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fair representation

Legal Definition of fair representation

Dictionary entries near fair representation.

fair play and substantial justice

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“Fair representation.” Merriam-Webster.com Legal Dictionary , Merriam-Webster, https://www.merriam-webster.com/legal/fair%20representation. Accessed 25 Apr. 2024.

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Labor Unions: Duty of Fair Representation

I feel like my union has treated me unfairly. what are my rights.

A union owes a duty of fair representation to all of the workers it represents. This duty requires that the union act fairly, impartially, and without ill will or discrimination when pursuing a worker’s grievance or when negotiating a new contract with the employer. The union is required to take reasonable steps to investigate a grievance and must represent members in more than a dismissive manner. It is illegal for a union to treat you in ways that are:

• arbitrary (e.g., a union refuses to pursue your grievance without reason);
• discriminatory (e.g., a union refuses to pursue the grievances of all of its non-white workers);
• or in bad faith (e.g., a union official fails to respond to your complaint just because he/she doesn’t like you).

If you feel that the union has treated you in one of these three ways and has breached its duty of fair representation, you may bring legal action against it.

However, the duty of fair representation does not require the union to pursue all grievances until the final possible stage of the grievance procedure or to take all the steps that the member might want it to. The duty of fair representation does not even require that the union do a particularly good job at representing grievances. Unions are only prohibited from acting in arbitrary or discriminatory ways, or in bad faith.

What if there is a union where I work, but I have chosen not to be a member. If I have a grievance, does the union have to represent me?

Yes. Legally, the union has the same obligation to represent you fairly as it does to represent union members. You can ask the union to file a grievance if you are fired or disciplined, even if you are not a member.

What should I do if my union refuses to file a grievance for me?

Sometimes a union shop steward or other representative may refuse to file a grievance. If this happens, you can ask a union officer or someone else who holds a position of power in the union to file a grievance for you.

Unions do not have to represent all employees in all grievances. But the union should agree at least to investigate your complaint and, depending on how strong the union representative feels your case is, decide whether to file a grievance and how far it will go in representing you in the grievance procedure. If you have been fired and the union has not yet decided whether to file a grievance, you should consider putting your grievance request in writing, especially before the grievance deadline expires.

If you feel that the union is not responding to your requests, you may be able to make suggestions to them about how to handle your claim. For instance, you can ask them to interview specific witnesses, request certain documents from the employer, and investigate the experiences of coworkers that are similar to yours. Being proactive about your case in these ways may encourage the union to take your claim more seriously.

My union refused to pursue my grievance after I lost my hearing, but I want to go to arbitration. Can I sue the union for refusing to go further with my case?

Probably not. Unions have a lot of leeway in choosing which grievances they will handle. If the union honestly believes that your case is not strong enough to continue, it may legally stop representing you. However, if you feel the union stopped pursuing your case just because they didn’t like you, or because of your race, gender, or other discriminatory reason, the union may have breached its duty of fair representation and you may have a claim.

The union agreed to pursue my grievance, but I am not satisfied with result they got for me. Can I sue the union if it has done a bad job?

Again, probably not. The law does not require that the union be smart about the resolution of grievances. As long as they were reasonably thorough and careful, they will not have breached their duty to fairly represent you—even if the result is worse than the situation that caused you to file a grievance in the first place. On the other hand, if you believe the union intentionally mismanaged your grievance because they didn’t like you or because of your race, gender, or other discriminatory reason, the union may have breached its duty of fair representation and you may have a claim.

If I think the union did not represent me fairly, how do I file a claim?

You should first pursue all other internal procedures. For example, you may be required to appeal your local union’s decision not to pursue a grievance to arbitration with your union’s international office. If you are still not able to get complete relief or your grievance reinstated, you can file a claim with the nearest office of the National Labor Relations Board (NLRB) or in federal district court. (Government employees have different requirements, e.g. state and local government employees file claims with the California Public Employees Relations Board (or “PERB”) Filing with the NLRB, unlike filing in court, is free and you do not need a lawyer.

Either way, you have 6 months from the day that you exhausted all other internal grievance procedures to file your claim. Your claim will be against the union for breaching its duty of fair representation. However, you can also bring a claim against your employer for your original grievance if the reason you did not get a satisfactory remedy was because of the union’s failure to fairly represent you. In the claim against the employer, you must first prove that your union failed to fairly represent you, regardless of whether you are also pursuing a claim against the union.

What am I entitled to if I win my claim with the NLRB or the court?

If your claim is successful, you may get your old job back and back pay for the wages you lost (if you were terminated). You will not get money for any “pain and suffering,” distress, or inconvenience that the situation has caused you.

LawNow Magazine

relating law to life

The Duty of Unions to Fairly Represent Their Members

January 5, 2015 By Peter Bowal and Stephen Moore

Introduction

About one-third of all Canadian workers, and most public sector employees, are members of unions, sometimes by choice and sometimes by legislation.  Unions offer greater collective power than an individual generally can marshal for the negotiation and administration of collective agreements.  Unionized employees surrender to the union the right to negotiate and contend on all work-related matters with the employer.  Such a transfer of power from workers to unions reposes significant responsibility in the hands of the union.  Therefore, it is essential that the union represent the best interests of its members.  This legal obligation is referred to as the union’s duty of fair representation of the members’ interests.

Legislation on Duties of Unions

Provincial Labour Relations Acts or Codes and the Canada Labour Code (for federally-regulated employees) contain many rules for unions.  For example, the Alberta Labour Relations Code prohibits unions from engaging in certain practices, such as using strong-arm tactics (“coercion, intimidation, threats, promises or undue influence of any kind”) against employers,  employers’ organizations, other unions and employees (section 151).

The union’s duty to fairly represent its members is also presented in the form of a prohibition in the legislation:

153(1) No trade union or person acting on behalf of a trade union shall deny an employee or former employee who is or was in the bargaining unit the right to be fairly represented by the trade union with respect to the employee’s or former employee’s rights under the collective agreement.

The Canada Labour Code is explicit in both the requirement of a union acting in a manner reflecting a duty of fair representation of any members,   …it is essential that the union represent the best interests of its members.  This legal obligation is referred to as the union’s duty of fair representation of the members’ interests. or any applicable employees, and in what constitutes fair representation.  Section 37 prohibits unions from acting in an arbitrary or discriminatory manner or in bad faith when representing employees under the applicable collective agreement.

The Common Law Meaning of Fair Representation

Like the corresponding duty upon employers to bargain with unions in good faith, the concept of fair representation is difficult to define and very broad. The terms “arbitrary,” “discriminatory,” and “bad faith” are core elements that arbitrators and courts consider in evaluating the duty of fair representation.

We turn now to the two main judicial decisions, both involving federally-regulated workers from Quebec, on the topic of fair representation.

Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 SCR 509

Guy Gagnon, a boat captain, asked his union to file grievances against his employer on the basis of his position transfer.  The union proceeded with the grievances through several stages.  However, on the basis of a third party recommendation, the union refused to take the grievance to arbitration.  Soon after, Gagnon was dismissed. He sued both his employer and his union for damages resulting from his transfer.  The issue was the extent to which a union must represent a union member.

The Supreme Court of Canada found in favour of the union and dismissed the claim for damages.  It set down the following principles:

1. The exclusive power conferred on a union to act as a spokesman for  employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit;

2. The right to take a grievance to arbitration is reserved to the union.  The employee does not have an absolute right to arbitration and the union enjoys considerable discretion;

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other;

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful; and

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

Of key importance is the principle that an employee does not have an absolute right to any advancement of its grievance and the union enjoys considerable discretion .

National Labor Relations Board

Representation case procedures.

The National Labor Relations Board’s final rule governing representation case procedures is designed to remove unnecessary barriers to the fair, efficient, and expeditious resolution of representation questions.  The amendments provide targeted solutions to discrete, specifically identified problems to enable the NLRB to better fulfill its duty under the National Labor Relations Act to resolve questions of representation appropriately.

Background On Representation Case Procedures

Representation petitions are filed by employees, unions, and employers seeking to have the NLRB conduct an election to determine if employees wish to be represented for purposes of collective bargaining with their employer.  The NLRB will investigate these petitions to determine if an election should be conducted and will direct an election, if appropriate.

In most instances, parties agree on the voting unit and other issues.  If parties do not agree, the NLRB’s regional office holds a pre-election hearing to determine whether an election should be conducted.  The NLRB’s regional office conducts the election and, if necessary, holds a post-election hearing to resolve challenges to voters’ eligibility and objections to the conduct of the election or conduct affecting the results of the election.  Parties can seek review from the five-member Board of regional determinations made before and after the election.

List Of Amendments

The following list summarizes the ways in which the 2023 rule (which will apply to representation petitions filed on or after December 26, 2023) amends aspects of a prior 2019 rule that had added substantial time to the representation case process.  In these ways, the 2023 rule restores provisions first adopted in 2014, but rescinded in 2019.

Allowing Pre-Election Hearings To Open More Quickly:

1.  Scheduling of Pre-Election Hearing – Pre-election hearings will generally be scheduled to open approximately 10 days sooner than under the 2019 rule.

