Unfair Labour Practices (ULP) and Board Determinations

Unionized workers do not have individual employment contracts. Instead, the union negotiates a collective agreement with the employer which sets the terms and conditions of employment for all the employees it represents.

When there is a disagreement about a term or condition of employment, the dispute is between the union and the employer. These disputes are often called grievances, and the collective agreement will include a process for settling them. When the union is working on a solution to the disagreement, they are considering the needs of all employees they represent in the workplace, not just the person who believes they have been wronged.

When an employee brings a workplace issue to the union, the union must carefully consider the issue and determine how it may proceed. The union may decide that a grievance should be filed to bring the concern to the attention of the employer, but it may also decide that, for a variety of reasons, a grievance will not be successful and therefore they will not proceed. They may also negotiate a settlement of the grievance with the employer. If the union and employer cannot reach an agreement, an independent arbitrator may be appointed to help them settle the matter.

The Duty of Fair Representation requires that when a union is representing an employee in connection with a collective agreement, they must not act in a manner that is arbitrary, discriminatory or in bad faith.

The Manitoba Labour Board has ruled on what these terms mean, and has provided some guidance of what unions must do to comply with its duty of fair representation, including:

• considering and investigating the issues raised and acting upon the results of what has been discovered
• treating the complaint in the same manner as it would for all other employees in the unit, including a duty to consider any requirements for accommodation that may be needed
• acting honestly, without considering their personal feelings about the people involved

If an employee has been terminated, their union must also act with reasonable care.

The union has control of the grievance process and is allowed to make decisions even if the employee disagrees. The union needs to consider the legitimate interests of both the induvial and the entire bargaining unit when deciding how to proceed.

The employee must cooperate with the union in its attempt to resolve the dispute. This means that the employee must participate in the process and communicate with the union, even if they do not agree with the union's strategy.

If a union acts in an arbitrary, discriminatory or bad faith manner in representing a member under a collective agreement, an employee can make an application to the Manitoba Labour Board (the “Board”). The application must explain how the employee believes the union has failed to meet its Duty of Fair Representation.

When deciding if a union has acted in a manner that is arbitrary, discriminatory or in bad faith, the Board will assess how the union handled an employee's case and how it made its decisions. The Board does not assess the employee's grievance or second-guess the decision made by the union whether to take a grievance forward.

The Role of the Manitoba Labour Board

The Board will:

• process the application
• provide the union and the employer an opportunity to respond to the application
• act as a neutral decision maker to determine, based on the material filed, if a union has violated its duty of fair representation
• if necessary, appoint a mediator to assist the parties to try to resolve all or part of the matter

The Board only considers how the union acted in the process. It will not decide the outcome of the grievance. While workplace events and employer conduct may be part of the background of a complaint, a duty of fair representation complaint is not the place to address complaints about the employer.

In a Section 20 Complaint, the Board Will NOT

Decide if the union's decisions were right or wrong. A duty of fair representation complaint is not an appeal of a union's decision.

Consider whether the employer's actions were right or wrong. In a duty of fair representation complaint, the Board will only consider the union's representation of the member.

Investigate to see if the union's representation was arbitrary, discriminatory or in bad faith. The decisions of the Board are based on:

• the information filed with the application
• the submissions of the union and the employer
• the testimony and argument at a hearing, if necessary

Provide legal advice or representation. The Board can't tell you if you should or shouldn't file an application against the union. The Board can only make a decision on your case after it's been filed.

What is the Duty of Fair Representation?

In a duty of fair representation complaint, it is the applicant's responsibility to prove that the union's action or decision was arbitrary, discriminatory, or in bad faith.

A union may fail in its duty of fair representation in representing a member under the collective agreement if it acts in one or more of the following ways:

• Arbitrary
  • makes choices without good reason
  • acts on unrelated factors or principles
  • acts in a careless and indifferent manner
  • commits obvious mistakes with a non-caring attitude
• Discriminatory
  • treats some individuals differently than others in similar positions or circumstances
  • treats individuals differently without a valid reason
  • treats individuals differently based on race, gender, age or another characteristic protected by the Human Rights Code
• Bad Faith
  • treats individuals in a way to hurt them on purpose
  • acts in a manner that is based on ill will or hostility
  • uses dishonesty or misrepresentation
  • hides or covers-up information from an individual

Each case is different. Other things the union did or did not do may be considered when deciding if a union failed its duty of fair representation. The union can act fairly even if the outcome is not what the employee wants.

