CASE NO. 157/12/LRA IN THE MATTER OF: THE LABOUR
MANITOBA LABOUR BOARDSuite 500, 5th Floor - 175 Hargrave Street, Winnipeg, Manitoba, Canada R3C 3R8T 204 945-2089 F 204 945-1296www.manitoba.ca/labour/labbrdCASE NO. 157/12/LRAIN THE MATTER OF: THE LABOUR RELATIONS ACT- and IN THE MATTER OF: An Application byF.V.M.,Applicant,- and –Glass, Molders, Pottery, Plastics & Allied WorkersInternational Union,- and –Bargaining Agent/Respondent,PHILLIPS & TEMRO CO.,Employer/Respondent.BEFORE: Blair Graham, Q.C., Vice-ChairpersonB. Peto, Board MemberD. Grimaldi, Board MemberAPPEARANCES:F.V.M., ApplicantN.M., on behalf of ApplicantDavid Doyle on behalf of RespondentMilt Christiansen, Counsel for EmployerB.C., on behalf of the Employer./2
CASE NO. 157/12/LRAPage 2This Decision/Order has been edited to protect the personalinformation of individuals by removing personal identifiers.REASONS FOR DECISIONI.Introduction1.On June 7, 2012, the Applicant, who had been dismissed from his employment by theEmployer on November 19, 2010, filed an application against the Glass, Molders, Pottery,Plastics and Allied Workers International Union (the Union) seeking relief for an allegedunfair labour practice, contrary to Section 20 of The Labour Relations Act, requesting thefollowing remedy:“I want to return to my job, and compensate to all the days I have lost. Andproceed the grievance to the arbitration.” (sic)2.On July 3, 2012, following an extension of time, the Union filed its Reply, which includedan incomplete Form “A”. Among other things, the Union’s Reply stated that:“There has been no evidence put forth to support the Applicant’s claim that theUnion violated Section 20 of the Labour Relations Act. The Applicant failed toestablish a prima facie case.”3.The Union’s Reply also requested that the Board dismiss the Application.4.On July 9, 2012, the Union filed a corrected and complete Form “A”.5.On July 4, 2012, following an extension of time, the Employer, through counsel, filed itsReply.The Employer submitted that the Applicant unduly delayed in filing theApplication, and that, pursuant to subsection 30(2) of The Labour Relations Act, the Boardought to refuse to accept the Application, or that, pursuant to subsection 30(3)(c) of TheLabour Relations Act, the Board ought to decline to take further action on the Application./3
CASE NO. 157/12/LRAPage 3The Employer also denied that the Union acted contrary to Section 20, or any other sectionof The Labour Relations Act.6.On July 19, 2012, a representative for the Applicant filed correspondence with the Boardregarding the circumstances related to the Applicant’s termination.7.Section 20 of The Labour Relations Act states:Duty of fair representation20Every bargaining agent which is a party to a collectiveagreement, and every person acting on behalf of the bargaining agent,which or who, in representing the rights of any employee under thecollective agreement,(a) in the case of the dismissal of the employee,(i) acts in a manner which is arbitrary, discriminatory or inbad faith, or(ii) fails to take reasonable care to represent the interests ofthe employee; or(b) in any other case, acts in a manner which is arbitrary,discriminatory or in bad faith;commits an unfair labour practice.8.Subsections 30(1), 30(2) and 30(3)(c) of The Labour Relations Act state:Complaint alleging unfair labour practice30(1) Any employer, employee or other person, or any union oremployers' organization, who or which alleges the commission of anunfair labour practice may file a written complaint in respect thereof withthe board.Undue delay30(2) The board may refuse to accept a complaint filed undersubsection (1) where, in the opinion of the board, the complainant undulydelayed in filing the complaint after the occurrence, or the lastoccurrence, of the alleged unfair labour practice./4