2.  Postponement of Pre-Election Hearing – Regional directors will have more limited and defined discretion to postpone pre-election hearings than under the 2019 rule.

3.  Due Date for Nonpetitioning Party’s Statement of Position – A nonpetitioning party’s written response to the petition will generally be due approximately 3 days sooner than under the 2019 rule.

4.  Postponement of the Statement of Position – Regional directors will have more limited and defined discretion to postpone the due date for filing of a Statement of Position than under the 2019 rule. 

5.  Responsive Statement of Position – Petitioners will respond orally to the nonpetitioning party’s Statement of Position at the start of the pre-election hearing rather than, as under the 2019 rule, delaying the opening of the pre-election hearing to allow them to file and serve a responsive written Statement of Position.

Disseminating Important Election Information More Quickly:

6.  Posting and Distribution of Notice of Petition for Election – An employer will post and distribute the Notice of Petition for Election to inform its employees approximately 3 days sooner than under the 2019 rule. 

Making Hearings More Efficient:

7.  Litigation of Eligibility and Inclusion Issues – Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing.  Accordingly, a regional director will ordinarily defer litigation of eligibility and inclusion issues to the post-election stage, if those issues do not have to be resolved to determine if an election should be held.  In many cases, those issues will become moot because they end up not impacting the results of the election.  Thus, unnecessary and inefficient litigation that was required under the 2019 rule will be avoided.

8.  Briefing Following Pre- and Post-Election Hearings – All parties will be provided with an opportunity for oral argument before the close of the hearing.  Written briefs will be allowed only if the regional director (following pre-election hearings) or the hearing officer (following post-election hearings) determines they are necessary.  This will save time and resources as compared to the 2019 rule, which entitled parties to file briefs at least 5 business days following the close of hearings.

Ensuring That Elections Are Held More Quickly:

9.  Specification of Election Details in Decision and Direction of Election; Notice of Election – Regional directors will ordinarily specify the election details (the type, date(s), time(s), and location(s) of the election and the eligibility period) in the decision and direction of election and will ordinarily simultaneously transmit the Notice of Election with the decision and direction of election.  This will avoid unnecessary delay in setting the election details allowed under the 2019 rule, which emphasized regional directors’ discretion to convey the election details later in the process.

10.  Elimination of the 20-Business Day Waiting Period Between Issuance of the Decision and Direction of Election and the Election – Regional directors will schedule elections for “the earliest date practicable” after issuance of a decision and direction of election, rather than observing the 20-business day waiting period imposed by the 2019 rule.

NLRB REPRESENTATION CASE PROCEDURES

Final Rule published August 25, 2023

Comparison of Prior and New Representation Case Procedures

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duty of fair representation

• A responsibility placed upon a labor union to act in a fair and honest manner while representing the interests of employees within its collective bargaining unit
• The duty of fair representation is essential for building employee trust in labor unions.
• If a union fails in its duty of fair representation, it may face legal consequences.
• The labor union was criticized for not fulfilling its duty of fair representation.
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The Duty of Fair Representation: Individual Rights in the Collective Bargaining Process, or Squaring the Circle

Table of contents.

The Duty of Fair Representation: Individual Rights in the

Collective Bargaining Process, or Squaring the Circle

Margriet Zwarts*

In the author’s opinion, trade unions have become a social and economic force of criti- cal importance, capable of wielding a power over union members that rivals the power of employers. Until recently, the existence of and the potential for abuse – this power – has been largely ignored and trade unions have been allowed to justify the sacrifice of individual interests in the name of the collec- tivity. Only within the last few years have we seen legislative recognition of the individual union member’s right to control, however feebly, union behavior. Thus, the two legis- latures who share jurisdiction over labour relations in Qudbec have imposed a duty of fair representation on unions, leaving them free to decide when and why they will act, provided they do so fairly. The task of decid- ing what is fair has been given to the Cana- dian LabourRelations Board and the Tribun- al du travail. This has led both tribunals into an often crabbed and seemingly endless de- bate on how to reconcile individual interests with collective interests. They have, as a result, been forced to articulate implicitly or explicitly theirview of the role unions play in Quebec today. Regrettably, the Board and the Tribunal have decided that Canadian un- ions remain weak and that collective in- terests must be buttressed. The author con- cludes that the statutory duty of fair repre- sentation seems to have changed little and that we must await the day when a new compromise will be struck, with a more equitable and realistic balancing of indi- vidual and collective rights.

*M.A. (Tor.); B.C.L., LL.B. (McGill).

Selon l’auteur, les syndicats se sont trans- form6s en une force sociale et 6conomique d’importance capitale, capables d’exercer sur leur membres une autorit6 comparable A celle des employeurs. Jusqu’A tout r~cem- ment, l’existence de ce pouvoir ainsi que la possibilit6 d’abus qui en r6sulte, restaient essentiellement ignordes: On a ainsi permis aux syndicats dejustifier au nom de ]a collec- tivit6, le sacrifice d’intrrts individuels. Ce n’est que depuis quelques ann6es qu’on a vu une reconnaissance l6gislative du droit de chaque syndiqu6 d’exercer un droit de re- gard, si andmique soit-il, sur la conduite de son syndicat. De cette fagon, les deux 16- gislatures qui se partagent la juridiction sur les relations du travail au Qubec ont impos6 aux syndicats un devoir de juste reprrsenta- tion; ceux-ci garderont alors une discretion large qui devra toutefois 8tre exerc~e de fa- gon juste. On a charg6 le Conseil canadien des relations du travail et le Tribunal du travail de determiner la nature et Ia portde de ce devoir, ce qui devait les mener A s’aventu- rer dans une discussion prnible et vraisem- blablement interminable au sujet de la rrcon- ciliation des int6r~ts individuels et collectifs. Par consdquent, ils se sont vus forc6s de declarer, implicitement ou explicitement, leur perception du r6le contemporain des syndicats. Malheureusement, le Conseil et le Tribunal semblent croire que les syndicats canadiens demeurent faibles et que les int6- r~ts de Ia collectivit6 devront rester favoris~s avec plus de vigueur. L’auteur conclut que le devoir statutaire de juste repr6sentation n’a en fait chang6 que peu de choses et que nous devons des lors attendre la venue d’un nou- veau compromis qui saura dquilibrer de fa- on plus rraliste et dquitable les droits indivi- duels et collectifs.

REVUE DE DROIT DE McGILL,

Introduction I. H.

Enforcement of the Collective Agreement by the Individual The Duty of Fair Representation A. Preconditions Under the Quibec Labour Code: Discharge or

Disciplinary Sanction

B. Preconditions Under the Canada Labour Code: Intra-Union

C. The Duty of Fair Representation and Non-Members of the Bar-

gaining Unit

M. Scope of the Duty of Fair Representation A. Toward a Standard of Fair Behaviour

Introduction

“[A]w a muddle! Fro’ first to last, a muddle!” Thus the central character in Charles Dickens’ Hard Times ‘ sums up a life that unfolds in a desolate Lancashire mill town and that ends with his accidental death in an abandoned mine shaft – the black pit that aptly epitomizes the abyss of his blind despair. Like so many of Dickens’ characters, Stephen Blackpool dies as a victim to the will of a social institution created for no apparent purpose other than that of stifling individuality and keeping the masses of humanity downtrodden. In Hard Times, that villain social institution is the trade union.

When we first encounter Stephen he is an honest and steady workman, virtuous although long-suffering, and with an innate grace far exceeding that of his social betters. Despite his crippling marriage to a drunkard and the horror of his daily work, he has managed to salvage some human dignity from the hardships of his life as a factory hand. Then, the United Aggregate Tribunal arrives on the scene. Stephen makes and keeps a promise not to involve himself in the trade union movement. A union agitator, whose natural endowments mark him as a man “above the mass in little but the stage” on which he stands,2 manoeuvres Stephen’s fellow workers into punishing him

C. Dickens, Hard Times (New York: New American Library, 1961) 267. 21bid., 142.

DUTY OF FAIR REPRESENTATION

for his refusal to show solidarity. Having lost the sympathy of the union, Stephen proceeds to lose the sympathy of his employers. In rapid sequence, then, Stephen is fired, cast out of his community and dies. All of this, Dickens tries to persuade us, stems from the collusion between trade unionists and capitalists, neither of whom can tolerate independent thought or individual- ism within their midst. The evil that lies in the heart of trade unionism is, moreover, so insidious that even its victim, Stephen, fails to understand how or why his honourable desire to keep his word comes to be rewarded by social, then economic, and finally physical death.

