Smithson: Unionists should think twice about retaining a lawyer

Your union is your legal representative in your employment relationship.

Union members who are unhappy with the representation they’re being provided by their union will sometimes seek outside legal advice.

In doing so, they should first understand the implications of taking that step and the limited role an outside lawyer may have.

Your union is your legal representative in your employment relationship.

In all legal senses, it speaks on your behalf and has ultimate decision-making authority regarding matters of employment arising out of the collective agreement.

The union’s role, and authority, is governed in B.C. by the Labour Relations Code or, in the federal context, the Canada Labour Code.

The union is, in effect, your lawyer in relation to your employment.

However, your union must adhere to certain rules in representing you. It has been stated in case law that a union is prohibited under the “duty of fair representation” from engaging in any of three forms of misconduct in representing employees.

First, the union must not be motivated by bad faith in the sense of personal hostility, political revenge or dishonesty.

Next, the union must not discriminate by treating different employees unequally whether on account of such factors as race or sex, or through simple personal favouritism.

Finally, a union must not act arbitrarily, disregarding the interests of an individual employee in a perfunctory manner.

It must take a reasonable view of the problem and reach a thoughtful judgment after considering the various relevant and conflicting considerations.

However, the provincial and federal labour boards give unions very wide latitude to manage their internal affairs.

In my own experience, only a tiny percentage of complaints against unions by unhappy members end up being successful.

Some things a union is free to do on a member’s behalf – with or without consent—include deciding not to file a grievance or not to advance a grievance to arbitration, settling a grievance, pursuing a grievance even though another member may be adversely affected if the grievance is successful, and agreeing with the employer to modify the provisions of a collective agreement.

It is critical for members to understand that a union doesn’t always have to make the right decision in relation to an employee’s interests.

Unions are free to make a wrong decision as long as they have gone through a proper process of arriving at that decision—it’s not usually the decision that will be scrutinized, it’s the union’s process of arriving at it.

A union member is, of course, generally free to seek outside (independent) legal advice if he or she so chooses.

However, this is a cost which will be borne entirely by that person (above and beyond payment of union dues).

Your union may not look kindly upon your having obtained independent legal advice, and they almost certainly will not welcome the involvement of an outside party.

So, if you do hire a lawyer you should consider keeping that fact to yourself at least initially.

There may be very little that an outside lawyer can do to affect your situation.

While he or she can provide guidance and may be able to make some progress in advancing your cause with your union, your own lawyer has no legal “standing” in the employment relationship and so may have limited impact.

Ultimately, if you are dissatisfied with the representation you have been provided by your union, your remedy is to file a complaint with the provincial or federal labour relations board.  This is a complaint against your union, not against your employer.

Although the dispute about which you are unhappy may have arisen in the context of a grievance against your employer, the labour board will be looking at whether your union handled that matter in accordance with its duties towards you as a member.

It will not normally be adjudicating your grievance.

While there may be good reasons for you to seek outside legal counsel in relation to your union’s representation of you as its member, there are very good reasons to first exhaust every opportunity to resolve that dispute directly with your union representatives.

Hiring an outside lawyer costs a substantial amount of money, doing so may exacerbate the issues you are having with your union representatives, and (statistically) it is very unlikely a complaint to a labour board will be successful.

So, give serious thought to your situation before hiring a lawyer of your own. You may end up being glad you did.


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