CASE NO. 157/12/LRAPage 4Disposition of complaint30(3) Where the board accepts a complaint filed under subsection (1),the board may (c) at any time decline to take further action on the complaint.9.On December 3 and 4, 2012, and January 9, 2013, the Board conducted a hearing at whichthe parties appeared before the Board and presented evidence and argument.TheApplicant appeared personally, and was also represented throughout the hearing by hisbrother, N.M. The Union appeared on its own behalf, and its primary spokesperson wasDave Doyle, an International Vice-President and Executive Director of the Union inCanada. The Employer appeared represented by counsel, Milt Christiansen.II.The Background Facts10.A summary of the facts relevant to the disposition of this case is outlined below:i)The Applicant commenced working for the Employer as a welder in approximately2005. Throughout his employment with the Employer, he was a member of thebargaining unit represented by the Union. In December, 2008, he was suspendedwithout pay for three days as the result of an incident which occurred onNovember 26, 2008.ii)In September, 2009, the Applicant’s wife died.The death occurred while theApplicant was off work during a period of layoff. The Applicant had been married tohis wife for almost 30 years, and the loss of his wife affected him profoundly. As aresult of his wife’s death, the Applicant began to suffer from depression and receivedtreatment for depression from his family physician commencing in 2010 andcontinuing thereafter. According to the Applicant, he advised the Employer that hewas suffering from depression. However, it was the Employer’s position in these./5
CASE NO. 157/12/LRAPage 5proceedings that the Applicant did not inform it, at any time prior to the terminationof his employment, that he was suffering from depression.iii)The Applicant returned to work following a period of layoff in approximatelyOctober or November, 2009.iv)In 2010, the Employer noted that problems were developing with the Applicant’sattendance. The Employer wrote three letters to the Applicant in 2010, dated March10, August 3 and November 10, respectively, with respect to this unsatisfactoryattendance, pointing out on each occasion his rate of absence, compared to what theEmployer considered an acceptable rate of absence, and warning the Applicant that ifhis attendance did not improve, he would be subject to disciplinary action. OnMarch 30, 2010, the Employer issued a verbal warning for unsatisfactory workquality and not following procedures.v)On November 10, 2010, an incident occurred in the workplace. The Applicant hadreturned to work on that day following an absence. His Lead Hand criticized theApplicant for not calling in beforehand to advise the Employer that he would bereturning to work that day. The Lead Hand’s comments upset the Applicant and thetwo men exchanged argumentative words. The Applicant then went to see the ShopSteward, D.L., with respect to the matter. The Applicant carried a hammer with himto the meeting with D.L. The Applicant’s attitude and behaviour at the meeting withD.L., including his brandishing of the hammer, alarmed the other people inattendance at the meeting.vi)On November 19, 2010, the Employer provided a letter to the Applicant. The letterstated in part:“This will confirm that as a result of the incident on November 10,2010, and following a review of your employment history anddiscipline record with Phillips & Temro Industries Ltd. (the./6
CASE NO. 157/12/LRAPage 6“Company”), your employment with the Company is terminatedeffective immediately for just cause.”vii)On December 3, 2010, the Union and the Applicant filed a grievance, claiming thatthe Applicant had been unjustly dismissed and seeking the reinstatement of theApplicant, and that he be “made whole including all lost wages”.viii)On December 7, 2010, a Step 2 grievance meeting was held between the Employerand the Union at which the Employer refused to reinstate the Applicant andmaintained its position that he had been terminated from his employment for justcause. On January 10, 2011, a Step 3 grievance meeting was held between the Unionand the Employer. Mr. Doyle was in attendance at that meeting on behalf of theUnion, representing the Applicant’s interests. The Employer maintained its positionand continued to deny the grievance. As a result, on January 24, 2011, by letter fromMr. Doyle to the Employer, the Union referred the grievance to arbitration.Thereafter, dates for the arbitration hearing were set, being July 21 and 22, 2011.The arbitration was to be held in Winnipeg, Manitoba.ix)Mr. Doyle’s office is in Woodstock, Ontario. Accordingly, to present the case onbehalf of the Union and the Applicant at arbitration, Mr. Doyle travelled to Winnipegand met with the Applicant and his