When a unionized employee initiates a harassment or discrimination complaint concerning another member’s conduct, the union representing the employees may be required to make difficult decisions about its involvement. The person making the complaint may want the union to file a grievance about the employer’s failure to provide them with a workplace free of discrimination and harassment. The respondent to the complaint may, on the other hand, ask the union to challenge the fairness of the investigation, or any resulting discipline.
In most unionized environments, it is the union that determines whether to launch a grievance. However, it also owes a duty of fair representation to each of its members, whether a complainant or respondent. It can be challenging to decide how or if to support each member.
The duty of fair representation requires a union to act in a manner that is not arbitrary, discriminatory, or in bad faith when it represents its members. Unions are not held to a standard of perfection, but they must act reasonably and be guided by the facts of each case.
In particular, to meet their fair representation obligation, a union must investigate the circumstances before making a decision about whether to support a complainant or respondent in a dispute. For example, in Mr. G v. Teamsters, Chauffeurs, Warehousemen, and Helpers Union, Local No. 880, the union did not breach its duty of fair representation even though it withdrew a grievance filed on behalf of a member who had been dismissed for harassment. The decision to withdraw the grievance was made after the union hired a lawyer to investigate the situation, and concluded that the complainants’ version of events was more credible than the respondent’s story. The investigation provided the union with a reasonable basis upon which to withdraw its grievance.
The union’s duty of fair representation also requires it to consider the interests of both sides of a dispute between its members. In J.D. v. Canadian Union of Public Employees Local 101, for example, an employee had been convicted of sexually assaulting another employee. He served a prison sentence, after which the union supported his return to work but failed to consult the employee who had been assaulted. The Ontario Labour Relations Board found that the union had failed in its duty of fair representation because it did not seek the complainant’s views about the respondent returning to work.
Similarly, the union was found to have violated its duty of fair representation in CB, HK & RD v Canadian Union of Public Employees, Local No. 21 because it to did not take seriously harassment complaints made by several women against other members of the bargaining unit, consistently failing to communicate with them in any meaningful way, and failing to file timely grievances.
In assessing whether to proceed with a specific grievance, unions should consider whether they can take a position that reconciles the seemingly conflicting positions of its members. For example, in Jacques v. Public Service Alliance of Canada [PSSRB file No. 161–2–731 (1995) (QL)], the union decided to represent a grievor terminated for alleged sexual harassment of a co-worker, but only on the issue of whether the penalty imposed was appropriate. The union was found to have met its duty of fair representation by recognizing that the sexual harassment had occurred but limiting its legal position to whether the discipline the employer had imposed was excessively harsh.
When members make workplace complaints about each other, a union should carefully follow certain best practices to avoid running afoul of its duty of fair representation. It should follow its internal policies on determining whether grievances should be referred to arbitration. If possible, it should make separate union representatives available to the complainant and respondent to avoid potential conflicts of interest and ensure members feel supported in the process. The union should further engage in open and clear communications with the members who are involved, including allowing the members the opportunity to present their versions of events. Of course, it may be advisable for unions to seek legal advice as these difficult and complex events arise.