Complainant’s Conduct Considered in rejecting DFR Complaint

Frisch v the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 488, 2025 ALRB 50 (CanLII), is a recent Alberta Labour Relations Board (the “Board”) decision surrounding a Duty of Fair Representation complaint pursuant to Section 153(1) of the Labour Relations Code (the “Code”).

Facts

The following are the pertinent facts of the case:

• The Complainant was employed with PCL Industrial Constructors Inc., and was a member of the United Association of the Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States of Canada, Local Union No. 488 (the “Union”).
• The Complainant’s employment was terminated by PCL.
• He asked the Union on August 3, 2023 to file a grievance due to the termination, an alleged privacy breach, and the alleged theft of the Complainants safety gear (the “Grievance”).
• The Union’s Business Agent (the “Business Agent”) and the Complainant Employer’s Labour Relations Manager (the “Manager”) discussed the Grievance.
• The Manager advised the Business Agent that the Complainant had been terminated for making homophobic comments and having a negative attitude in the workplace. The Manager provided the Business Agent with nine (9) witness statements.
• On August 18, 2023, the Business Agent and Complainant had a conversation whereby the Complainant was advised that his Grievance would likely not succeed. The Business Agent also offered to show the Complainant the witness statements, of which he declined.
• On January 18, 2024, the Complainant filed a Duty of Fair Representation complaint, alleging that the Union had acted arbitrarily (the “DFR Complaint”).
• The Union sought summary dismissal on the grounds that the Complaint was untimely and without merit.

Analysis / Conclusion

When the Board receives a DFR complaint, they are to determine whether the union represented a union member/employee fairly.

The Board noted that a union’s duty of fair representation is summarized in Reid v. United Steelworkers of America Local Union No. 7226, [2000] Alta. L.R.B.R. LD-064 (“Reid”) (at para 3) as follows:

• The Union need not take every grievance to arbitration. It need not take a grievance to arbitration just because the grievor asks the Union to do so. The Union is entitled to assess the merits of the grievance, the chances of success at arbitration, the costs of the arbitration process and other factors when deciding whether or not to advance a grievance to arbitration.

• The Board focuses its examination on the Union’s conduct and considerations while the Union represented the employee and in making its decision, rather than on the merits of the grievance, which is the question an arbitrator would answer.

• The Union is entitled to make a wrong decision, as long as it fairly and reasonably investigates the grievance and comes to an informed decision.

• The Union must give the employee a fair opportunity to present the employee’s own case to the Union and to provide input on the results of the Union’s investigation.

• The Union should communicate fairly with the employee about all aspects of its representation. Communication with the employee can play a significant role in representation, but the Union need not take direction from the employee or answer all questions to the employee’s satisfaction, nor must it act within the employee’s time limits.
• A Union does not breach its duty of fair representation just because it reaches a conclusion with which the employee does not agree.

The Board cited its Bulletin #18 (Duty of Fair Representation) as another source that provides a useful outline and includes the following:

Unions Must Avoid Ill Will

Decisions must not be motivated by ill will. Union officers must not let personal feelings influence whether or how to pursue a grievance. Decisions influenced by personal hostility, revenge or dishonesty may violate the Code.

…

Unions Must Not Discriminate

A union must fairly represent all employees in a bargaining unit. This means a union must not discriminate on the basis of union membership and factors such as, race, religion, sex or age should not influence the way a union handles a grievance. Each member should receive individual treatment. Favouritism and prejudice should play no part in grievance handling. Unions should consider only relevant and lawful matters when deciding whether or not to file or continue grievances.

…

Unions Must Not be Arbitrary

In deciding whether or not to pursue a grievance, a union must avoid arbitrary, capricious, discriminatory or wrongful conduct. It must not act in bad faith. It is arbitrary to give only superficial attention to the facts or matters in issue. It is arbitrary to decide without concern for the employee’s needs and interests.

…

It is arbitrary not to investigate.

A union should thoroughly investigate all of the facts and evaluate the probable outcome of arbitration before deciding to abandon or settle a grievance. This includes a review of the merits of the grievance and of arbitration decisions for similar grievances.

…

The Board will uphold the union’s decision if it concludes that the union:

• investigated the grievance and obtained full details of the case, including the employee’s side of the story;

 

• put its mind to the merits of the claim; and

 

• made a reasoned judgment about the disposition of the grievance.

A union can fulfill its duty by taking a reasonable view of the grievance. This means it must consider all of the facts surrounding the grievance. It must weigh the conflicting interests of the union and the employee. It should then make a thoughtful judgment about the grievance.

The Board concluded that the DFR Complaint was without merit, reasoning that the Union had done the following prior to its decision to withdraw the Grievance:

• Investigated the Grievance;
• Obtained witness statements related to the Complainant’s termination; and
• Spoke with the Complainant before withdrawing the Grievance.

The Board also stated that in the Complainant refusing to review the witness statements, he failed to co-operate, protect his own interest and minimize his own losses, contrary to the DFR framework. 

Timeliness – 90 Days

Pursuant to section 16(2) of the Code, a complaint must be filed 90 days from when the complainant knew or ought to have known of the action or circumstances giving rise to the complaint.

For the rules on timeliness of a DFR Complaint, the Board cited Toppin v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488, [2006] Alta. L.R.B.R. 31 (“Toppin”).  Toppin discussed when a complaint “knew or ought to have known” of the circumstances giving rise to the complaint, as follows:

1. The 90-day time limit is a legislative recognition of the need for expedition in labour relations matters.

2. “Labour relations prejudice” is presumed to exist for all complaints filed later than the 90-day limit.

3. Late complaints should be dismissed unless countervailing considerations exist.

4. The longer the delay, the stronger must be the countervailing considerations before the complaint will be allowed to proceed.  There is no separate category of “extreme” delay.

5. Without closing the categories of countervailing considerations that are relevant, the Board will consider the following questions:
   
   
   1. Who is seeking relief against the time limit?  A sophisticated or unsophisticated applicant?
      
      
   2. Why did the delay occur?  Are there extenuating circumstances?  Aggravating circumstances?
      
      
   3. Has the delay caused actual litigation prejudice or labour relations prejudice to another party?
      
      
   4. And, in evenly balanced cases, what is the importance of the rights asserted?  And what is the apparent strength of the complaint?

The Board noted that in circumstances where the complainant is an unsophisticated litigant, the Board will extend the deadline to file a DFR complaint to two (2) months after the 90-day time limit, as was held in Toppin.

The Board determined that the Complainant knew or ought to have known as of August 18, 2023, that the Union was not going to proceed forward with his grievance.  Therefore, the Complaint was not filed in a timely manner, despite recognizing that the Complainant was an unsophisticated litigant, and therefore, had an extended period of time to file his complaint, however, failed to do so.

My Take

What I found interesting about this decision was that the Board took into account the Complainant’s actions (or inactions for that matter) in determining whether the Union breached its duty of fair representation.

It is often the case that the Board will focus on the union’s conduct, as this is the subject matter of DFR complaints. However, this case serves as a healthy reminder that under the DFR framework, a complainant’s conduct can also be taken into account in determining whether a union treated its member fairly.

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