brother, N.M., at his hotel on July 20, 2011. Thepurpose of the July 20th meeting was to prepare for the arbitration scheduled tocommence the next day.At the preparation meeting on July 20th, there wasdiscussion about the medical issues affecting the Applicant.According toMr. Doyle’s evidence, on previous occasions he had discussed with the Applicantand N.M. the advisability of obtaining a note or report from the Applicant’s doctorconfirming that the Applicant had been suffering from depression, but was ready toreturn to work, and Mr. Doyle asked the Applicant and N.M. to obtain such notes orreports. On July 20th, they produced two brief handwritten notes, written by theApplicant’s doctor several months earlier, confirming that the Applicant was./7
CASE NO. 157/12/LRAPage 7suffering from depression. At the preparation meeting of July 20th, Mr. Doyle alsospent time talking to the Applicant, and preparing him for the types of questions hewould be asked at the arbitration hearing. The preparation meeting of July 20thproceeded quite well, and Mr. Doyle indicated to the Applicant and to N.M. that hewas quite hopeful that the Applicant’s grievance would succeed at the arbitrationhearing and that the Applicant would “get his job back”.x)On the evening of July 20th, and the morning of July 21st, Mr. Doyle’s assessment ofthe strength of the case to be presented on behalf of the Applicant changed.Mr. Doyle met with D.L. on the evening of July 20th and became concerned thatD.L.’s evidence with respect to the incident of November 10, 2010 would bedamaging to the Applicant’s position. Mr. Doyle also had conversations on theevening of July 20th, and the morning of July 21st with the lawyer for the Employer,Mr. Christiansen. As a result of those conversations, Mr. Doyle became aware of thewitnesses whom the Employer would be calling, not only with respect to the incidentof November 10, 2010, but also with respect to the Applicant’s attendance, and hisprior disciplinary record.As a result of those conversations with D.L. andMr. Christiansen, Mr. Doyle’s assessment of the Union’s case on behalf of theApplicant changed significantly. Mr. Doyle no longer thought that the Union and theApplicant would be successful at the arbitration.At some point in thoseconversations, Mr. Christiansen asked Mr. Doyle if the Applicant might consider asettlement of the grievance, whereby the Employer would make a cash payment tothe Applicant in full satisfaction of the Applicant’s claims against the Employer.Pursuant to such a settlement, the Applicant would not be reinstated to hisemployment.In addition, as a result of a late developing commitment thatMr. Christiansen had on another file, he asked Mr. Doyle if the commencement timefor the arbitration could be postponed from 9:30 a.m. to 1:00 p.m. on July 21st./8
CASE NO. 157/12/LRAxi)Page 8Mr. Doyle called N.M. on the evening of July 20th to advise him ofMr. Christiansen’s request to postpone the commencement of the hearing to1:00 p.m. on July 21st and to discuss the advisability of engaging in settlementdiscussions with the Employer. Mr. Doyle chose to call N.M. that evening ratherthan the Applicant because N.M.’s English language skills were better than theApplicant’s and because Mr. Doyle thought N.M. might be best able to explain therecent developments to his brother. The conversation between Mr. Doyle and N.M.on the evening of July 20th did not proceed smoothly.xii)N.M. was at work and was not expecting a call.He was suspicious of theEmployer’s request to postpone the hearing until 1:00 p.m. the next day, andfrustrated that the starting time was being postponed.Mr. Doyle outlined hisrecommendation that the Applicant should consider a settlement whereby he wouldreceive a cash payment and the termination of his employment would becharacterized as a resignation. N.M. testified that he was upset during the telephonecall on the evening of July 20th because he felt pressured and could not understandwhy a settlement was being suggested on the evening prior to the arbitration,particularly when Mr. Doyle had indicated in the afternoon that he thought thechances of the Applicant getting his job back through the arbitration process weregood. Mr. Doyle tried to explain that settlement discussions frequently occur shortlybefore an arbitration is scheduled to commence. He also tried to explain to N.M. thepotential advantages of a settlement, but with limited success.The telephoneconversation between Mr. Doyle and N.M. on the evening of July 20th ended on thebasis that N.M. would speak to his brother and they would consider mattersovernight.xiii)Mr. Doyle had a series of telephone discussions with N.M. on the morning ofJuly 21st. Mr. Doyle also spoke to the Applicant by telephone that morning. TheEmployer had not made any settlement proposal to the Union or the Applicant;./9