Things the union must do:

• take reasonable steps to investigate and consider the concerns of the employee
• reasonably communicate
• use the relevant facts and available information to make decisions that are carefully considered and logical (reasoned)
• take into account the importance of the grievance and its consequences for the employee along with the legitimate interests of the union and the employees as a whole

What Unions Can Decide

A union has a lot of freedom when choosing a strategy for resolving issues under a collective agreement. They can decide:

• if they will file a grievance with the employer
• how far they will take that complaint through the grievance process
• if they will take a case to arbitration
• if they will settle

The union can decide to stop or settle a case even if the employee does not agree, as long as the decision is not arbitrary, discriminatory or made in bad faith.

A union may seek a legal opinion on the strengths and weaknesses of a case. If they follow the legal opinion, this is a strong defence to a duty of fair representation complaint.

Filing a Complaint

If you believe that your union has failed in its duty of representation, you can file a complaint with the Board. You must describe fully and in an organized way all the facts that you rely on to support your allegation that your union acted in a manner that was arbitrary, discriminatory or in bad faith in representing you. To support your application, you can include emails, written statements and documents that help explain the situation and provide proof.

An application must include:

• Form XX: Application Alleging an Unfair Labour Practice (Duty of Fair Representation)
• Form A: Memorandum of General Information Required on all Proceedings, sworn as a statutory declaration
• specific details of how the employee believes the union has failed in its duty of fair representation
• supporting documentation showing how the union acted in a way that was arbitrary, discriminatory or in bad faith

Keep in mind the complaint is filed against the union and not the employer. Facts and supporting documents included with the application must be relevant to the complaint and will be sent to both the union and the employer.

Important Note: The Board may refuse a complaint if it's about something that happened too long ago. The complaint should be filed with the Board within six months of the alleged violation. If the complaint is filed later than this, the applicant must explain the delay and provide proof that were exceptional reasons for the delay.

The Complaint Process

Once a complaint is filed with the Board, the following process will be followed:

1. A copy of the application is sent to the union and the employer. The employer is sent a copy because the solution to the grievance may involve or affect them.
2. The union and the employer are given an opportunity to file a Reply. The Reply is their statement of the facts. Each are giving their position on the complaint.
3. The applicant is given a chance to respond to the Replies. This is not a chance to raise new issues or repeat the information stated in the application. It is only to respond to any new facts or issues that the union or the employer brought up.
4. The board uses the information that was filed and decides if the application will go to hearing. An application might not go to hearing if it is out of time or does not meet the prima facie threshold. Prima facie (Latin for “at first sight”) means that if the facts written in the application are proven true, there is a reasonable likelihood that the complaint will succeed. This supports the claim that there has been a possible violation of the Act. They will also check if the application was submitted following the timelines.
5. If the application is going to hearing, please see Preparing for Your Hearing

The Labour Relations Act (the “Act”) contains specific provisions that protect employees from employer reprisals for exercising their rights. Specifically, employees have the right to make decisions about union membership, participate in union activities, and participate in legal processes without employer interference. If an employer interferes with these rights, employees can submit an Unfair Labour Practice complaint under Section 7 or Section 17 of the Act. Employees should carefully consider which section applies to their situation.

All applications alleging unfair labour practices must include a concise statement of facts outlining the employer's actions (or inactions) being challenged. This statement must identify the individuals involved and say when and where the actions took place.

The Board may refuse or dismiss a complaint if the alleged violation happened too long ago. Complaints should be filed with the Board within six months of the alleged violation. If filed later, the applicant must provide evidence of exceptional circumstances for the delay.

SECTION 7 of the Labour Relations Act (the “Act”) protects workers from employer reprisals for participating in union activities or exercising their legal rights.

When an employer retaliates against workers for engaging in these protected activities, it is what the law defines as an “unfair labour practice.”

What is employer retaliation?

Under section 7, employers commit an unfair labour practice if they:

• refuse to hire someone
• fire someone
• refuse to continue employing someone
• treat someone differently in their employment

because of their:

• union membership (past or present)
• participation in union activities
• involvement in organizing a union
• complaints or applications filed under any Act of the Legislature or Parliament
• testimony given or potential testimony in a proceeding required by any Act of the Legislature or Parliament
• disclosures made or that may be made in a proceeding required by any Act of the Legislature or Parliament
• participation in proceedings under any Act of the Legislature or Parliament
• exercise of rights under any Act of the Legislature or Parliament

When filing a Section 7 application alleging an unfair labour practice committed by an employer, the applicant must provide sufficient facts that, if true, show they exercised the protected right and that the employer took retaliatory action. It will then be up to the employer to prove to the Board that either the employee did not exercise the protected right, or that the employer's actions were not influenced by those rights. This is known as a “reverse onus”, meaning the respondent, not the applicant, must prove the case.

SECTION 17 of the Labour Relations Act (the “Act”) protects workers from being discouraged from participating in union activities or exercising their legal rights. Employers must not:

• Deny or threaten to deny pension rights or benefits to employees who exercise their legal rights
• Use intimidation, threats, or rewards to discourage employees from exercising those rights

An employer that behaves in these ways commits what the law defines as an “unfair labour practice.”