Anti-union rhetoric, such as that found in Hard Times, was not of course uncommon in the early days of the trade union movement. What is prophetic in Dickens’ work, however, is his vision of the union as a social institution that would sacrifice the interests of the very worker it was supposed to represent. Curiously, the legal recognition of trade unions in the 1870’s did not bring forth any special legislation to curb the power unions might exercise over their members. Perhaps it was believed that the new legislation suffi- ciently circumscribed union power or that, in any case, the small craft unions typical of the era would never command enough support to be truly harmful to their own members. Cases such as Allen v. Flood’ reveal some judicial sympathy for the plight of the individual who tries to defy the union. But apart from the rare cases where the union flagrantly abused its power, 4 the courts normally showed themselves indifferent to what might happen within the union. For example, when considering the rights of an individual to be admitted to a union, the courts rather whimsically likened unions to gentle- men’s clubs;5 in neither case could the law force the members to associate with those whom they found odious. 6

3[1898] A.C. 1, [1895-9] All E.R. Rep. 52 (H.L.). In the end, however, Flood and his companions lost their case. But cf. Quinn v. Leathem [1901] A.C. 495, [1900-3] All E.R. Rep. 1 (H.L.).

4See Rigby v. Connol (1878) 14 Ch. D. 482, [1874-80] All E.R. Rep. 592. 5The English jurisprudence relating to gentlemen’s clubs is rich. Courts will intervene to force association only when a club abuses its normally wide discretion to control membership. See, e.g., Fisher v. Kean (1878) 11 Ch. D. 353; Dawkins v. Antrobus (1881) 17 Ch. D. 615, [1881-5] All E.R. Rep. 126. In Canada, club jurisprudence is rare but it seems from cases such as Andreas v. Edmonton Hospital Board [1944] 4 D.L.R. 747 (Alta S.C., App. Div.), that courts are loath to interfere with the free exercise of club members’ discretion in admitting new members. It appears also that, as in England, courts will step in to prevent expulsion only when discretion is abused. See, e.g., L’Acaddmie de Musique de Quebec v. Payment [1936] S.C.R. 323, [1936] 4 D.L.R. 279. 6See Weinberger v. Inglis [1919] A.C. 606 (H.L.). For a modem expression of the same attitude, see Faramus v. Film Artists’ Association [1963] 2 Q.B. 527,547, [1963] 1 All E.R. 636 (C.A.) per Upjohn L.J. On the whole, the courts were more concerned with the adverse effects of unionism on employers, rather than on the workers themselves. Compare the holding

McGILL LAW JOURNAL

As Dickens foretold, the trade union has become a social and economic institution of paramount importance, capable of exercising a power over union members that rivals the power of employers. Under the Canada Labour Code 7 and the Quebec Labour Code,8 a legally accredited union is given exclusive authority to negotiate and to administer the collective agreement that will determine the unionized worker’s terms and conditions of employ- ment. As a result, this worker can no longer hope to win special benefits for himself by dealing directly with his employer; he must assert his rights through the union. If the union refuses to negotiate a particular term or to advance a grievance, the individual affected is ostensibly left without re- course. If the union has secured a closed or union shop agreement, the individual may become even more dependent on his union for, unless the union agrees to admit him as a member, he can expect no job from an employer bound by the agreement. Unions have been vested with the power to act as lawmaker, judge and policeman of workers’ rights.

As the strength and importance of unions has grown, the criticisms voiced by Dickens in Hard Times have taken on a new relevance. It would be naive to believe that modem unions always exercise their powers with the utmost good faith and that unionists have somehow remained miraculously untainted by incompetence or corruption. A more serious charge levelled against unions is that they seem to have forgotten their role as the advocate of workers’ rights. Like the United Aggregate Tribunal, modem unions are accused of pursuing goals diametrically opposed to those of the working men they are mandated to represent. For example, the union may wish to husband its resources, whereas an individual worker who has been fired may want to see union funds spent on the arbitration of his dismissal. Because the union controls both the money and the arbitration procedure, the individual must yield to the decision of the union, no matter how meritorious his claim. Worse, the union may negotiate a superseniority clause to reward staunch supporters. The less ardent in the bargaining unit would be understandably aggrieved by such discriminatory treatment, but will not be able to complain because they are not parties to the negotiations. Worse still, a predominantly white union could negotiate the systematic phasing out of all those jobs

inAllen v. Flood, supra, note 3, with the decision in Quinn v. Leathem, supra, note 3. See also Russell v. Amalgamated Society of Carpenters and Joiners [1912] A.C. 421, [1911-13] All E.R. Rep. 550 (H.L.) for an excellent example of judicial indifference to the rights of union members. The Law Lords refused to recognize the legal status of a union for the purposes of an action to recover superannuation benefits owed by the union to a member of some forty years’ standing.

7R.S.C. 1970, c. L-1, s. 116, as am. S.C. 1972, c. 18, s. 1 replacing s. 116 with subs.

136(1) and adding s. 154.

8R.S.Q. 1977, c. C-27, s. 67.

hitherto held by blacks and unless a court sees fit to intervene, on the basis of fundamental rights legislation, as did the United States Supreme Court when confronted with such a fact pattern, 9 the black workers in the bargaining unit have no legal cause to complain. If courts and legislatures remain indifferent to individual rights within the union, the result may be that the modem union becomes as remote and unassailable as was the employer in the nineteenth century; once again, the individual will be powerless.

Although it is in the main overstated, the case against modem unionism does raise an intractable problem. Unionization involves the pursuit of collec- tive interests, often at the expense of individual interests. Whatever may have been the case in the past, the collective interests of present-day unions are determined democratically by the majority of its members. In the face of that majority will, no individual interests can, at least in theory, prevail. In the name of fairness, however, courts and legislatures sometimes derogate from democratic principles and will insist that individual interests should prevail. There are two methods whereby individual rights can be protected: either the worker is allowed to assert certain employment rights individually, or the union’s exclusive power is tempered by a duty of fair representation. In Qudbec, the recent jurisprudence and legislation indicate that the first method is no longer available. The underlying assumption of this development is, presumably, that the individual should not be allowed to disturb the equilib- rium established by our collective bargaining system. The union remains the watchdog of the collective agreement even though, at times, threats of penalties are necessary to make it behave as such. The courts and the lawmakers have unequivocally affirmed that labour relations involves two, and only two, parties: the union and the employer. The employee can only hope that the union will be required to act fairly. There remains one crucial question to be addressed: what meaning are we to ascribe to “fairness”? It may be perfectly clear that, in fairness, blacks should have the same rights as whites under a collective agreement, even if ninety percent of the membership opposes the granting of such rights. It is not quite so clear that, in fairness, every worker who is dismissed from his job has an absolute right to arbitrate the dismissal.

The fairness of union decisions can only be ascertained by weighing the relative urgency or merit of collective and individual interests. Even this test, however, does not provide a particularly helpful way of proceeding, since it presupposes that we have formed some understanding of the role unions play in modem Canadian society. If the modem-day union is seen as no different from any big business, then union members should presumably have rights at

9Steele v. Louisville & Nashville Railroad Co. 323 U.S. 192 (1944).

REVUE DE DROIT DE McGILL

least as powerful as those of a corporate shareholder: the member should have an absolute right to arbitrate in circumstances analogous to those which trigger the shareholder’s appraisal rights – that is, whenever the individual is in jeopardy of losing membership in the organization. But if the union remains, in our view, the vulnerable and humble champion of labour, we might be more inclined to let it exact tougher standards of discipline. To save money and energy for more worthy battles, the union should be left free to screen out frivolous or vexatious claims.

Although it shares certain qualities with both, the modem Canadian union is in fact neither big business nor grass-roots champion. It follows that neither corporate democracy nor military autocracy serves as an appropriate model. It is the failure, perhaps even the unwillingness, to establish an appropriate model that has plagued the case law on the duty of fair representa- tion. For without such a model, the task of reconciling the individual worker’s interests with those of his union becomes impossible.

Enforcement of the Collective Agreement by the Individual

Spectacular cases of union corruption-the stuff of Royal Commissions arise but rarely. 0 Much more frequently, the and yellow journalism – complaints brought against unions involve the same humdrum, and yet for the employee critical, set of facts: The employer sees fit to discipline an indi- vidual and the union refuses to arbitrate the individual’s claim of a breach of the collective agreement. The individual then turns to the courts, asking that they do justice according to his reading of the collective agreement. Before deciding on the merits of the case the courts must ask whether an individual can seek to enforce a collective agreement without the assistance of his union. Neither the Canada Labour Code nor the Qudbec Labour Code offers a straightforward answer to this preliminary question.” Both stipulate that

10See, e.g., Government of Canada, Report of the Industrial Inquiry Commission on the Disruption of Shipping on the Great Lakes, the St. Lawrence River System and Connecting Waters (1963).