CASE NO. 157/12/LRAPage 9Mr. Christiansen had merely inquired as to whether the Applicant would be willingto consider a cash settlement. Mr. Doyle asked N.M. whether he and his brother hadconsidered the issue of settlement. N.M. again expressed his frustration and dismaythat the issue of settlement was being discussed at such a late stage. Mr. Doyle againattempted to explain that settlement discussions frequently occur at a late stage of theprocess, but also told N.M. on July 21st, that if his brother did not want to consider asettlement, he could proceed to arbitration that day. N.M. reiterated his frustrationand said that he felt that he and his brother were being unfairly pressured intoconsidering a settlement. During part of the discussions on the morning of July 21st,Mr. Doyle and N.M. discussed the potential amount of any settlement. N.M. askedwhether his brother would receive all of his “back wages” as part of any settlement(i.e. more than 7 months’ wages) and Mr. Doyle replied that he was very doubtfulthat the Employer would agree to pay such an amount, and would likely only beprepared to pay a lesser amount, such as a sum equivalent to one week of pay forevery year of service.xiv)During the discussions on the morning of July 21st, Mr. Doyle strongly recommendedthat a settlement be considered. During his testimony, he explained that he did sobecause:a)he felt that the evidence relating to the November 10, 2010 incident, andparticularly the evidence of D.L., the Shop Steward, would be damaging to theApplicant;b)he was also worried about the Applicant’s prior disciplinary record, includingan incident which had occurred a few years previously in which the police hadbeen called to the Employer’s premises as a result of a serious threat allegedlymade by the Applicant against a co-worker.(The evidence in theseproceedings was not clear as to whether that incident was the incident which./10
CASE NO. 157/12/LRAPage 10had occurred on November 26, 2008, for which the Applicant had received athree days suspension, or a separate incident); andc)he had become aware of Mr. Christiansen’s intention to call other co-workersof the Applicant who would likely be expressing fear and concern about theApplicant’s behaviour in the workplace.N.M. testified that Mr. Doyle never fully explained his reasons for recommendingsettlement and never told him that some of the Applicant’s co-workers, in addition toD.L., would be called in support of the Employer’s case. Furthermore, the Applicanthad consistently denied that he had done anything wrong, either in relation to theNovember 10, 2010 incident or in relation to the prior incident when the police hadbeen called to the Employer’s premises. In their telephone conversations of July 21,2011, N.M. continued to assert to Mr. Doyle that prior incidents should have nobearing on the current arbitration. Mr. Doyle was unsuccessful in convincing N.M.that an employee’s prior disciplinary record is often very important in arbitrationsrelating to the termination of that employee. Mr. Doyle repeated that the Applicanthad the option of proceeding with the arbitration if he did not wish to consider asettlement. However, as a result of their conversations of July 20th and 21st, N.M.had developed serious misgivings with respect to whether Mr. Doyle would properlyrepresent his brother’s interests at arbitration and expressed the view that he and hisbrother would like to get legal advice with respect to their available options.xv)According to Mr. Doyle, his telephone conversations with N.M. on July 21st becameheated. Mr. Doyle alleged that N.M. became very angry and hung up the phone onhim on at least five or six occasions. Mr. Doyle also said that N.M. became abusivetowards him and screamed at him using words to the effect of: “you’re trying toscrew us”, “you are really representing the company” and “you are not properlyrepresenting my brother”. N.M. acknowledged he was upset and felt pressured, and./11
