Trade Union “A” with 1,000 members was selected as the bargaining representative union (BRU) and reached a collective agreement with its company. Once collective bargaining had concluded, Trade Union “B”, a minor union with 10 members, was not satisfied as it felt there was unfair discrimination in terms of allocation of office space and time-off, and claims that both Trade Union A and the company have violated the duty of fair representation. When it comes to ‘equality’, Trade Union B’s claim seems reasonable. However, does the company have to provide an office to such a minor trade union? Also, does the company have to pay the same amount of a special ‘not going on strike bonus’ to Trade Union B as it paid to Trade Union A, since Trade Union B has been on strike for three months?
After multiple trade unions have been allowed at single workplaces, claims of discrimination against minor unions and inter-union conflicts have often been reported in the media. It is not easy to understand discrimination and conflict between trade unions, not between unions and companies.
This issue mainly stems from the fact that multiple trade unions are allowed and therefore, there must be a single bargaining channel. As the term ‘unification of bargaining channels’ suggests, a bargaining representative union (BRU) needs to be determined in order to deliver unified opinions from multiple unions. Such a system is based on the idea that it is an inefficient waste of time if a company has to engage in collective bargaining with each separate trade unions.
The problem is that not every union will be satisfied with the outcomes in collective bargaining between the BRU and the company. In this case, Trade Union B claims that it is being discriminated against. Let’s look at various areas related to this issue.
What is the duty of fair representation?
The BRU has an obligation to negotiate on the other unions’ behalf with the company and reach a collective agreement. That is, the BRU, representing various interests of other unions, should ‘fairly and impartially’ engage in collective bargaining with the company because the final collective agreement is to be applied to all unions.
In order to prevent unfair situations where the BRU pursues only its own interests, or concludes a collective agreement which may be partially unfavorable to other unions, the Trade Union & Labor Relations Adjustment Act (TULRAA) stipulates a ‘duty of fair representation’.
As mentioned above, the purpose of this duty of fair representation imposed on the BRU is quite understandable. For example, Trade Union A, as the BRU, shall bear the duty to ‘collect the opinions from other unions and also provide information to them’ in the course of collective bargaining. Even though the BRU has authority to select negotiation agenda and conclude an agreement with the company, it may be a violation of the fair representation duty if the BRU fails to collect the views of other unions, intentionally neglects certain unions, or does not share information on the process and outcome of the collective bargaining.
The other important thing to remember is that the duty of fair representation is imposed not only on the BRU, but also on the company. This means that both the BRU and company bear joint responsibility if the collective agreement discriminates against minor unions without just cause.
It does not mean unconditional equality
On the face of it, the duty of fair representation seems to mean treating two unions (A and B) identically. This is true in general terms; however, sometimes ‘identical treatment’ can be rather unreasonable. When deciding whether there is discrimination against minor trade unions, various factors need to be taken into consideration, such as the number of members in those unions. Specific areas where discrimination may exist can be seen in the following paragraphs.
1. Discrimination in terms of determining wage and performance-based bonuses
If the new collective agreement sets different levels for wage and performance-based bonuses by trade union, violation of the fair representation duty can be claimed. Also, if some union members are treated disadvantageously in terms of restructuring and relocation without justifiable cause, this can also be a violation of the duty of fair representation.
However, if justifiable reasons exist, different levels of wage and bonuses may be paid to certain union members. In the opening situation with A and B trade unions, Trade Union A was sincerely engaged in collective bargaining while Trade Union B went on strike in the course of collective bargaining. Given this fact, it may not be unfair discrimination to pay a special bonus in the name of ‘not going on strike’ only to members of Trade Union A.
2. Discrimination in terms of allocating time-off
As the total amount of paid time-off is determined by workplace unit, the unions concerned are advised to divide it amongst themselves according to the agreement between labor and management. In most cases, the amount of time-off is allocated among unions according to the number of union members. However, other reasonable criteria can be applied, such as the amount of time the BRU spent performing its union activities such as collective bargaining.
However, if the BRU takes all the time-off, claims that it has violated the fair representation duty might be raised.
3. Discrimination in terms of PR time
More attention is also needed for allocating time to advertise among unions. According to legal precedent, the time for each union’s publicity activities should not be determined on the basis of the number of members, but rather should be shared equally between them. Minor unions might need more time to advertise themselves to new workers.
4. Discrimination in terms of providing union office space
In our opening case, the company does not need to provide union office space to small unions with a few members, although office supplies or temporary office space may be given. This means that even if Trade Union B was not given its own office space, it is not clear that unjustified discrimination occurred.
5. Other amenities
Besides the above-mentioned items, trade union general assemblies, checkoff (paying trade union subscription), message boards for trade unions, and other things are essential for maintaining and managing a union. Thus, it is generally considered that these items should be equally accessible for the unions regardless of their number of members. Employers are advised to pay attention to the fact that the duty of fair representation applies to routine union activities.
It is companies who should present justifiable reasons for different treatment
It is very important for companies to engage in collective bargaining based on reasonable standards since the duty of fair representation is related to differentiation issues between trade unions. Criteria for any differences should be reviewed carefully as companies may have to compensate for any discrimination related to wage or other working conditions.
Moreover, employers should note that breaching the duty of fair representation can bring unfair labor practice claims. The company in the case study will not be considered as having breached its duty simply because it did not provide office space to Trade Union B. It will be possible for the company to give a bonus to Trade Union A for its cooperative attitude during the bargaining, if the bonus is not too big. However, the responsibility to provide appropriate reasons for the purpose and any difference in amount of bonuses lies with the company.