring grievances against a Police Services Board. I told Mr. X that what my employer was doing is in violation of article X.XX of the collective agreement. Does the LRB have the power to dismiss the complaint without holding a hearing? Tag Archives: breach of the duty of fair representation. You're pretty much limited to whatever the union should have done if it had represented you fairly: If your complaint is that your union refuses to file a grievance. The union then negotiates and enforces a collective agreement. Look also at DFR decisions where they complainant was unsuccessful. If possible, have someone read over your submissions and tell you whether or not they understand what you're saying. Discriminatory... has been defined to include different treatment due to the employee's race, sex, religion or disability. This is generally is how LRB's define arbitrary, discriminatory or bad faith conduct. It can be delivered by hand or courier, or be sent by mail, electronic mail, fax transmission or other electronic means. This obligation emanates from Section 5 of Chapter 150E. Discuss these definitions with your own LRB to determine if there are any differences or nuances that you should be aware of though. Electronic Submissions. If the LRB officials who review your complaint when it is first received don't think you've made out a convincing case that your union acted in a manner that is arbitrary, discriminatory or in bad faith, they'll dump your complaint without holding a hearing. There are perhaps as many misconceptions about the duty of fair representation as any other principle in the public safety workplace. Thomas A. Woodley, Esq. What you do at the mediation meeting with the LRB guy may decide whether whether your complaint goes ahead to hearing, is withdrawn or settled on a basis that may or may not be acceptable to you. More detail is usually better than less. (Enter "duty of fair representation" as a search term and go from there.) 1995, c. 1. The duty of fair representation does not impose an absolute duty on a union to carry every grievance filed by an employee to arbitration. The duty of fair representation does not attach to these discussions. Our aim is to give you some pointers, suggestions and insight that may help you prepare your written submission and avoid getting bamboozed during mediation. In Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. You then have a period of time in which to respond to what they've said. Information Bulletin # 11 - Duty of Fair Representation Applications IB-12: Information Bulletin # 12 - The Duty of Fair Representation – What Does it Mean? Some DFR complainants have done remarkable job of representing themselves. Contact your provincial LRB and ask to speak to someone who is authorized to advise the public about the process for filing DFR complaints. http://www.canlii.org/en/ca/scc/doc/1984/1984canlii18/1984canlii18.html, Guide for self-represented complainants alleging an unfair labour practice. The courts have long recognized a common law duty of fair representation owed by a bargaining agent to the employees in the bargaining unit, including the Supreme Court of Canada in the 1984 case of C.M.S.G. A poorly written submission will give your LRB an excuse to do just that or will, in the least, give your union and your employer an advantage if you get to a hearing. You've got a tough road ahead, however, that doesn't mean that you should not file your complaint or that you … For example: Let's say that you told your union that you wanted to file a grievance about something your employer is doing that you believe violates your collective agreement. Sign and date your statement and any forms that must be filed. You need to cover off the following bases: These are the key elements of your submission. To "lawyer up" or not? Submit your complaint through whatever method of delivery your LRB allows, preferably something that gives you an acknowledgement that your complaint has been received. These words have been interpreted in a number of cases by the Ontario Labour Relations Board. Early Termination of Collective Agreement. The duty, which is owed to all bargaining unit members, captures a union’s obligation to fairly represent all its members without discrimination. LRB's love their own jurisprudence. Once you've filed your submission, your employer and your union will get an opportunity to respond to your allegations. How you write your complaint may determine whether you ever get to a hearing and what issues the LRB will or won't consider if you do. OK, let's do it. You may be able to claim that the union rep is acting in a manner that is arbitrary.
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