CASE NO. 157/12/LRAPage 11that he hung up on Mr. Doyle. However, he denied that he screamed or becameabusive towards Mr. Doyle. He also denied that he had hung up on Mr. Doyle asfrequently as alleged. At some point, later in the morning, N.M. told Mr. Doyle thathe (N.M.) was under too much pressure, and could not make a decision, and thatMr. Doyle would have to speak to and obtain direction from the Applicant.xvi)As noted, during their telephone conversations on the morning of July 21st, N.M. hadindicated to Mr. Doyle that he thought the arbitration proceedings should beadjourned to enable him and his brother to obtain legal advice. Mr. Doyle wasinitially resistant to that suggestion, believing that the Applicant should eitherattempt to settle, or should proceed to arbitration, and that the Applicant must bemade to understand that if the grievance was dismissed, he would receive nothing byway of compensation. However, after his telephone conversations with N.M. hadbecome increasingly argumentative and N.M. had expressed a desire to obtain legaladvice, Mr. Doyle called the Applicant. The Applicant told Mr. Doyle that he wouldonly consider a settlement if his brother (N.M.) told him to do so. The Applicantalso indicated he agreed with his brother’s suggestion to adjourn the hearing in orderto seek legal advice. By then, Mr. Doyle was of the view that an adjournment forthat purpose would be a reasonable course of action because he had concluded thatneither the Applicant nor N.M. fully understood what was happening, nor did theyunderstand the advice he was giving to them. Mr. Doyle attempted to telephoneN.M. several times without success, but eventually N.M. called him and inquired asto the status of the arbitration.Mr. Doyle said that he intended to contactMr. Christiansen to request an adjournment to enable N.M. and the Applicant toobtain legal advice. It was Mr. Doyle’s understanding that N.M. and the Applicantwould be obtaining legal advice about the arbitration process generally, and aboutwhether the Applicant should attempt to settle his grievance with the Employer orshould proceed to arbitration. Mr. Doyle told N.M. that he would attempt to obtain./12
CASE NO. 157/12/LRAPage 12the adjournment, but otherwise would await contact from the lawyer that N.M. andhis brother chose to retain. Mr. Doyle accordingly contacted Mr. Christiansen whoagreed, with some reluctance to the adjournment, on the basis that the Applicant wasintending to seek independent legal advice. Mr. Doyle also told Mr. Christiansenthat if the Applicant obtained advice and decided that he wanted to proceed with thearbitration, the Union would be reconsidering whether it was willing to proceed withthe arbitration.xvii)On July 28, 2011, Mr. Doyle received an e-mail from N.M. The e-mail stated in part:“ So that July 21st in the morning you called me again thistime at my home. You told me that the company doesn’t wanthim back and they just want to pay him. During ourconversation you have suggested that if he doesn’t want to takethe money and he loses at the arbitration he would have no jobplus he loses the money. You said you were saying this becauseyou don’t want to be blame if (F.V.M.) doesn’t get his job back.You put us in a very difficult situation Mr. Doyle all this thingsis happening in a very nick of time prior to the arbitration. I toldall this to my brother. The decision had finally came up is topostpone the arbitration, and you agreed that we could postponeit for his best interest, this is very difficult and critical timelines.About the lawyer that (F.V.M.) is going to have, it is notpossible because you are handling his case. It’s in the bestinterest of (F.V.M.) for you to help him. I think it is better ifyou can phone (F.V.M.) and tell him when to resume thearbitration or what final decision he want for his job or hisfuture. ” (sic)Mr. Doyle responded by way of an e-mail to N.M. on July 29th, which stated, in part,as follows:“ As far as the postponement on the hearing goes you hadasked me to do that and suggested that (F.V.M.) would seekadvice from his own attorney. I agreed that may be in his bestinterest as both of you were clearly not understanding what washappening and what I was saying. I called (F.V.M.) after youhung up the phone on me and explained to him the situation. He./13
