Unionized workers hiring their own lawyers: 3 issues

I often receive requests for consultations from unionized workers dissatisfied with their employer, their union or both. Frequently, this dissatisfaction arises out of the worker having a grievance with the company, but he or she feels that they are not receiving proper representation from their union. Before going ahead and hiring a lawyer outside of their union for advocacy, there are 3 challenges that people in this position should know.

1. Your union is your exclusive bargaining agent—Further to the collective agreement and the British Columbia Labour Relations Code (or the Canada Labour Code for federally regulated employees), the union is the legal representative of unionized workers in the employment/labour relationship. In this capacity, the union has the exclusive right to file a grievance, negotiate or resolve a dispute and advocate on your behalf.
2. Private legal counsel will not have jurisdiction—If you are frustrated by the union and the lack of representation they are providing, hiring your own lawyer is unlikely to provide much benefit. Not only will you be responsible for paying your own legal costs, but even if you are successful in hiring a lawyer, the employer will not recognize the jurisdiction of private counsel. In fact, the employer may even refuse to respond to a unionized worker’s privately hired lawyer on this basis.
3. There are little remedies to compel a union to act—Assuming that a worker has a valid grievance, there are few remedies to compel a union to act if it refuses to pursue a grievance. When being faced with a grievance, there are a number of valid concerns which may impact the union’s decision, including its responsibilities towards the unionized member, its obligations towards membership as a whole, responsibly using scarce resources and the relationship with the employer. For this reason, case law has recognized that a union has a “duty of fair representation”, although what constitutes ‘fair representation’ may not be as robust as many union members like.

To make a case that a union is failing to represent a union member, in British Columbia the member will be required to file an application with the Labour Relations Board under s. 12 of the Labour Relations Act. In filing such an application, the member will need to demonstrate one of the following:

a) the union is motivated by bad faith—for instance, the union is motivated by personal hostility, political revenge, dishonesty or corruption;

b) the union is discriminating against the member—this could include discrimination on prohibited grounds such as gender or race, but could also be as simple as favouritism (for example, the union refuses to file a grievance for bullying and harassment as the union executive is providing preferential treatment to the alleged bully); or

c) the union is acting arbitrarily—for instance, disregarding the interests of the member in a cursory manner, or dealing with a backlog of grievances by arbitrarily dismissing half of them.

Filing an application for failure to represent can be extremely difficult to prove, and only a minority of applications succeed. Further, if the union made a decision not to pursue a grievance after carefully looking at the facts, the likelihood of a successful application is very remote. Just because a member disagrees with the union’s decision does not mean that the union is failing to represent him or her.

With these three points in mind, most consultations I provide to unionized workers typically explore strategies of working with the union and getting them to provide active, timely advocacy. However, for those unfortunate members that have a passive or overly compliant union leadership, there may be limited options for advancing a grievance. As I have said many times, workers with a weak union may be better off with no union.

By: David M. Brown, Kent Employment Law

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