“The Canada Labour Code, R.S.C. 1970, c. L-1, s. 132 used to read as follows: “Notwithstanding anything in this Part, any employee may present his personal grievance to his employer at any time.” There is no judicial authority on the meaning of this provision. Two readings, at least, are possible: the section either confers a right on the individual to process his own grievance or confers a privilege on the employer to negotiate for a collective agreement that allows individual processing of grievances. For a similar problem of interpretation, see NationalLaborRelationsAct of 1935, 9(a), 29 U.S.C. 159(a) (1970) and the debate between Cox, Rights Under a Labor Agreement (1956) 69 Harv. L. Rev. 601, 622 and Summers, Individual Rights in Collective Agreements and Arbitration (1962) 37 N.Y.U.L. Rev. 362, 378.

grievances must be submitted to arbitration according to the terms of the collective agreement or, in the absence of such terms, to an arbitrator selected by the parties to the agreement. Since the individual is not himself a party to the agreement,” he cannot settle with the employer on the choice of an arbitrator. Whatever right the individual may have to take his grievance to arbitration without the assistance of his union must, then, be found in the collective agreement. If, as is usually the case, the union is made the sole master of the arbitration process, the individual has a right to arbitrate a dispute arising from the collective agreement only in so far as the union is prepared to pursue that right for him. It can also be taken for granted that a court, when faced with an express clause in a collective agreement barring individual access to the arbitration process, will not assume jurisdiction to decide on the merits of the individual’s complaint.

This refusal to assume jurisdiction stems from an understandable reluct- ance to side-step the terms of a freely bargained and legally effective collec- tive agreement. It also makes logical sense, as long as we are prepared to accept that the benefits flowing from collective bargaining are best pursued collectively. More often than not, an individual complainant will ask the court either to act as though it were an arbitrator or to refer the dispute to arbitration. He wants not damages but reinstatement, or the substitution of some lesser penalty. The types of remedies that an arbitrator can order were not available at common law. Indeed, arbitration itself avails only because a union has been accredited or recognized and has negotiated with the employer for an arbitra- tion procedure. It follows from our initial assumption that arbitration is rightfully controlled by the union. Moreover, in the absence of an express clause in the collective agreement, we should presume that the union alone is responsible for the bringing of any dispute to arbitration. We might also note that there are cogent policy reasons for allowing the union to control the arbitration procedure. For example, to require the arbitration of every grie- vance would quickly drain even the most powerful and wealthy unions of money and energy; it would also tax the employer unnecessarily. 3

Yet certain job interests, such as seniority rights or the right not to be dismissed without just cause, are today considered fundamental. It might appear unduly harsh to deny the worker access to the enforcement procedure, especially if he himself proposes to bear the cost. If we decide once and for all that, absent a clause to the contrary in the collective agreement, the union is vested with the sole authority to control the arbitration procedure, we may be

2 See the definition of “parties” in Canada Labour Code, R.S.C. 1970, c. L-l, subs. 107(1) as am. S.C. 1972, c. 18, s. 1 and the definition of “collective agreement” in the QufbecLabour Code, R.S.Q. 1977, c. C-27, para. l(d).

“See Cox, supra, note 11, 625.

telling the individual employee that collective agreement guarantees of rights that he seniority and the like are nothing more than paper rights – possesses, but that are unenforceable except by the good offices of the union. Before we accept an irrebuttable presumption in favour of the union’s power to control the arbitration procedure, we should perhaps be allowed to consider whose interests are sacrificed by so doing.

Be that as it may, the Supreme Court decision in General Motors of Canada Ltd v. Brunet has made it amply clear that an irrebuttable presump- tion already exists. 4 Regrettably, the reasons for judgment have to do more with statutory and collective agreement interpretation than with policy. Claiming reinstatement and damages for lost wages, Brunet had sued both his employer and his union in the Quebec Superior Court for their failure to observe the collective agreement. The employer countered with a preliminary objection to the Court’s jurisdiction to hear complaints arising from an alleged breach of a collective agreement. Mr Justice Pigeon duly noted, as had Laskin C.J.C. in McGavin Toastmaster v. Ainscough ‘1 and Judson J. in Le Syndicat catholique des employ~s de Magasins de Quibec v. Cie PaquetLt6e,6 that all the rights enjoyed by a unionized employee against his employer must flow either from the collective agreement or from labour relations legislation. In effect, the statutory regime of collective bargaining, which applies once a bargaining unit is certified, sweeps away all rights the employee may have enjoyed under his individual contract of employment. 7 The logical conclu- sion, given this premise, is that these rights can be enforced legally only by the mechanism spelled out in the collective agreement or the relevant labour code. Because Brunet could point to no clear provision in either the agreement or the Qu6bec Labour Code granting the right to process grievances indi- vidually, Pigeon J. simply assumed that no such right existed. 8

The result of Brunet is that considerations such as the importance of the job interest at stake or the willingness of the employee to bear costs have become totally extraneous to the issue. Courts are spared the difficult task of sifting through the competing claims and facts of each case; they can rely strictly on the wording of the collective agreement. Moreover, if the collec- tive agreement is vague, any ambiguity will presumably be resolved neatly in favour of the union’s absolute right to control the arbitration procedure.

For those who distrust their union’s ability to represent their interests fairly or competently, Brunet appears to be an extremely harsh decision.

[1977] 2 S.C.R. 537, 548 [hereinafter Brunet]. 15[1976] 1 S.C.R. 718, (1975) 54 D.L.R. (3d) 1. 16 [1959 S.C.R. 206, 212, (1959) 18 D.L.R. (2d) 346. 17See Brunet, supra, note 14, 549. ‘-Ibid., 548.

Pigeon J. did indicate, however, that his decision might have differed had the union acted in bad faith.’ 9 Since Brunet came before the Supreme Court as a question of jurisdiction, we can assume Pigeon J. meant that the ordinary courts could decide an issue arising from the alleged breach of a collective agreement, provided that the plaintiff prove the union’s bad faith. This “bad faith exception” is an extremely narrow one, especially since the presumption of good faith places a heavy evidentiary burden on the employee. It also fails to provide any assistance to those who complain of simple negligence or imprudence.

Although it has closed the door firmly on the individual’s right to arbitrate, the Supreme Court has shown itself more liberal when considering the individual’s right to participate in an arbitration undertaken on his behalf. The leading case, Hoogendoorn v. Greening Metal Products & Screening Equipment Co., held that it would be a breach of natural justice to deny the right to be heard to any individual directly interested in an arbitration proceeding.” When is an individual directly interested? The majority in Hoogendoorn did not suggest that the right to participate existed only in individual or group grievances; it would seem that the individual may have the right to be heard even in a policy grievance, as long as his interests are affected by the outcome of the arbitration award.2′ For example, a dispute concerning the contracting-out of certain bargaining unit work will normally be resolved by way of a policy grievance. Yet, under Hoogendoorn, the worker whose job will disappear if the employer is allowed to contract-out should be given the right to participate in the arbitration of the grievance.

The dissenting opinion of Judson J. is based on a rigid distinction between policy and individual grievances. Because he could not show that the grievance was an individual one, the plaintiff in this case had no right to participate.2 Unfortunately, Qudbec cases following Hoogendoorn seem to have adopted Mr Justice Judson’s somewhat mechanical approach, and have not allowed employees affected by the outcome of the arbitration to partici- pate in what has been classified as a policy complaint.3 A union eager to avoid the effects of Hoogendoorn would be well advised to dress up disputes as policy grievances – a relatively easy task given the problems arbitrators and

’91bid., 548 and 552. 2[1968] S.C.R. 30, 39-40, (1968) 65 D.L.R. (2d) 641 [hereinafter Hoogendorn; cited to S.C.R.]. See also Re Bradley and Ottawa Professional Fire Fighters Association [1967] 2 O.R. 311, (1967) 63 D.L.R. (2d) 376 (C.A.).

2’Ibid., passim. “Ibid., 34. 23See, e.g., Blanchette v. Beaubien [1975] R.D.T. 43 (Qud. C.A.); Guay v. Lalancette

[1977] C.S. 725; The Danby Corp. v. Clinent [1978] C.S. 746.

courts have encountered in trying to pin down the exact nature of the policy grievance.’

The right to participate in arbitration is, of course, a cold comfort to those whose claims the union has dismissed peremptorily as frivolous or hopeless. In light of the decision in Brunet, Hoogendoorn’s union should simply have refused to arbitrate his claim altogether. It appears that Hoogen- doom’s claim was hopeless, the union at all times was acting bonafide, and a decision not to arbitrate would likely have been unimpeachable. In a sense, Hoogendoorn can be rationalized as simply one more case affirming the duty to follow the rules of natural justice during a hearing, even though such a hearing need not have been held at all.21 Nonetheless, it seems somewhat odd that the individual should have stronger rights if the union does act than if the union fails to act altogether.

Brunet notwithstanding, it should be noted that certain rights remain directly enforceable by the employee. These rights all involve some pecuni- ary claim, although, as Mr Justice Pigeon pointed out in Brunet, not all pecuniary claims are ipso facto enforceable individually. 6 The Supreme Court decision in Hamilton Street Railway v. Northcott27 indicates that the unionized employee can ask a court to enforce an arbitration award in his favour, even though this will require the court to calculate the amount of the award: Lower level courts have also affirmed repeatedly that the unionized worker has a right to proceed directly against his employer for unpaid wages.58 It is not clear what other pecuniary claims fall within this exception to the general rule that the union controls the enforcement procedure for rights arising from a collective agreement.

2’See E. Palmer, Collective Agreement Arbitration in Canada (1978), 139 and Supplement 1980 (1981) 30; Re Canadian Broadcasting Corporation and Association of Broadcast Employees and Technicians (1973) 4 L.A.C. (2d) 263.

