Even the Supreme Court of Canada could not be moved to support union members as against their union’s decision not to grieve.
The unionized workers were members of a CUPE Local and employed as personal care workers at a nursing home. The union was in a legal strike position, but had decided not to go out in order to show solidarity with a province-wide approach to collective bargaining.
But one of the shifts at the nursing home went out on strike, breaking ranks with the province-wide bargaining effort and acting contrary to membership votes in their Local. The Applicants in the MacPhee, Hill, MacLean case, among others, were blamed by some for instigating the walk-out.
The strike ended about a week later when the provincial bargaining effort succeeded. Many members of the Local were upset because they had lost one week’s pay when they were on strike and they directed their anger at those who had caused the walk-out that they had been obliged to join.
The Applicants, McPhee and Hill, claimed that from the time they joined the picket line they were subjected to intimidation by members of the Local and its executive, falsely accused of initiating the strike, threatened with punishment and verbally harassed.
McPhee and Hill did not return to work and were eventually dismissed. They grieved their dismissals but their union, after a long delay, and after obtaining legal advice, decided not to take their grievances to arbitration.
No formal disciplinary action with respect to the strike or anything else was taken against the Applicants by the Local or National Union. But in 2001, the Applicants commenced an action against both of them for harassment and intimidation, intentional infliction of nervous shock, negligent infliction of nervous shock (psychiatric damage) and breach of the common law duty of fair representation. The trial judge dismissed the action and the applicant workers were not successful in garnering any sympathy either in the Nova Scotia Court of Appeal or the Supreme Court of Canada.
It certainly seems that from the judicial perspective, as between the competing interests, the collective interests trumped the protection of the individual rights. But at the trial level, the Court was very mindful that unionized employees whose individual employment rights are adversely affected have no direct remedy against the employer nor an automatic right to have their complaint arbitrated and that, accordingly, a union cannot act arbitrarily or capriciously in deciding not to pursue a grievance. Mr. Justice Warner reviewed the principles respecting a union’s duty of representation with regards to a grievance:
The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
When the decision to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and its consequences for the employee on the one hand and the legitimate interests of the union on the other.
The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
The representation by the union throughout must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.