Arbitrary, discriminatory or bad faith union representation

Arbitrary

Arbitrary means the union makes a decision for no good reason. Generally, the union must:

• take reasonable steps to make sure it knows the relevant information
  • reasonable steps will be different in each situation
  • what counts as relevant information will depend on the circumstances of the situation. A union and a grievor may disagree about whether certain information is relevant. Disagreeing with the union's assessment of 'relevant' doesn't necessarily mean the union's representation was arbitrary.
• use the relevant information to make a decision that is thought out and logical (reasoned)
• not represent you with blatant or reckless disregard for your interests
  • this means they can’t be completely thoughtless or careless in coming to a decision

Discriminatory

Discriminatory means the union represents you differently than another co-worker for no good reason. This can include favoritism or discrimination under the Human Rights Code. Learn what other organizations can help you if you are experiencing discrimination.

Bad faith

Bad faith is when the union acts with improper purpose or improper motivation. For example, a union that's acted out of personal hostility or because of a reason not connected with the workplace issue may be representing you in bad faith.

Just because the union:

• agrees with the employer,
• doesn’t file a grievance,
• doesn’t take your grievance to arbitration, or
• settles or withdraws a grievance without telling you,

doesn’t mean it is representing you contrary to Section 12.

Many people think the union must do what they want it to or to act in their best interests and, if the union doesn’t, that it has contravened Section 12. That isn’t what the law requires.

Here are some examples of common mistakes about the union’s representation:

 “The union must always be on my side”

There are times when your union may agree with your employer or it may disagree with you. This may make you feel like your union isn’t on your side. However, the union has a right to disagree with you and agree with your employer.

 “The union must take my grievance all the way to arbitration, if necessary”

The union owns the grievance. This means the union has the right to make decisions about possible grievances. It decides, not the members, if a grievance should be filed. If the union files a grievance, it decides what happens with that grievance. This includes deciding if a grievance should go to arbitration, be withdrawn, or be settled.

 “The union must deal with the grievance how I tell them to”

Unions makes decisions based on different interests. These include a member’s views on the importance or merit of a grievance.  A union has the right to rely on its expertise and judgment when managing grievances. The union may resolve the grievance in a way you don’t like. The union has the right to do this because it owns the grievance. It must take many factors into account, not just your specific situation.

 “The union must keep me updated on the grievance”

The union may not return all your calls or keep you updated on the grievance in the way you want. Poor communication is frustrating, but it doesn’t necessarily mean your union contravened Section 12.

 “The union must negotiate the same terms of employment for all types of employees”

When the union negotiates the collective agreement, it has to make critical choices and trade-offs. This may affect members unequally. For example, the union may have to abandon demands that some or all of its members want it to make. These kinds of trade-offs form the essence of collective bargaining. This is why the Board gives unions wide latitude with respect to:

• how negotiations are conducted and
• what provisions are or are not included in the collective agreement.

To show the union negotiated a collective agreement in a way that breaches Section 12, the employee has to show that the union made its bargaining decisions in a way that is arbitrary, discriminatory, or in bad faith.

Filing an application with the Board isn’t an appeal of a union’s decision. The Board won’t decide if the union’s decision or actions were right or wrong.

Filing an application with the Board isn’t a way to address the issue with your employer. The Board will only consider the union’s representation of you. It won’t look at if what the employer did was right or wrong. 

The Board doesn’t do investigations to see if the union’s representation was arbitrary, discriminatory, or in bad faith. It will make its decision based on the:

• information you file with your application and
• submissions of the union and employer (if the Board requests them).  

The Board can’t give you advice on your situation or tell you what to do. The Board can’t tell you if you should or shouldn’t file an application against the union. The Board can only make a decision on your case after you file an application. 

Before you file an application with the Board, we strongly recommended that you read all the information the Board has on union representation. You should also read the Judd decision.

 James W.D. Judd, BCLRB No. 63/2003 (235 KB) is a leading decision on Section 12. It represents the law and policy of the Code. This means, the Board will use the framework and legal principles in Judd when deciding your application.

Before you file an application with the Board, you must complete all internal appeal options you have with the union. This may include:

• raising concerns to someone higher up at the union office
• filing an appeal with your union’s grievance appeal committee (if they have one)
• following any other appeals processes your union may have

You should also look at your union’s constitution and bylaws to see if there is an internal appeal process. The Board can’t give you advice on your situation or tell you what to do. The Board can only make a decision on your case after you file an application.  

You must give the union every opportunity to represent you. You can’t refuse to cooperate with the union and then claim to have exhausted your internal options. If you didn’t exhaust all internal union appeals, you need to explain why. Generally, saying you don’t think it would make a difference isn’t sufficient. The Board may decide not to deal with your application until you have exhausted your internal union appeal processes.

Generally, your application should be filed within weeks or a few months of exhausting all the options with the union. If your application is filed more than three months after the union’s final decision or action, you need to tell the Board why there was a delay in filing it. If the reason for delay isn’t compelling, your application may be dismissed. If your application is filed a year or more after the incident occurred, the application will most likely be dismissed.

Delay in filing a complaint with the Board because you are trying to take action against your union with another organization isn’t a compelling reason for delay.

The Board won’t accept an application if:

• a grievance is still in process
• you are waiting to hear back from an internal appeal
• you haven’t exhausted all the options with the union
• it wasn’t filed in a reasonable time frame

The Board doesn’t have the authority to do investigations. The Board won’t sit down with you so you can explain your case. You must provide enough information in your application to show that the union represented you in a way that is arbitrary, discriminatory, and/or in bad faith.