‘ See, e.g., R. v. Johnson [1979] 2 W.W.R. 571 (Sask. C.A.); Re Clauson andSuperinten- dent of Motor-Vehicles (1977) 82 D.L.R. (3d) 656 (B.C. Co. Ct). See also dicta of the minority in Martineau & Butters v. Matsqui Institution Inmate Disciplinary Board [1978] 1 S.C.R. 118, (1977) 74 D.L.R. (3d) 1.

‘Brunet, supra, note 14, 542. 2[1967] S.C.R. 3, (1966) 58 D.L.R. (2d) 708. ‘See, e.g., Grottoli v. Lock & Son Ltd [1963] 2 O.R. 254, (1963) 39 D.L.R. (2d) 128 (H.C.) [hereinafter Grottoli]; L’Association des policiers de Giffard v. La Cite de Giffard [1968] B.R. 863; Arsenault v. Ville de Louisville [1977] C.P. 285. See also St Pierre v. Le Syndicatdesfonctionnairesprovinciaux du QubecInc. [1979] C.P. 67 [hereinafter St Pierre], where the employee claimed compensation for lost wages from his union. The union had blocked the plaintiff’s access to his office during the course of an illegal strike; the employer refused to pay wages for that period and the plaintiff then sued his union for the lost wages. The union raised as a defence that the plaintiff could only recover the wages through the mechanism set out in the collective agreement. Interestingly, the Court held that the union was a third party

Nor is it clear to what extent a court will be allowed to interpret a collective agreement as part of a claim for unpaid wages. Of Mr Justice McRuer’s judgment in Grottoli v. Lock & Son Ltd,29 Pigeon J. had this to say: All that was decided… was that nothing prevents an employee from bringing an action to recover unpaid wages. It is now well established that this is true only in so far as it is simply a matter of unpaid wages. If there is in fact a dispute over the interpretation or application of the collective agreement, the provision requiring arbitration is a bar to such action and must be dismissed.”

It appears, then, that the courts may settle straightforward, but not disputed, cases. But what if one of the parties decides to dispute the perfectly obvious? Furthermore, if there were no dispute, would the employee be asking a court of law to order the payment of back wages? Is the employee whose union refuses to represent him in a claim for back wages effectively without direct recourse against his employer? Surely, the jurisdiction of the court to hear a claim for unpaid wages does not hang on the mere existence of a dispute, however misguided or even frivolous that dispute may be. Let us assume, then, that the court has at the very least the jurisdiction to determine the prima facie validity of the dispute; this would entail an examination of the terms of the collective agreement. It may well be that such an examination raises complicated and perplexing questions of law, best decided by an arbitrator. On the other hand, the merit of the employee’s claim may be readily apparent on the face of the collective agreement. Whatever the case, the court is now engaged in interpreting the collective agreement, if only to conclude that it raises questions beyond the court’s competence or that it explicitly spells out the individual’s rights. Yet Brunet tells us that in no circumstances does the court have jurisdiction to interpret a collective agreement. We cannot assume that the court has the power to consider even the prima facie validity of a dispute. If we follow Brunet to its logical limits, we discover that all the earlier jurisprudence on the individual’s right to claim back wages was wrong and that, in truth, the court has no jurisdiction whatsoever to entertain such complaints.”

to that agreement for the purposes of the suit in delict, and so could not rely on the terms of the agreement to bar the plaintiff’s claim. The Court stated at 73: “Il appert A la Cour… que l’intim6 n’dtait que le repr6sentant des fonctionnaires et que, comme entit6 distincte, il n’a pas acquis, notamment en ce qui concerne les salarids, d’autre droit que celui d’agir comme repr6sentant des fonctionnaires. Un syndicat ne saurait r~clamer pour son binifice personnel un avantage dfi L un de ses membres en vertu de Ia convention. … Dans un conflit oil il n’agirait pas comme repr6sentant desdits employ6s, mais bien pour son propre compte, la convention collective devra 8tre consid6r6e comme res inter alios acta.”

19Ibid. 1″Brunet, supra, note 14, 551-2. “1 In his article, Rights Under a LaborAgreement, supra, note 11, Archibald Cox provides a more rational basis for distinguishing personal claims from claims that can only be pursued by the union. According to Cox, we must ask whether the employee could reasonably have

We are left only with arbitration awards, which the individual can enforce directly against his employer because the dispute that gave rise to his claim has been settled. Even here it could be argued, albeit weakly, that the individual is statutorily barred from pursuing judicial enforcement. Section 93 of the Qudbec Labour Code reads as follows:

93. The award shall have the effect of a collective agreement signed by the parties. It may be executed under the authority of a court of competent jurisdiction at the suit of a party who shall not be obliged to implead the person for whose benefit he is acting.”

It may be that s. 93 subrogates the union in the employee’s rights, with the effect that the individual himself cannot ask for judicial enforcement. More likely, however, s. 93 should be compared with s. 69, which has been read to create no subrogation whatsoever:

69. A certified association may exercise all the recourses which the collective agreement grants to each employee whom it represents without being required to prove that the interested party has assigned his claim.”

In Arsenault v. Ville de Louisville I the Court held that, because s. 69 uses no imperative or specific language to create a legal subrogation, we must assume the employee himself remains master of his own rights – at least in so far as those rights have been settled by arbitration. Section 69 is permissive only: the union may pursue the recourses otherwise available to the individual employee, but it may do so only if the employee wishes the union to act on his behalf. If he does not so wish, the employee keeps his right to enforce personally. The Court concluded that the individual’s right to enforce is so sacrosanct that it lives on, even after the union has ostensibly settled the matter. Thus, an employer who has paid a union the amount of an arbitration

expected to be paid the sum claimed. If so, he may sue the employer directly. But if his claim arises from a difficult and contorted reading of the collective agreement, the union alone can pursue the claim. In short, the issue is one of reliance interests: the court can award damages for the loss of reasonably expected benefits, not for the loss of an unforeseeable windfall. Cox gives an example of such a windfall at 606-7: a carpenter is called on Labour Day to do maintenance work on a high roof; he works from 7:00 A.M. until 7:00 P.M. to do the job. Underthe collective agreement, the normal workday extends from 8:00 A.M. to 5:00 P.M. All work in excess of eight hours a day, as well as work done outside the normal scheduled workday, is paid at double time. Work performed at great heights is to be paid at double time; finally, work performed on statutory holidays is also paid at double time. The carpenter’s normal hourly pay is $2.00, yet he could argue that he is owed $8.00 for each hour between 8:00 A.M. and 5:00 P.M. and $16.00 for each hour worked before 8:00 A.M. and after 5:00 P.M.

31R.S.Q. 1977, c. C-27, s. 93. [The English text is cited throughout. However, the French

text will be cited when it is critical to an understanding of a tribunal decision.].

33R.S.Q. 1977, c. C-27, s. 69. -“Supra, note 28.

award may subsequently find himself liable to the employee for the same amount. This conclusion is not entirely justifiable in the light of s. 93, which suggests that a court order in favour of the union would protect the employer from the subsequent suit of the individual employee. If the union can obtain a court order, one effect of which is to bar any subsequent action by the employee, it would seem likely that the union could also settle the matter informally but irrevocably. Nonetheless, the Court inArsenault was probably right in pointing to the permissive nature of s. 69 and, by analogy, s. 93: both allow the union to enforce an individual’s recourses, but neither denies to the individual a concurrent right to enforce.

The principle articulated in Brunet has been embraced warmly by Qu6bec courts 5.3 In particular, special mention should be made of the recent Court of Appeal decision in Hotte v. Bombardier LtDe,36 which effectively makes the individual more dependent than ever upon his union. The union had taken Hotte’s grievance to arbitration, but the award was not in his favour. He thereupon proceeded to the Superior Court, without the assistance of his union, for a writ of evocation. Evocation is available, according to art. 846 of the Code of Civil Procedure, only at the demand of one of the parties to the case evoked. Hotte was not, and indeed could not be, according to the collective agreement, a party to the arbitration proceedings and so his applica- tion was dismissed. 37 This simple, but neat, solution accords perfectly with the conclusions of Brunet, a decision to which Mr Justice Melangon does not refer. If the individual has no right to see his grievance arbitrated, why should he have any right to ask for evocation of an unfavourable arbitration award? On the other hand, one unfortunate effect of Hotte may be that Hoogen- doom has only limited applicability in Qudbec. If there is a duty to arbitrate according to the dictates of natural justice, that duty is most properly enforced by way of evocation. But if the only person who might care to see Hoogen- doom applied – is not a party to the arbitration then, under Hotte, evocation is not available. In short, the Qu6bec employee may find that he has a right, but no remedy. 38

the individual employee –

“See, e.g., The Danby Corp. v. Climent, supra, note 23; Dayon v. Cournoyer [1974] C.S. 316; Gagni v. Association des pompiers de Montrial Inc. , C.A. (Montral, 500-09-001, 106-772) 20 February 1978; Venditelli v. La citg de Westmount [1980] C.A. 49.

