Abay v Retail, Health Care and Service Employees Union, CLAC Local 301, 2022 CanLII 23420 (AB LRB) (Nekolaichuk) is a new Alberta Labour Relations Board decision where a complainant established a breach of the duty of fair representation (“DFR”) by her union, CLAC Local 301.
This case is being summarized here because it is relatively rare for a DFR complaint against a union to succeed. I found the case to be interesting for several reasons, including the ALRB’s guidance on when a union is required to file a grievance on behalf of a member.
Facts
Below are the pertinent facts found by the Alberta Labour Relations Board:
- The complainant worked as a casual dishwashing employee of Travois Holdings, a long-term care home provider in Alberta
- The complainant was a member of CLAC, Local 301 union
- The complainant’s second language is English, and she has some difficulty with English. One of the policies she was shown around the time of hiring stated that communication in English was required
- The complainant notified her employer that she was pregnant in November, 2019
- The employer notified its staff in December that the kitchen operations were being restructured sometime after that, and she was advised that she would be helping with meals as well as dishwashing
- A few weeks later, a supervisor advised her that she needed to “look for another job” because of a “language barrier”
- The complainant asked human resources if she could continue working 2 – 3 more months, and HR said she could work evening shifts
- In February, the complainant was called into a meeting with HR. Her employment was terminated because of a language barrier. They argued, and the complainant eventually left the meeting and took the proposed release with her. The employer offered 2 weeks’ severance
- The complainant did not want to take the offer. She advised CLAC (the union) of this, noting several reasons including that there was no cause for termination and she was terminated only after advising of her pregnancy
- The CLAC representative advised the complainant to sign the release and take the offer, or take ESL classes if she wanted to return to work
- The complainant did not actually receive a termination letter until March, which stated that her termination date was February 7, and alleged that the employer had previously asked the complainant to take ESL courses. The complainant told the union this was not true
- The union advised the complainant that it was not sure how it could be of further help
Analysis / Conclusion
The ALRB noted that unions have significant discretion in how they handle the concerns of their members, but they must act with integrity, competence, without serious negligence or hostility, and must not make decisions that are arbitrary, capricious, discriminatory or wrongful.
The ALRB found that CLAC’s handling of the complainant’s termination was arbitrary for two reasons: (1) because they did not give her a reasonable opportunity to respond to the employer’s allegations that they had spoken to her several times about ESL, and (2) because they did not consider whether the employer actually had just cause for termination of employment. As a result, the union had breached its DFR to the complainant.
Regarding the need to provide a reasonable opportunity to respond to the employer’s obligations, the ALRB noted as follows:
[59] As indicated in Reid, a union investigating a potential breach of a collective agreement must give the employee an opportunity to provide input on the union’s investigation and to present the employee’s own case. In Dezentje et al. v IBEW, Local 424 et al., [1999] Alta. L.R.B.R. 267 at 400-401 (rev’d in 2000 ABQB 267 then restored in 2002 ABCA 249) (“Dezentje”), a case cited in Complainant v Union of Calgary Co-Operative Employees, [2017] Alta. L.R.B.R. LD-060, which the Union relied on, the Board stated: “Failing to get the grievor’s side of the case or accepting the assertions of management without offering any meaningful opportunity to reply has frequently been found to violate the duty.”
The ALRB noted as follows with respect to the union’s obligation to assess if there was just cause for termination:
[65] The second manner in which the Union’s decision not to file a grievance was arbitrary is that the Union did not put its mind to whether the Employer met the legal standard for establishing just cause to terminate Ms. Abay. This consideration is independent of whether the Union provided Ms. Abay a meaningful opportunity to respond to the Employer’s allegations that it spoke to her on multiple occasions about the language requirement.
Perhaps the most interesting part of the case was the ALRB’s direction that a union is in some cases required to file a grievance where it is aware that the grievor disputes an outcome, even if the grievor has not explicitly requested that a grievance be filed. The ALRB noted as follows:
[70] The Union also argued Ms. Abay prevented a grievance from being filed by her own actions because she did not notify Ms. Mans of her concerns within 5 days of her termination. The Board does not accept that argument in this case because the Union was clearly aware of Ms. Abay’s concerns immediately upon termination. […]
[…]
[72] In this matter, although Ms. Abay did not state expressly that she wanted to file a grievance, the Union steward’s knowledge of Ms. Abay’s reaction to the termination, as described above, was sufficient to reasonably conclude that a grievance was a plausible option.
My Take
The outcome of this case will seem obvious to many who read it, given the facts. However, it is very hard to establish a breach of the Duty of Fair Representation, and many cases which seem obvious end up failing.
Here is why it is so difficult to establish a breach of the DFR, in a nutshell:
- Unions are presumed to have the interests of the membership at heart in a general sense
- Unions have finite resources, and need to have discretion on which matters to take forward
- If the ALRB overturned union decisions every time a member was dissatisfied with them, unions would be very significantly hamstrung
There are also good reasons to hold unions to account for poor representation. One major reason is the differences in options for legal representation for employees in the non-unionized workplace versus the unionized workplace:
- In the non-unionized workplace, employees can sue their employers directly for a variety of things. They have some individual control over what they pursue
- In a unionized workplace, the employees often have no choice but to use the union as their legal representation and accept the unions’ decisions. They cannot sue their employers directly except in narrow circumstances. In many cases the only hope a unionized employee has for a voice and for justice is their union. If the union will not help or does a poor job, the employee is often left without any options except to file a DFR.
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