Here are some tips:

• Answer all the questions in the application form. If you don’t have enough space to answer a question on the form, you can include a separate page to write out your answer. Make sure you tell us what question you are answering.
• Often, it is best to describe what happened chronologically. Start with when the issue first came up and explain what happened up until your decision to file your application.
• Write as clearly and simply as possible.  
• If there is a delay in filing the application, provide an explanation for the delay.  
• Number all the pages of your application and your documents.  
• Make sure that your application and your documents are legible.

You need to tell the Board what outcome you want, if your application is successful. This is known as the remedy. Remember, this isn’t about the employer, so the Board won’t allow a grievance or reinstate you. The Board only has the authority to order your union to take action. Common remedies include:

• investigating the workplace incident
• filing a grievance
• getting a union lawyer to decide if a grievance is appropriate for arbitration

The Board may not give you the exact remedy you ask for, but it will take your remedy request into account when making a decision. The Board’s orders are legally binding, so the union must follow them.

Include any supporting documentation you have, for example:  

• a copy of the grievance, if one was filed (and if you have a copy)
• copies of letters or emails the union sent you saying they won’t file the grievance
• copies of letters or emails between you and the union regarding any internal appeals you tried
• any other supporting documentation you feel supports your allegation that the union represented you in a way that is arbitrary, discriminatory, and/or in bad faith

When you include supporting documents, we strongly suggest you give each document a number or letter. Note the document number or letter in the listing in question 9 of the form.

You need to explain to the Board how your supporting document shows the union represented you in a way that is arbitrary, discriminatory, and/or in bad faith. Adding a number or letter to the document makes it easier for you to refer to it in your application, for example, “As document A shows…”

If you include emails, include the entire email conversation as one thread, if possible. If you include a document that you didn’t give to the union, you need to tell the Board why you didn’t give a copy to them. If you can’t get a copy of a document, explain how that document would support your allegations.

If the Board accepts your application, you will need to provide a copy to your union and employer. This means if you are including sensitive information, such as medical information, it will be seen by the union and employer. The Board may also publish a decision about your application on its website.

Information in your application may be made publicly available in a Board decision. More information on how the Board uses your information can be found in our privacy policy.

The Board is a neutral, independent decision-maker. It operates like a court so the Board can’t:

• tell you if you have a case under Section 12 or not
• give you legal or other advice
• help you prepare your application

Filing an application with the Board is taking legal action against your union. You may wish to hire a lawyer to help you. A lawyer can help you prepare your complaint in an organized, persuasive way.  However, the Board doesn’t require that you have a lawyer to file an application.

Access Pro Bono may be able to provide free legal advice or a lawyer referral. However, they may have eligibility requirements to access their services.

The Canadian Bar Association has a Find-a-Lawyer search tool, which may help you find a lawyer. 

Amici Curiae (AC) Friends of Court may be able to help prepare your application.

You may also be able to get help from a friend or community/not-for-profit organization.

To make an application alleging your union has represented you in a way that is arbitrary, discriminatory, or in bad faith you must: 

1. Complete Form 12: Arbitrary, Discriminatory, or Bad Faith representation

FORM 12: ARBITRARY, DISCRIMINATORY, OR BAD FAITH REPRESENTATION

2. Submit the form by email, mail, or courier
   1. Include all the information and supporting documentation you want the Board to consider. 
3. Arrange to pay the $100 filing fee

Filing by email? The Board only accepts supporting information in PDF, MP3, or MP4 format. Supporting information cannot be provided by a file-share link at this time.

Keep a copy of your application. Once the Board accepts your application as complete, you will need to provide a copy to the union and the employer. The Board will tell you when to do this.

Once your application is submitted to the Board, it will be reviewed to see if it is complete enough to be accepted. If your application is accepted, the Board will direct you to provide a copy to the union and employer.

Then, a Vice-Chair of the Board will decide if the information in your application could amount to a violation of Section 12. If the Vice-Chair decides it doesn’t, your application will be dismissed.

If the Vice-Chair believes your application might show a violation of the Code, they will ask the union and employer for a response. You will be able to respond to the things the union and/or employer say.

After that, the Vice-Chair will decide the case. The Vice-Chair may decide that an oral hearing is needed before deciding the case, but this is rare. The Vice-Chair will issue a decision in writing.

Information in your application may be made publicly available in a Board decision. More information on how the Board uses your information can be found in our privacy policy.

Learn more about happens when you make a Section 12 application.

Depending on the nature of your issue, you may be able to deal with it though another means. If your issue is around the behavior of someone working at the union, you may want to review your union’s constitution and/or bylaws to see if it has an internal complaint process.

If your issue relates to a work-place injury, your union may not be legally obligated to help you. You may wish to make an application with WorkSafeBC. You can also appeal WorkSafeBC decisions to the Workers’ Compensation Appeal Tribunal (WCAT).

The B.C. Human Rights Tribunal hears cases where people feel their human rights have been violated. The Human Rights Code forbids discrimination based on certain grounds. If you feel the union’s representation of you was discriminatory based on one of those grounds, you may be able to file a complaint with the B.C. Human Rights Clinic.

If you decide to file a complaint about your union’s representation under the Human Rights Code, you can also file an application with the Board at the same time. However, the Board may decide to wait until the complaint with the Human Rights Tribunal is heard before it decides your case.