[t1981] C.A. 376 [hereinafter Hotte]. 37Ibid., 383. -This is not strictly accurate. The individual may yet have a remedy in injunction, possibly a writ of mandamus, or even a declaratory motion. His most assured remedy is likely an injunction. Mandamus, according to art. 844 of the Qudbec Code of Civil Procedure, depends upon the existence of “a duty or an act which is not of a purely private nature”; it is not at all clear whether an arbitrator is under such a duty. On the other hand, art. 453 C.C.P. makes a declaratory motion depend on a “right, power or obligation which he [the applicant] may have

In fairness, it should be added that the Court in Hotte never indicated that the complainant was bereft of all remedy. Melangon J.A. pointed out careful- ly that other, more appropriate, remedies may exist at law but he failed to name those remedies. Presumably he had in mind a direct recourse against the union. According to Melangon J.A., Hotte’s complaint is based ultimately on the union’s failure to act on his behalf; let Hotte, then, make out a case if he can against the union in, say, a writ of mandamus.39

As long as one agrees with the result of Brunet, recourse against the union does indeed seem like a logical way of proceeding. The underlying assumption of the case can be put simply: We cannot allow the individual to proceed against his employer, because that would destroy the integrity of a system of labour law built on the existence of two parties, the union and the employer. The individual can in no circumstances hope to bypass the union, which is vested with the exclusive authority to represent his interests. If he could, the solidarity so necessary for effective union action might be jeopar- dized. The courts are not interested in the importance of the job interest at stake, nor in whether the individual agrees to pay for his own arbitration, for the collective agreement serves as conclusive evidence of the individual’s rights.

But no union should be able to shield itself behind a collective agreement if its failure to arbitrate is capricious or negligent. The absolute power to control the arbitration procedure should be tempered by a duty to act fairly and responsibly. Canadian courts have decided that fairness can be best achieved not by opening up the arbitration procedure to the individual, but by creating more powerful recourses against the union. Thus, Qudbec courts have im- posed on unions the duty to represent fairly the interests of all the members in the bargaining unit.40 Legislatures have followed suit and have imposed

under a contract, will or any other written instrument”. One would have to argue, therefore, that the right to participate, as enunciated in Hoogendoorn, supra, note 20, is a right under a written instrument (i.e. the collective agreement).

9The classic Qudbec case on the availability of mandamus to review union decisions is Seafarer’s International Union of North America (Canadian District) v. Stern [1961] S.C.R. 682, (1961) 29 D.L.R. (2d) 29 [hereinafter Stern].

*SeeBrais v. Association des contremaitres de la C.E.C.M., C.S. (Montreal 500-813-850) 29 May 1972; Boisvert v. Syndicat national des employis de garage de Quebec Inc., C.S. (Quebec 200-05-001 802-763) 4 September 1980. See also the discussion of the unreported Herder and Hamilton cases in L’Administration de Pilotage des Laurentides et la Guilde de la marine marchande du Canada v. Gagnon [1981] C.A. 431. All of these cases find inspiration in the leading American decision of Vaca v. Sipes 386 U.S. 171 (1967), which was first accepted by a Canadian court in Fisher v. Pemberton (1969) 8 D.L.R. (3d) 521, (1969) 72 W.W.R. 575 (B.C.S.C.).

similar statutory duties.4

Cases such as Brunet might have been used to resolve the competing interests of the employee and his union in controlling the collective agreement enforcement procedure. They were not used and, in the end, the task of resolving these interests has been shifted to another forum, another cause of action. 42 The union’s power to control the enforcement procedure is control- led by the duty to represent fairly. In the name of fair representation, therefore, courts and labour boards have been permitted to chip away at the monolith of union power created by labour relations law and confirmed by Brunet. In these suits or complaints brought against the union, courts and boards can engage in the kind of flexible and subtle analysis that could not be undertaken in Brunet. How effective that analysis is, depends largely on how we define the scope of the duty to represent fairly.

Even though Qudbec and Canadian legislation now provides for a statutory duty of fair representation, some employees might have preferred to pursue their rights before the Superior Court. Under the Quebec Labour Code, the only remedy available to a complainant is arbitration. The Tribunal du Travail has no jurisdiction to award costs or damages for lost wages: See Boutin v. Le Syndicat international des travailleurs en glectricitg [1979] T.T. 91, 96-7; Rivest v. Association internationale despompiers, section locale 1121 [1980] T.T. 276. The Superior Court, however, can order full compensation for any damage suffered. Cf. Canada Labour Code, R.S.C. 1970, c. L-1 as am. S.C. 1972, s. I adding s. 189, which allows the Canada Labour Relations Board to fashion remedies as it deems appropriate. For examples of the types of awards the Board has made, see Massicotte and Teamsters Union, Local 938 [1980] 1 Can. L.R.B.R. 427, cert. denied in Teamsters Union, Local 938 and Massicotte (1980) 34 N.R. 611 (F.C.A.), affd (1982) 134 D.L.R. (3d) 385 (S.C.C.); Cameron and Canadian Brotherhood of Railway, Transport and General Workers [1981] 1 Can. L.R.B.R. 273, cert. denied in Re Via Rail Canada Inc. and Cameron (1981) 125 D.L.R. (3d) 254 (F.C.A.).

4 1 Canada Labour Code, R.S.C. 1970, c. L-1 as am. S.C. 1977-78, c. 27, s. 49 adding s. 136.1; QudbecLabour Code, R.S.Q. 1964, c. 141 as am. S.Q. 1977, c. 41, s. 28 adding subs. 38(b) now consolidated R.S.Q. 1977, c. C-27, s. 47.2.

“An alternative approach may be found in the classic works of three American authors: Cox, supra, note 11; Summers, supra, note 11 and Union Powers and Workers’ Rights (1951) 49 Mich. L. Rev. 805; and Blunrosen, Legal Protection for Critical Job Interests: Union- Management Authority versus Employee Autonomy (1959) 13 Rutgers L. Rev. 631 and The Worker and Three Phases of Unionism: Administrative and Judicial Control of the Worker- Union Relationship (1963) 61 Mich. L. Rev. 1435. Of the three, Cox seems the least prepared to erode the union’s absolute power to administer the collective agreement. Even he, however, accepts that certain so-called property rights remain vested in the individual and can be pursued in the ordinary courts. By contrast, Summers maintains that the individual should always be permitted to act on his own behalf when a union withholds its support. Blumrosen adopts the middle ground. For him, the individual can himself enforce any claim that involves a critical job interest: e.g., dismissals, severe disciplinary sanctions, seniority grievances, and unpaid wages.

H. The Duty of Fair Representation

Preconditions Under the Quebec Labour Code: Discharge or Disci- plinary Sanction

Even the most cursory exahnination of the statutory duty of fair repre- sentation imposed by the Canada and Qu6bec Labour Codes will reveal a fundamental difference in approach. Section 136.1 of the Canada Labour Code provides for a positive duty in the following terms:

Where a trade union is the bargaining agent for a bargaining unit, the trade union and every representative of the trade union shall represent, fairly and without discrimination, all employees in the bargaining unit. 43

Section 47.2 of the Quebec Labour Code, however, speaks in negative terms: A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members.”

Notwithstanding certain dicta in a Canada Labour Relations Board decision,” the effect of this difference in phrasing may be more apparent than real. What distinguishes the duty of fair representation under the Quebec Labour Cade is not merely the wording of the statutory provisionper se; it is the three sections that follow s. 47.2:

47.3. If an employee who has been the subject of dismissal or of a disciplinary sanction believes that the certified association is, in that respect, violating section 47.2, he shall, if he wishes to invoke this section, submit a written complaint to the Minister within six months. The Minister shall appoint an investigator who shall endeavour to settle the dispute to the satisfaction of the interested parties and of the certified association. 47.4 If no settlement has been reached within fifteen days of the appointment of the investigator or if the association does not carry out the agreement, the employee shall, if he wishes to invoke section 47.2, apply to the Court within the fifteen ensuing days to request that his claim be referred to arbitration. 47.5 If the Court considers that the association has violated section 47.2, it may authorize the employee to submit his claim to an arbitrator appointed by the Minister for decision in the manner provided for in the collective aggreement, as in the case of a grievance. Sections 100 to 101.10 apply mutatis mutandis. The association shall pay the employee’s costs. The Court may, in addition, make any other order it considers necessary in the circumstances.46

41R.S.C. 1970, c. L-1 as am. S.C. 1977-78, c. 27, s. 49. 44R.S.Q. 1977, c. C-27, s. 47.2. 4 Laplante and Cartage and Miscellaneous Employee’s Union, Local 931 [1981] 3 Can.

L.R.B.R. 52 [hereinafter Laplante].

“R.S.Q. 1977, c. C-27, ss 47.3-47.5.

