Question: I pay my union dues, but I’ve been told the Alberta Teachers’ Association will not be supporting me in my dispute with my employer. Doesn’t the ATA have a duty of fair representation to back me up?
Answer: As Sean Brown, the ATA’s associate co-ordinator of Teacher Employment Services (Collective Bargaining) reminded me in assisting with this answer, active membership in the Alberta Teachers’ Association is a bit like an insurance policy. Many teachers will go through their entire careers without finding themselves in conflict with their employers, at least not at a level or frequency that would require Association assistance. At the same time, it is reassuring to know that if things go pear-shaped, the Association will be there to provide support.
And you can be assured that, on matters relating to employment, the Association is there for you. We even have a specific legal obligation to do so, which is referred to as a “duty of fair representation” (DFR), which applies with respect to a member’s rights under their collective agreement.
But the key word in that phrase is “fair.” This legal duty is not unlimited or at the sole demand or direction of the teacher. In treating a member fairly, the Association as a union needs to act without discrimination, arbitrariness, bad faith or serious negligence. In assessing whether we would have met this requirement in any specific instance, the Labour Relations Board (to which a member might make a DFR-related complaint) would review the actions of the Association, asking
- Did the Association act fairly and reasonably?
- Was there due consideration given to the member when making the decision?
- Was appropriate research used to inform the decision and were appropriate efforts made toward settlement?
- Was the decision made in good faith and without discrimination (particularly in regard to protected grounds in the Alberta Human Rights Act)?
- Were appeal or review processes set out in policy followed?
But all of this begs the question, why would the Association not simply do what the member wants? There are several legitimate factors superseding an individual member’s interests or preferences. First among these is the concern about the impact on other members or the profession as a whole. If a member is being unreasonable, attempting to act outside or beyond the provisions of the collective agreement or attempting to advance a position that is patently contrary to law, then the Association will seek out other ways to resolve the situation to the greatest possible advantage of the member, but it will not take an aggressive or adversarial approach that would be likely to make the situation worse.
Similarly, the Association will proceed very cautiously when, on the basis of the facts, previous experience, and legal advice, there is little likelihood of success. This is particularly true when a likely loss would crystalize an unfavourable legal precedent that would adversely affect not only the teacher immediately involved but all others who might find themselves in similar, although potentially more meritorious, circumstances.
Finally, there are considerations of time and cost (financial and human). Proceedings can be very lengthy and emotionally draining for a member and entail the expenditure of tens or even hundreds of thousands of dollars on the part of the Association. The Association will attempt to achieve the best obtainable solution for a member so that they can move on, while being wise stewards of our members’ money.
If, in its union role, the ATA reaches a conclusion with which a member disagrees, this does not necessarily constitute a breach of the Association’s duty of fair representation.
When acting in its professional regulatory function, particularly with respect to professional conduct processes, the Association is obliged to serve the public interest and will not provide representation to members who have been charged with unprofessional conduct. This is why members are not represented by the Association in professional disciplinary hearings. ❚
Questions for consideration in this column are welcome. Please address them to Dennis Theobald at email@example.com.