CASE NO. 157/12/LRAPage 13agreed with our recommendation to postpone the hearing andseek legal advice. I tried again four or five times to call youback to confirm with you your decision before I asked for apostponement and you continued to hang up the phone on me.A short time later to my surprise you called me back askingwhat was happening.By your e-mail, it now seems you are suggesting (F.V.M.) nolonger wishes to seek independent legal advice. I will notaccept that. Before we continue with any further discussionswith respect to (F.V.M.)’s case I suggest (F.V.M.) retain somesort of outside legal advice and have his advisor contact me assoon as possible. I will contact (F.V.M.) by telephone as hedoes not have the means of receiving this e-mail.I will await your response.”xviii)In one of their final telephone conversations on July 21, 2011, Mr. Doyle had made itclear to N.M. that he would no longer be communicating with him, but only with theApplicant, or lawyer representing the Applicant, in relation to the arbitrationproceedings. Mr. Doyle received no communication from the Applicant, or a lawyerrepresenting the Applicant, or from N.M. in the weeks following July 21st. Duringthat period, Mr. Doyle and the Union considered their position and decided they wereno longer willing to proceed to arbitration on behalf of the Applicant. Mr. Doyletestified that the Union did not take that decision lightly. The Union based itsdecision not to proceed on its assessment of the poor overall chances of success inthe arbitration, given D.L.’s description of the November 10, 2010 incident and theprior disciplinary record of the Applicant. In addition, the Union took into accountthe interests of the entire membership of the Local, including those employees whowere frightened and concerned by the Applicant’s behaviour in the workplace, andconcluded that the proper course of action was not to proceed to arbitration.xix)Accordingly, Mr. Doyle wrote to the Applicant by way of a registered letter datedSeptember 23, 2011, which stated:./14
CASE NO. 157/12/LRAPage 14“This letter is to notify you that following your request onJuly 21st 2011 to postpone the Arbitration hearing scheduled forJuly 21st 2011 for the above-mentioned matter in order for youto seek legal advice the GMP International Union hasinvestigated your grievance further and has made the decisionnot to precede in arbitration.Should you have any questions please submit them in writing tomy office or by e-mail to gmpdoyle@on.aibn.com.” (sic)Mr. Doyle’s intention was to wait for some period of time (at least one or two weeks)before advising the Employer that the grievance would not be proceeding, toascertain if the Applicant, or a lawyer representing the Applicant, would contact theUnion.xx)Unfortunately, the registered letter from the Union to the Applicant was incorrectlyaddressed and was sent to an address at which the Applicant had formerly lived forapproximately 10 years, but from which he had moved several months previously.Canada Post returned the letter to the Union sometime prior to October 12th.Mr. Doyle testified that he had called Canada Post, on at least three occasions todetermine why the letter had not been received by the Applicant, and was advisedthat the letter had not been picked up.On the basis of those conversations,Mr. Doyle incorrectly concluded that the Applicant was not picking up the letterbecause he was deliberately attempting to avoid communications with the Union. Atsome time in October, 2011, Mr. Doyle, on behalf of the Union, advised theEmployer, that the Union would not be proceeding with the Applicant’s grievance.xxi)In December, 2011, Mr. Doyle received voicemail messages from N.M. In responseto those messages, he sent an e-mail to N.M. (improperly spelling his name as “N.”)dated December 11, 2011, which stated:“I have received your voice mail messages./15