If the complaint does not concern a dismissal or a disciplinary sanction, the employee may yet have recourse to s. 47.2, but in that case s. 144 alone determines the penalty: the union may suffer a fine of $100 to $500 for its failure to represent adequately the employee’s best interests. This penalty is derisory, if not meaningless, to most employees. It is highly unlikely that a worker who, for example, has suffered from the lackadaisical treatment of his claim to seniority will be much consoled by the imposition of a $500 fine. Such a fine may spur the union to act more equitably or competently in future, but does not solve the immediate problem: does the worker have a valid claim to seniority? What the worker wants is arbitration. Yet the gateway to arbitration is through s. 47.3 et seq. The worker must not only make out a case that the union acted improperly; he must also show that the union’s improprie- ty occurred in the context of a dismissal or a disciplinary sanction. 47 We may note in passing that any disciplinary sanction, no matter how trivial, may give rise to s. 47.3 liability. This result is bizarre, especially because the section excludes from its scope certain job interests that are surely more critical than those involved in a minor disciplinary sanction. It would appear that a worker could conceivably use s. 47.3 et seq. to force the arbitration of a verbal reprimand, even though he can never hope to do so with regard to a seniority dispute.

Since a meaningful remedy for a breach of s. 47.2 is available only under s. 47.3, the meaning of the term “un renvoi ou une sanction disciplinaire” has become crucial.48 An initial grammatical difficulty as to whether the adjective “disciplinaire” modifies the noun “renvoi” has been resolved in favour of a reading that gives the broadest meaning possible to “renvoi”. Briefly, a dismissal is any action that deprives the employee of his job; it need not be disciplinary in nature, and can result from events such as the non-renewal of a contract,49 a layoff or even a transfer from one work place to another.50

,”In other words, the Quebec Code has incorporated a somewhat twisted version of Blumrosen’s methodology: only two critical job interests – have been singled out for special protection. For the rest, the individual must apparently submit himself to the union’s will.

dismissal and discipline –

“The French version of s. 47.3 of the Quebec Labour Code, R.S.Q. 1977 c. C-27 is as

47.3 Si un salari6 qui a subi un renvoi ou une sanction disciplinaire croit que r’association accr6ditde viole 4 cette occasion l’article 47.2, il doit, s’il veut se prrvaloir de cet article, porter plainte par 6crit au ministre dans les six mois. Le ministre nomme un enquateur qui la satisfaction de l’intdress6 et de l’association accrdditde. tente de rdgler la plainte ‘9See Bordeleau v. Syndicat des professeurs du College du Nord-Ouest [1979] T.T. 133. The holding in this case may, however, hang on the crucial fact that Bordeleau’s contract was to be renewed automatically, unless the employer gave prior notice. In light ofProcureur gingral du Qubec v. Tribunal du Travail [1978] C.A. 103, there may be no dismissal, within the meaning of s. 47.3, if the collective agreement stipulated that the term of employment was of limited duration with no obligation on the part of the employer to renew.

-‘See Guinette v. L’Union des chauffeurs de camions, hommes d’entrep6ts et autres”

More problematic is the meaning of the term “sanction disciplinaire”. At first blush, s. 47.3 does not appear to restrict disciplinary sanctions to those imposed by an employer; it may also cover union disciplinary sanctions such as expulsion or suspension. The success of an argument in favour of the individual’s right to arbitrate intra-union disputes depends largely on the effect of s. 47.5. It is this section which empowers the Tribunal du Travail to order the arbitration of the individual’s claim, in the event that a union has mismanaged a dismissal or disciplinary sanction. Whereas the French version of s. 47.5 speaks of arbitration “selon la convention collective, comme s’il s’agissait d’un grief”, the English version refers to “the manner provided for in the collective agreement, as in the case of a grievance”. The French version seems to suggest that the individual’s claim must arise from a dispute con- cerning the application or meaning of that collective agreement. On the other hand, the English version points to an alternative, if somewhat strained, interpretation. Perhaps it is only the manner, and not the substance, of the arbitration that must be determined by reference to the collective agreement. If this interpretation is correct, an intra-union dispute, which normally arises from a disagreement over the terms of the union’s constitution, can be arbitrated by virtue of s. 47.5. Support for this interpretation can be found in the draftman’s apparently careful distinction between claims under s. 47.5 and grievances under the collective agreement. If a s. 47.5 claim is substan- tively the same as a grievance (which, by definition, is a dispute concerning the meaning and effect of a collective agreement), then why was it necessary to add that a claim must be settled “as in the case of a grievance”? Seemingly, a claim is something broader than a grievance, something that need not concern rights arising from the collective agreement.

This argument is quixotic and was peremptorily rejected in Imbeau v. Syndicat des professeurs du College de Maisonneuve,5l the first case to consider the meaning of disciplinary sanctions as used in s. 47.3. The complainant, Imbeau, and eight fellow teachers at the College de Maison- neuve had refused to participate in what they rightly thought to be an illegal strike. The union retaliated in much the same way as Dickens’ United Aggregate Tribunal might have done – it promptly expelled the nine teachers .52 An intra-union dispute is best resolved in proceedings less adversa-

ouvriers, local 106 [1979] T.T. 409. It might be noted that the English version of s. 47.3 does not pose the same problem as the French version: s. 47.3 applies if there has been a “dismissal or… a disciplinary sanction”, and so it is clear that the dismissal need not be punitive.

5 [1979] T.T. 340 [hereinafter Imbeau]. 1If Imbeau had also been dismissed, as a result of a closed or union shop agreement, s. 47.3 might have been available. The union would in that case have acted in bad faith with regard to his dismissal. The problem here, however, is that arbitration would not serve as a particularly

rial, not to mention less time-consuming and costly, than those of the courts. Indeed, arbitration would appear to be the most appropriate way of settling such disputes. Arbitration is expeditious, informal and conciliatory. 3 Small wonder, then, that Imbeau turned to the Tribunal du Travail, asking it to use its powers under s. 47.5 to appoint an arbitrator. His application was, however, rejected for the simple reason that s. 47.5 cannot be stretched to protect individuals in intra-union disputes.

Judge Auclair began by stressing that s. 47.5 must be read with ss 47.2 through 47.4; that is, before the Tribunal du Travail can nominate an arbitra- tor to settle a claim, it must appear that the union acted improperly with regard to a dismissal or a disciplinary sanction. Nothing in s. 47.5 expressly stipu- lates that the claim submitted to the arbitrator arises from the collective agreement. However,

ce m~me article prdcise que la reclamation du salarid6 peut 8tre soumise un arbitre pour d6cision selon la convention collective. Cette mention indique bien que le l6gislateur voit

helpful remedy. The arbitration will presumably concern the dismissal, not the expulsion, and that should be unimpeachable as long as the employer acted within the limits of the collective agreement. The employer could have resisted the union’s demand of dismissal by invoking s. 63 of the Qu6bec Labour Code, R.S.Q. 1977, c. C-27. The employer is not bound, under a closed or union shop agreement, to dismiss an expelled or suspended union member unless that member had been employed (i.e. semble hired) contrary to a term of the collective agreement or the member participated, at the behest of the employer, in activities against the union. There is no reported decision to date on this section. Reference may be had to the Ontario Labour Relations Board decision on a similar section of the relevant Ontario legislation in Walker and McNally Freight-Ways (1964) 64 (3) C.L.L.C., para. 16,011, which suggests that the section was intended to protect the individual from dismissal for exercising a right under theAct. Thus, participation in the election campaign of an unsuccessful candidate for the local presidency cannot be used to ask for the dismissal of an employee. Notice however, that s. 63 of the Qu6bec Labour Code cannot be invoked by the employee himself; it is the employer who is not bound to dismiss and thus presumably it is the employer alone who has standing under s. 63. Nonetheless, an arbitrator who is asked to consider a dismissal pursuant to a closed shop agreement may impose on an employer the obligation to verify the union’s bonafides before dismissing an expelled or suspended union member: see, e.g., Re International Ass’n of Machinists (1958) 8 L.A.C. 116 per Laskin; Re Toronto Printing Pressmen & Assistants’ Union No. 10 (1958) 8 L.A.C. 251 per Laskin.

13 For some examples of the types of remedies that might be available in the ordinary courts, see Stern, supra, note 39 (mandamus to set aside the union’s decision to suspend and fine a member); St Pierre, supra, note 28 (action in damages to recover wages lost for a period during which the union’s illegal strike barred the plaintiff’s access to his work); Allardv. Congrs du Travail du Canada [1976] R.D.T. 533 (interlocutory injunction ordering the union to desist in its attempts to bar a vote of the membership on a motion to withdraw an application for certification); La Fraternitd unie des charpentiers menuisiers, local 134 v. Le Syndicat national de la construction Hauterive [1977] C.S. 1008 (direct action in nullity of a union resolution to charge preferential membership dues for former F.T.Q., but not C.S.N., mem- bers).

la convention collective ou ce qui tient lieu Idgalement, comme la source de ]a rdclama- tion. Un arbitre ne peut d6cider selon la convention une r6clamation qui n’en d6coule pas.