If an employee believes that their employer has committed an unfair labour practice, they may file an application under Section 17 of the Act. In these cases, the applicant has the responsibility of proving their claim.

What are unfair labour practices by employers?
Section 17 of the Act covers two main types of unfair practices:

Denial of Pension Rights or Benefits
An employer commits an unfair labour practice when they deny or threaten to deny pension rights or benefits because an employee:

• stopped working due to a legal strike or lockout
• was fired in violation of the Act
• exercised any right provided under any legislative act

Use of Threats or Improper Influence
An employer commits an unfair labour practice when they try to influence an employee's actions using:

• intimidation or coercion
• threats of dismissal or other threats
• financial or other penalties
• promises
• changes to wages
• changes to working conditions
• any other means

When these methods are used to discourage someone from:

• being or becoming a union member, officer, or representative
• exercising their rights under the Act
• testifying or participating in any proceeding under any Act of the Legislature or Parliament making required disclosures under any Act of the Legislature or Parliament filing complaints or applications under any Act of the Legislature or Parliament

When filing a Section 17 application alleging an unfair labour practice by an employer, the individual must provide a detailed explanation of what the employer did and how those actions violated Section 17.

If you believe that your employer has committed an unfair labour practice, you can file a complaint with the Board. Your application must include a complete and organized description of all relevant facts supporting your allegation. You may attach emails, written statements and other documents that explain the situation and provide evidence.

An application must include:

• Form XIII: Complaint by an Individual Alleging an Unfair Labour Practice by Employer
• Form A: Memorandum of General Information Required on all Proceedings, sworn as a statutory declaration
• specific details of how the employee believes the employer has committed an unfair labour practice under either Section 7 or Section 17
• supporting documentation showing how the employer committed an unfair labour practice

Facts and supporting documents included with the application must be relevant to the complaint. These materials will be shared with the employer and, if applicable, the union.

Important Note: The Board may refuse a complaint if the possible violation happened too long ago. Complaints should be filed within six months of the alleged violation. If filed later, the applicant must explain the delay and provide evidence of exceptional circumstances for the delay.

Process After Filing a Complaint:

Once a complaint is filed with the Board, the following process will be followed:

1. Application Sent: A copy of the application is sent to the employer (and, if applicable, the union).
2. Employer Reply: The employer is given an opportunity to file a Reply, outlining their position and evidence.
3. Applicant Response: The applicant may respond to the Reply, but only to address new facts of issues raised in the Reply. This is not a chance to raise new allegations or repeat previous information.
4. Board Review: The Board reviews the information that was filed to decide whether there will be a hearing. An application may be dismissed if it is out of time or does not meet the prima facie threshold. Prima facie (Latin for “at first sight”) means that if the facts in the application are proven true, there is a reasonable likelihood the complaint would succeed. This supports the claim that there has been a possible violation of the Act. The Board will also check if the application was submitted within the timelines.
5. If proceeding to Hearing: See Preparing for Your Hearing.

Unfair labour practices are actions by employers or unions that interfere with rights protected by sections 5 to 33 of the Labour Relations Act. Some of these rights apply to the interactions between the employer and the union; others apply to employees and are intended to protect individual workers from unfair treatment by either an employer or a union.

This document is a summary of how the Act prohibits unfair labour practices by employers and unions that interfere with employee rights or with the delicate balance the Act creates between unions and employers.

The Act imposes a duty on Unions to represent their members fairly. Read more above about the Duty of Fair Representation and how employees can file complaints.

The Act also contains specific provisions protecting employees from reprisals by employers for exercising their statutory rights. Read more above about Employee Complaints of Unfair Labour Practices against an Employer and how employees can file complaints.

Part I of The Labour Relations Act deals with unfair labour practices, which generally fall into the following categories:

Bargaining in Bad Faith

• refusal to bargain collectively
• surface bargaining
• unilateral changes during bargaining
• failure to provide information necessary for meaningful negotiations

Removing Employee Rights

• interference with employee rights to organize
• discrimination against union members
• employer domination of labour organizations
• retaliation for protected activities

Interference with Union Activities

• interference with union formation
• discriminatory hiring practices
• threats or coercion related to union activities
• surveillance of union activities
• interference with legal strikes

Financial / Administrative Violations

• failure to remit dues
• financial reporting violations
• misappropriation of union funds, violations subject to financial penalties

Representation Procedures

• improper conduct during certification or decertification processes that interferes with employee free choice
• violation of the statutory freeze provisions following an application for certification

Dispute Resolution

• refusal to participate in arbitration, mediation, or other dispute resolution mechanisms required by law

