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My Union Won’t Help Me: What Are My Options?

Richard B. Johnson

Co-Founder + Partner
November 16, 2021

Each fall we celebrate Labour Day, a statutory holiday with its historical roots in the workers’ rights movement. Unions helped to obtain significant protections for workers, and continue to play an essential role in protecting worker rights — many of which are now taken for granted. 

No system is perfect, and we regularly receive questions from employees who are frustrated with their union’s action (or inaction) in relation to their individual employment situation.

This article will provide an overview of your options if you are a union member who is having workplace issues.

The Trade-Off: Collective Bargaining vs Individual Rights

Employees are often surprised to learn that if you are a union member, you cannot sue your employer. For example, if you are terminated with cause and believe that it is unfair, you cannot file a lawsuit for unjust dismissal. You must go to your union with your concerns, and the union may file a grievance on your behalf.

The inability for employees to directly sue or bargain with their employer on workplace issues can be frustrating, but it is because your union is the exclusive bargaining agent for all employees. 

As the sole bargaining representative, the union advocates in the interests of all employees. In most circumstances you are not able to “opt-out” of that bargaining agreement, or advocate as an individual.

In practice, that means a union will sometimes act in a way that does not align with your individual interests, but is in the interests of the majority of its members.

While you are not able to file a lawsuit against your employer, you are still able to access processes relating to human rights and occupational health and safety issues. In some cases, your union may assist you with those processes, or you may be able to obtain independent legal representation. 

Duty of Fair Representation

To quote a cliché, with great power, comes great responsibility. In order to ensure the union’s collective bargaining power is exercised reasonably, unions have a statutory and common law duty of good faith when representing their members. 

If you believe your union has represented you unfairly, you are able to file a complaint with the appropriate labour relations board on that basis. These are referred to as “duty of fair representation” or “DFR” complaints. 

Simply believing a decision is unfair is not a legitimate basis for a DFR complaint; instead, you must prove that the union has acted in a way that is arbitrary, discriminatory, or in bad faith

  • Arbitrary means the Union has made a decision without any reasonable basis, or has been completely reckless or careless in coming to its decision. For example, if a Union reaches a decision without ever giving you the opportunity to present your view, that may be “arbitrary.”

  • Discriminatory means the Union has represented you differently than other employees, without a legitimate reason. It can include discrimination as meant under human rights legislation or favoritism. For example, if every male employee’s grievance is moved forward, but the sole female employee’s identical grievance is not, that may be discriminatory. 

  • Bad faith means the Union has acted for improper purposes. For example, if a Union makes a decision based on the Union President’s personal grudge against an employee, that would be acting in bad faith.

Before filing your complaint, you are expected to exhaust any internal appeal processes in the Union. It is important that a DFR complaint be filed promptly once you believe the union is acting improperly, as the timeline for making a complaint is short (in BC, it is generally 90 days from the union’s final decision).

Once you file a complaint, the focus of the labour board will be on the Union’s conduct as your representative, not on the employer’s conduct. The labour board will not review whether the Union’s decision was right or wrong, but whether the Union breached its duty of fair representation. It is important to remember that a DFR complaint is not an appeal of the Union’s decision, it is a complaint about how the Union represented you.

Unions have significant discretion when making decisions, and as a result, DFR complaints are rarely successful. However, if you believe your union has acted unfairly, it is the appropriate forum for your complaint (since you are not able to sue your union). 

We encourage employees to seek legal advice if they believe their union may be acting in a way that is arbitrary, discriminatory, or in bad faith.