What duty does a union have to fight for a worker?

B.C. janitor was fired after allegedly exposing himself to female employee, union sought legal opinion and dropped grievance after being told it would likely fail
|employmentlawtoday.com

What duty does a union have to fairly represent a fired worker? That question was recently put before the British Columbia Supreme Court in a case involving a school janitor who allegedly exposed himself to a female employee.

Brad Larson was the caretaker at a school in Coquitlam, B.C. In August 2001 he was accused of making inappropriate sexual comments and gestures, including sitting unclothed in an empty classroom in the presence of a female employee of the local school board.

No-one else was present and Larson denied the allegations. His employment was terminated and his union, Local 561 of the Canadian Union of Public Employees, filed a grievance.

Union sought legal advice

The union sought legal advice from a solicitor who produced a report that predicted the grievance would fail. There were witnesses who provided corroboration with the female employee’s version of events, and it didn’t make sense she would fabricate the serious allegations against Larson. The grievance was therefore “highly unlikely to succeed,” the report said.

Based on that report the union withdrew the grievance.

Larson filed a complaint against his union. He argued it had not represented him adequately – he said the report did not consider his unblemished seven-year record of employment and how that might affect the decision to dismiss him.

CUPE breached its duty of fair representation

B.C.’s Labour Relations Board agreed with Larson. Where termination of a long-serving employee is an issue, a union’s conduct will be scrutinized closely, it said. In this case CUPE had breached its duty of fair representation “by failing to consider all the relevant factors when deciding not to take Larson’s grievance to arbitration.”

Larson’s lengthy discipline-free record was one such factor, whereas the legal opinion obtained by CUPE focused exclusively on whose version of events the arbitrator was likely to believe.

The British Columbia Supreme Court agreed with the board. Though it pointed out there was no evidence the union had any bad faith or ill will towards Larson and past rulings have established that a union can rely heavily on a legal opinion — even one that was mistaken or flawed.

Legal opinions valuable, but not the final say

But in this case the union’s duty of fair representation required a more thorough approach. The union had in effect passed the question on whether the grievance should continue entirely over to its lawyer. It may be a common practice to rely on predictive opinions in labour relations matters, but when the issue is one person’s word against another’s, such practices may violate principles of fundamental unfairness.

For example the first report referred to witness statements which supported the female employee’s version of events, when in reality the witnesses had only repeated what she had told them. The court said this was simply not corroboration — no one else had witnessed the event, they had just repeated what the woman told them about the incident.

And little emphasis was placed on why Larson would jeopardize his career by behaving in the unprecedented fashion alleged.

The court made clear it was not ruling on whose version of events was to be believed. It was ruling, however, that Larson had not been properly represented when his union accepted the first report and did not proceed with his grievance against the school board.

Arbitrator's decision upheld

The court upheld the arbitrator’s decision. In that decision, the arbitrator ordered the union to either handle Larson’s grievance or pay for the production of another legal opinion on the matter.

“The opinion will address the question of whether, considering all the various relevant and conflicting considerations, Larson’s grievance has a reasonable prospect of success,” the arbitrator said. “The author of the new legal opinion will not be bound by any of the conclusions reached by the lawyer regarding whose version of events an arbitrator is likely to prefer.”

The arbitrator said the new legal opinion will be prepared by counsel agreed to by Larson and the union.

The court said the arbitrator’s opinion “re-centres the controversy at the heart of this case: the relative credibility of two opposing versions of events.”

It said where a case comes down to that, in the absence of compelling corroborative evidence decisively tipping the scale, it is questionable whether reliance on opinions pre-empting due process will, in most cases, line up with the principles of fundamental justice.

“Here (the arbitrator) properly considered this a credibility case and recommended arbitration, so it is unnecessary to consider the matter further,” the court said. It dismissed the union’s challenge to the arbitrator’s remedy.

For more information see:

C.U.P.E., Local 561 v. British Columbia (Labour Relations Board)

, 2005 CarswellBC 2295, 2005 BCSC 1366 (B.C. S.C.)

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