There is a complex relationship between a unionized employee’s right to file a grievance under a collective agreement, when that grievance is considered a complaint under the employer’s Human Rights or Respect at Work policies, the outcome of any investigation of it, and the prospect of proceeding to arbitration. A recent case from the British Columbia Labour Relations Board (the “Board”), Sykora v. CUPE and Capital Regional District (2015 CanLII 63962 (BCLRB)) sheds light on this issue.
The complainant was a long service employee. She had a dispute with her employer in terms of where she would work in its operation. One aspect of this dispute was the complainant’s assertion that the employer “took care of the boys as usual”. She provided her union with a chronology relating to her concerns of gender discrimination in her employment. The union then filed a grievance on her behalf alleging that the employer had breached the collective agreement and relevant legislation by failing to provide a workplace free from discrimination and harassment. A step 1 grievance meeting was held, but the matter was not resolved.
Given the content of the grievance, the employer retained an external lawyer to conduct an investigation under its Respectful Workplace policy. Further steps in the grievance process were held in abeyance pending receipt of the investigator’s report. The report was delivered, and the investigator found that there was no evidence to support the complainant’s allegations of harassment and discrimination. The investigator went further and said that the complainant had engaged in numerous incidents of insubordination and disrespectful communications with supervisors, and encouraged a disciplinary response by the employer.
The complainant took issue with the report, and claimed that it was defamatory and inaccurate. The union asked her to provide a detailed response to the report, a copy of which she had been provided. After proceeding to the next and final step of the grievance procedure, the complainant was advised that the union had entered into a settlement agreement with the employer, and her grievance would not proceed to arbitration.
The settlement contained terms that included the redaction of specific provisions of the investigation report, that the report would not form the basis of discipline of the complainant, and the complainant would receive some back pay, among other things. The union explained to the complainant that it had reviewed the file and that it considered all the information contained in it, the case law, as well as advice from its national representative. It indicated that “taking all these things together we reached our decision and believe we did the best we could do to represent you”. The complainant was not satisfied and filed an application that her union had breached its duty of fair representation.
The Board re-affirmed the principle that a union must not act in a manner that is “arbitrary, discriminatory or in bad faith” when representing employees in a bargaining unit, and that as long as the union met this standard, it is within the union’s exclusive bargaining agency to make decisions regarding the administration of the collective agreement, which include decisions regarding settling grievances.
“CUPE’s actions in this case, are a good example of how a union ought to respond to a member’s concerns over the results of a workplace investigation.”
The Board quoted one of its earlier decisions, James W.D. Judd, BCLRB No. B63/2003, 91 C.L.R.B.R. (2d) 33, (Judd) where it stated that:
When a union decides not to proceed with a grievance because of relevant workplace considerations – for instance, its interpretation of the collective agreement, the effect on other employees or because in its assessment the grievance does not have sufficient merit – it is doing its job of representing employees. The particular employee whose grievance was dropped may feel the union is not “representing” him or her. But deciding not to proceed with a grievance based on these kinds of factors is an essential part of the union’s job of representing the employee as a whole. When a union acts based on considerations that are relevant to the workplace, or to its job of representing employees, it is free to decide what is the best course of action and such a decision will not amount to a violation of section 12.
In reviewing CUPE’s specific actions vis-à-vis the complainant, the Board concluded that the union had conducted an adequate investigation and took reasonable measures to ensure that it was aware of the relevant information. This included reviewing the complainant’s chronology. The union also met with the complainant several times regarding her allegations. Therefore, the union was aware of the material facts.
Moreover, the Board stated that the union had made a reasoned decision to enter into a settlement and not proceed to arbitration. It had concluded that it would be difficult to establish that harassment and discrimination had occurred as the complainant alleged. Finally, the union did not have a blatant or reckless disregard for the interests of the complainant, nor did it engage in any bad faith towards the complainant.
What is the significance of this case?
- This case is primarily useful for unions. It affirms well established principles regarding the duty of fair representation, and in particular, how difficult it is for an individual union member to successfully challenge a union’s decision not to arbitrate, or enter into a settlement.
- CUPE’s actions in this case are a good example of how a union ought to respond to a member’s concerns over the results of a workplace investigation. It asked its member to set out the sections of the report with which she disagreed, and it advocated on her behalf in terms of having portions of the report redacted, and in ensuring that the member was not disciplined.
- The report, which was prepared by an external third party, was useful to both the employer and the union. Both parties ended up avoiding an arbitration on an allegation of harassment and discrimination that appeared to have no evidentiary basis.
“This case is primarily useful for unions. It affirms well established principles regarding the duty of fair representation, and in particular, how difficult it is for an individual union member to successfully challenge a union’s decision not to arbitrate, or enter into a settlement.”