THE DUTY OF FAIR REPRESENTATION (DFR) - IN A NUTSHELL

The Ontario Labour Relations Act, Section 74: Duty of fair representation by trade union, etc. - A trade union or council of trade unions, so long as it continues to be entitled to represent employees in 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, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

What does the term "arbitrary" mean? (in the eyes of the Ontario Labour Relations Board)

The following behaviour may be found to be arbitrary:
1) abrupt, inconsiderate, indifferent, insensitive or
2) cavalier treatment of a grievor;
3) failure to investigate a grievance;
4) superficial, off-handed, perfunctory (i.e. unthinking, careless) investigation of a grievance;
5) failure to notify an employee of appeal procedures within the union;
6) processing a grievance in a manner that shows a reckless disregard for the interests of the grievor;
7) failure to inform and consult employees during negotiations (in those jurisdictions where a DFR complaint can be filed in relation to the negotiation of a collective agreement).

REMEMBER, HOWEVER, THAT HONEST MISTAKES, SIMPLE NEGLIGENCE OR ERRORS OF JUDGMENT DO NOT AMOUNT TO "ARBITRARY" TREATMENT.

What is "discriminatory" conduct?

Treating certain individuals or groups within a bargaining unit differently from others, if there is no valid labour relations reason for doing so, will be found to be discriminatory.

Where discriminatory treatment is alleged, it does not matter that union officials do not have a hostile or prejudiced motive. The union must be able to show that it has sound, objective reasons for making the distinction in question. These reasons will be particularly carefully scrutinized where employees' job security or seniority rights are affected. Differential treatment based on union membership and grounds prohibited by human rights legislations (race, creed, sex, etc.) are especially difficult to defend.

Consistency is important. Thus, in the context of grievance handling, where a union follows a practice of including grievors in settlement discussions, or of providing legal counsel at arbitration, it must have a good reason for departing from its practice in the case of the complainant.

What constitutes "bad faith"?

Bad faith towards an employee or group of employees involves a frame of mind which is actually hostile or malicious. Evidence of bad faith may consist of a prior history of personal hostility toward the employee, a desire for political revenge, lack of fairness or impartiality, intentional deception, flagrant dishonesty or sinister motives.

AS WITH ARBITRARY BEHAVIOUR, HONEST MISTAKES, SIMPLE NEGLIGENCE OR ERRORS OF JUDGMENT DO NOT QUALIFY AS EVIDENCE OF BAD FAITH TOWARDS EMPLOYEES.