Union Administration

• violations related to financial statements, duty of fair representation, and handling of religious objector status

Work Stoppages

• illegal strikes or lockouts
• misconduct during legal work stoppages

Use of Prohibited Replacement Workers

• failure to comply with restrictions on the use of replacement workers during a strike or lockout as outlined in section 94.1(6) of the Act

If the Board finds there has been an unfair labour practice, section 31(4) of the Act outlines ways to remedy (resolve) the problem. The Board may, for example:

• order an employer to reinstate an employee to their employment with back pay and interest
• order the person, employer, or union to stop the prohibited conduct
• order an employer to post information in the workplace or a union to provide a statement to its members

If the unfair labour practice relates to organizing and certification, the Board may do such things as:

• order a discretionary certification
• reject an application for certification
• order one of the parties to pay a penalty

Unions or Employers who believe an unfair labour practice has been committed can file a complaint with the Board. The complaint must set out fully all the facts that will be relied on to support the allegation. To support the application, the filing party may submit relevant documentation, including contracts, correspondence, emails, written statements and other materials that assist in explaining the circumstances and establishing the alleged violation. Where witness statements are obtained, the filing party should ensure that the individuals are available and prepared to testify at the hearing, should one be convened.

An application must include:

• Form A: Memorandum of General Information Required on all Proceedings, sworn as a statutory declaration
• specific details of how the employer or union is believed to have committed the unfair labour practice

Facts and supporting documents included with the application must be relevant to the complaint. These materials will be shared with all parties.

Process After Filing a Complaint:

Once a complaint is filed with the Board, the following process with be followed:

1. Application Sent: A copy of the application is sent to the other parties.
2. Reply: The respondent is given an opportunity to file a Reply, outlining their position and evidence.
3. Applicant Response: The applicant may respond to the Reply, but only to address new facts of issues raised in the Reply. This is not a chance to raise new allegations or repeat previous information.
4. Board Review: The Board reviews the information that was filed to decide whether there will be a hearing. An application may be dismissed if it has been delayed without a reasonable explanation or does not meet the prima facie threshold. Prima facie (Latin for "at first sight") means that, assuming that the facts in the application are provide and can be established if the matter proceeded to a hearing, there is a reasonable likelihood the complaint would succeed. In other words, the application must disclose a possible violation of the Act. Where the complaint does not meet this prima facie threshold, it will be dismissed by the Board.
5. Hearing: If the board has not dismissed the application, it will direct that the matter proceed to a hearing. See "Preparing for your hearing" for details. The Board may also appoint a Board representative to act as a mediator to assist the parties in discussions to settle the matter without a hearing.

The Manitoba Labour Board (“the Board”) has the discretion to answer questions for the purposes of The Labour Relations Act. The Board's power comes from section 142(5) of the Act. The Act provides a list of some specific questions that the Board may answer, but it is not limited to that list. Some of the examples include:

• If a person is an employer, an employee, or a professional employee
• If a person is a member of a union
• If an organization or association is a union or an employers' organization
• If an employee is in a bargaining unit, and if a unit is appropriate for collective bargaining
• If a collective agreement is in force, and who it covers

The Board can decide specific issues as part of applications, or as a stand alone request for a board determination. The Board may also make such determinations on its own motion. Most Board determinations involve status or rights under the Act and a Board determination may affect other rights under the Act. For example, a determination of whether a person is an employer or an employee could affect voting rights in a representation vote.

The Board may accept an application from any person, union or employer's organization asking a specific question, if it is satisfied that an answer to the question is needed for purposes of the Act and the person asking the question would be affected by the answer.

Applications must be in writing and accompanied by a Form A. Applications must contain all the relevant details and facts to support the applicant's position such as:

• the specific question they need answered
• why they are affected or interested in the answer
• how the answering of the question is necessary for the purposes of the Act
• how they believe the question should be decided

An applicant must also identify any other party they believe has an interest in the question being put before the Board. The Board will then send the application to the other interested parties to request their position on whether it should answer the question being asked, and the respondent's position on the question.

Making the determination

Under section 142(5) of the Act, the Board has discretion to make determinations. Before proceeding, it will assess whether the determination is necessary for the purposes of the Act. If not, the Board may decline to hear the application. The Board may also defer to arbitration if the issue arises under a collective agreement in accordance with section 140(7) of the Act.

Once the Board has accepted the Application and has received the positions of the parties on the matter, it will review the material filed and determine if it will answer the question. When considering whether it should exercise its discretion to answer a question, the Board often looks to the preamble of the Act which states:

“… it is in the public interest of the Province of Manitoba to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and unions as the freely designated representatives of employees”

In some cases, the Board can determine the matter based on the material filed, but it can also conduct a hearing or seek further submissions.

If the Board determines that it will answer a question, it will issue a decision in writing