I attended at an excellent webinar on February 1, 2019 called “Unions and member-on-member misbehaviour” put on by the Canadian Industrial Relations Association (CIRA). As a management-side labour and employment lawyer I confess that I don’t spend a lot of time thinking about a union’s duty of fair representation obligations under labour relations legislation nor about the union’s specific obligations under human rights legislation. I do, however, think about those obligations to the extent that they impact on my clients – for example, employers often hear that the union is in a “box” and are taking the position they are because they are concerned about a DFR and have to pursue a matter, or represent a member, albeit, at times, in cases that may well have little likelihood of success. This approach is frustrating to employers who are sometimes dragged along because the union is worried about taking a difficult position.
In any event, the webinar was enlightening to me and shed some helpful light on the tough decisions that unions are required to make. More specifically, it was an interesting discussion of the conflicting obligations that unions sometimes have when making representation decisions in circumstances of member to member harassment and bullying, for example. The presenters identified some of the legal and practical challenges faced by unions.
Union’s who support the alleged bully through, for example, grievance and arbitration will often assume that the alleged victims’ interests are aligned with the employer and that there is adequate representation because of that suspected alignment. But that may well be an incorrect assumption, and, in any event, does not adequately and without more respond to the union’s duty of fair representation obligations that it owes to each member individually. Furthermore, by supporting the alleged bully may have the effect of disenfranchising members and marginalize the union at least in the eyes of some. The latter point may be particularly poignant in the #MeToo and #TimesUp era.
A case that was mentioned on the webinar was CB, HK & RD v Canadian Union of Public Employees, Local No. 21, 2017 CanLII 68786 from the Saskatchewan Labour Relations Board.
Doing a little post-webinar research following the presentation I found an article Fair Representation and Conflict of Interest: Sexual Harassment Complaints between Co-Workers, 1997 CanLIIDocs 5 that looks at this issue.
The CIRA webinar provided some excellent information in further understanding this complex and difficult issue.