CASE NO. 157/12/LRAPage 15The GMP International Union sent a registered letter to(F.V.M.) on September 23rd informing him of our decision notto proceed further with his grievance. The letter was sent byregistered mail and Canada Post made three attempts to deliverit to (F.V.M.).For your information the contents of the letter is duplicatedbelow: ”N.M. replied by way of an e-mail dated December 19, 2011, which stated:“Dear Dave,I received your email in regards to (F.V.M.)’s case onDecember 15, 2011. I had been waiting for your response for somany months I had been leaving messages and I have not gottenany respose niether answer my call for so many attemps. Youhave not even made me aware that you are communicating tomy Brother. And you are sending him registered mail in thewrong address. Mr. Doyle why did you just emailed me aboutthe September 23, 2011 information letter this December 11,2011? And why are you not answering my messages and mycalls. And you promise us and agreed you will make a rescheduling for the Arbitration. We had been waiting andwaiting but no response niether communicate with meIthought it should be few weeks only instead you surprise methat you are no longer proceeding his grievance emailedDecember 11, 2011. As for now (F.V.M.) has not receive all thedocumentations because you sent them to the wrong address.Mr Doyle the company has his correct address since he has notmove you also have the correct address you also have myaddress, the registered mail comes back to you many times andyou did not even make me aware of it? Thank you for all yoursupports I think there is nothing you can do anymore becauseyou already terminated his case. You will just be notified ofsome information and communication on regard to this matter.Thank you. and by theway I had been emailing you and you hadsent me documents before you had my name correct. My nameis N.M. not N.thanks.N.M.” (sic)./16
CASE NO. 157/12/LRAxxii)Page 16Mr. Doyle testified that he was not aware that his letter dated September 23, 2011had been incorrectly addressed until his communications with N.M. in December,2011.xxiii)The Applicant was out of Canada for a period of several months in the first half of2012, but returned and filed the Application commencing these proceedings onJune 7, 2012.III. AnalysisThe duty of fair representationThe Applicant bears the onus of establishing a violation of Section 20 of The LabourRelations Act (the Act) by the Union. This case involves the dismissal of the Applicant by theEmployer and therefore pursuant to Section 20 of the Act, the Applicant must establish on thebalance of probabilities that the Union either acted in a manner which was arbitrary,discriminatory, or in bad faith, or that the Union failed to take reasonable care to represent theinterests of the Employee.If the Applicant can establish either of those two things, he will have established thatthe Union committed and unfair labour practice, and he is therefore entitled to a remedy pursuantto subsection 31(4) of the Act.This Board, and many other labour relations boards, have frequently considered themeaning of the phrase “arbitrary, discriminatory, or in bad faith” in the context of duty or fairrepresentation complaints against Unions. A useful and accurate summary of the law in this areais found in the 2010 decision of this Board in V.S. and MGEU and Manitoba Human RightsCommission (Case Nos. 26/09/LRA and 27/09/LRA), and is set forth below:./17
CASE NO. 157/12/LRAPage 17The onus of establishing that a bargaining agent has violated section 20of the Act is on the applicant. Section 20(b) of the Act makes it an unfairlabour practice for a bargaining agent, and persons acting on behalfthereof, to act in a manner which is arbitrary, discriminatory or in badfaith in representing the rights of an employee under the collectiveagreement. The applicable standard of care under section 20(b) of theAct is expressed in the negative; bargaining agents must not representemployees in a manner that is arbitrary, discriminatory or in bad faith.The Board’s inquiry in such cases is limited to determining whether anapplicant has demonstrated th
CASE NO. 157/12/LRA Page 3 . The Employer also denied that the Union acted contrary to Secti
6 Van der Merwe, DP. Roos, A. Pistorius, T. Eiselen, GTS. & Nel, SS. Information and Communications Technology Law 2nd ed (2016) LexisNexis: Cape Town (hereinafter Van Der Merwe et al). 7 Van Der Merwe et al 134. 8 Labour Relations Act 66 of 1994 (the LRA). 9 The LRA s 64. 10 The LRA s 64.
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