Accordingly, if the claim to be arbitrated must arise from the collective agreement, so must the disciplinary sanction to which that claim relates. Because the only party who can discipline for breaches of the collective agreement is the employer, the discipline of which s. 47.3 speaks must be imposed by the employer. 5 Why is it, then, that s. 47.5 seems to distinguish between claims and grievances? The answer that Imbeau suggests is logical, although somewhat contrived. A grievance concerns a dispute between the employer and the union. But if an employee has had to resort to s. 47.2 et seq., it is quite obvious that the union wants to dissociate itself from the dispute. A s. 47.5 claim, therefore, concerns only the employee and his employer. In other words, the difference between the two terms lies in the parties to the dispute, not in the substantive issues involved. 6

To the reasons given in Imbeau for rejecting the complainant’s applica- tion, we may add one other. However suitable in the abstract arbitration may be as a way to settle intra-union disputes, arbitration in accordance with the terms of a collective agreement is hardly a satisfactory way of so doing. It would likely be impossible in most cases to adapt to intra-union disputes a procedure meant to accommodate the interests of employer and union in collective agreement disputes.

Preconditions Under the Canada Labour Code: Intra-Union Disputes

There can be little doubt that s. 136.1 of the Canada Labour Code has a far broader scope than does the duty of fair representation under the Qu6bec Labour Code17 The Canada Code sets no express limits to the type of job interests protected, leaving it to the Canada Labour Relations Board to decide on the facts of each case whether the union acted properly given the job interest at stake. Matters such as seniority claims, payment for work done,

5’Imbeau, supra, note 51, 344. 51Ibid., 344-5. Judge Auclair seems to forget that s. 47.2 can stand alone, provided that the complainant is seeking a remedy under s. 144 and not arbitration. There is nothing in s. 47.2, if read separately from ss 47.2-47.5, that leads us inexorably to the conclusion reached in Imbeau. It would seem, therefore, that a union member can still invoke s. 47.2 and s. 144 if he has been improperly expelled from his union. Imbeau simply precludes the use of arbitration to settle the differences between union and member.

Ib9d., 345. -1R.S.C. 1970, c. L-1 as am. S.C. 1977-78, c. 27, s. 49.

work schedules, and job descriptions can all conceivably form the substance of a s. 136.1 complaint. Moreover, the Board has jurisdiction to hear com- plaints arising from the union’s alleged conduct during collective bargaining, 8 the processing of an unfair labour practice, 9 mid-contract negotiations,’ or any other action the union has undertaken on behalf of bargaining unit members.6

Yet the Canada Labour Relations Board may have gone even further than the Tribunal du Travail in excluding internal union affairs from the scope of the statutory duty of fair representation. According to the Board, internal affairs include the appeal mechanism provided for in the union’s constitution and by-laws – a mechanism which can normally be used to force a reconsid- eration of the union’s decision concerning a grievance. If, therefore, a member decides first to appeal internally a refusal to arbitrate his grievance, he may find himself forever barred from invoking s. 136.1 of the Code. The few Labour Board decisions on point are regrettably difficult to follow, and their reasoning is not entirely convincing. 2 Suffice it to note that the Board will scrutinize the internal mechanisms of the union only

to the extent they relate directly to and form part of the bargained relationship between the union and employer and if they are accessible to all employees in the bargaining unit…

“aThere is no Canada Labour Relations Board decision specifically on this point, but reference may be had to Group of Seagram’s Employees and Distillery, Brewery, Winery, Soft Drink & Allied Workers, Local 604 [1978] 1 Can. L.R.B.R. 375 (B.C.L.R.B.); Group of Employees of the Board of School Trustees of School District No. 39 [1981] 1 Can. L.R.B.R. 267 (B.C.L.R.B.); Cook and International Woodworkers of America, Local 1-184 [1981] 1 Can. L.R.B.R. 413 (Sask. L.R.B.).

“Again, there is no Canada Labour Relations Board decision on point, but see Hebert- Vaillant and Canadian Union of Public Employees, Local 2327 [1981] 2 Can. L.R.B.R. 449. ‘See Larmour and Brotherhood of Locomotive Engineers [1980] 3 Can. L.R.B.R. 407

[hereinafter Larmour].

61The statutory duty does not, however, extend beyond the employer-union-employee relationship created by labour relations legislation. See, e.g., Morgan and Registered Psychiatric Nurses’ Association of British Columbia [1980] 1 Can. L.R.B.R. 441 (B.C.L.R.B.) (no duty to represent bargaining unit member in coroner’s inquest); Wood v. Napanese Industries Ltd [1972] O.L.R.B. Rep. 353 (no duty to represent before Workman’s Compensation Board).

6See Lochner and Canadian Brotherhood of Railway, Transport and General Workers [1980] 1 Can. L.R.B.R. 149 [hereinafter Lochner]; Huggins and Canadian Brotherhood of Railway, Transport and General Workers [1980] 1 Can. L.R.B.R. 364 [hereinafter Huggins]. For a similar result in Ontario, see Britnell and International Union of Electrical Workers, Local 523 [1974] 1 Can. L.R.B.R. 319 (O.L.R.B.). But see Pap and International Union of Electrical Workers, Local 523 [1974] 1 Can. L.R.B.R. 74 (O.L.R.B.).

6Lochner, ibid., 156.

Because union members alone have access to the internal union appeal mechanism, the Board will limit its examination to the fairness of first instance decisions and not intervene in appeal decisions.

Despite the carefully written reasons for judgment in cases such as Lochner or Huggins,64 the basis of this distinction between appeal and first instance decisions remains obscure and puzzling. We can perhaps understand why a labour relations board might hesitate to use s. 136.1 to interfere in an intra-union dispute such as that involved in Imbeau. In that case, the dispute had nothing to do with the employer-employee relationship. But in Lochner and Huggins, the Board was asked to review the fairness of an appeal decision on a union’s refusal to process a member’s grievance. Such an appeal, like a first instance decision, “relate[s] directly to and form[s] part of the bargained relationship between the union and employer”.6 5 It decides once and for all whether the union will undertake to pursue rights claimed by the individual under the collective agreement. It is true that only union members have access to the internal appeal mechanism, but this in itself should not serve to justify the rejection ofa s. 136.1 complaint. The appeal procedure may be as corrupt or inadequate as the procedure followed at first instance. It seems reasonable to expect, therefore, that the individual should have recourse to s. 136.1 to remedy what he believes to be a dereliction of the union’s duty to represent his interests in the observance of the collective agreement.

Be that as it may, the Board’s reluctance to interfere in such cases may yet be vindicated on constitutional grounds. An examination of the fairness of the appeal mechanism, which the union’s constitution and by-laws has brought into being, may usurp the provinces’ jurisdiction over property and civil rights.’ In addition, the Canada Labour Relations Board has suggested

‘Lochner, ibid.; and Huggins, supra, note 62. ‘Lochner, ibid., 156. ‘It should be noted that subss 185(e)-(h) of the Canada Labour Code R.S.C. 1970, c. L-1 as am. S.C. 1972, c. 18, s. 1 raise similar constitutional problems. These foursubsections all deal with internal union affairs, more specifically certain unfair union practices as against union members. Their constitutionality has been discussed in Abbott and International Longshore- men’s Association, Local 1953 [1978] 1 Can. L.R.B.R. 305; Matus and International Long- shoremen’s Union, Local502 [1980] 2 Can. L.R.B.R. 21; and InternationalLongshoremen’s and Warehousemen’s Union, Local 502 and Matus [1981] 1 Can. L.R.B.R. 115. The conclusion of these cases is that, although it cannot purport to regulate internal affairs of the union’s constitution, Parliament can regulate the effects of improper union activity. For example, the Board can sanction a union for improperly expelling a member, but it cannot declare void the clause in the constitution that allowed the union to expel as it did.

The Federal Court of Appeal has confirmed recently the constitutionality of s. 185 in International Longshoremen’s and Warehousemen’s Union, Local 502 v. Matus (1981) 40. N.R. 541 and International Longshoremen’s and Warehousemen’s Union, Local 502 v. Matus (No. 2) (1981) 40 N.R. 594, (consolidated in (1981) 129 D.L.R. (3d) 616). See especially, the

subss 185(e), (f), (g), and that other, more appropriate provisions -namely, (h) of the Code I7- apply to complaints about the internal working of a union. For example, facts such as those in the Imbeau case could have given rise to an application under subs. 185(h).1 Unfortunately for Imbeau, his case had to be brought under the Qu6bec Labour Code, which contains no comparable provisions.

The Duty of Fair Representation and Non-Members of the Bargaining Unit

Before considering the substantive content of the duty of fair representa- tion, one final issue should be noted. Both s. 47.2 of the Qu6bec Code and s. 136.1 of the Canada Code impose a duty of fair representation on the union in favour of all employees in the bargaining unit, whether or not they are union members. What happens, then, if the issue that the individual wishes to arbitrate is precisely his status as a member of the bargaining unit? Is the individual, whose status as a bargaining unit member is in doubt, automatical- ly barred from invoking ss 47.2 or 136.1? Two recent Tribunal du Travail decisions indicate that the answer is not simple, at least not under the Qu6bec Code.

decision of Urie J., at 549 of the first of these interlocking appeals, which suggests that Parliament can legislate regarding the internal rules of a union as long as these rules affect the availability of work on a federal work or undertaking.

It might be noted that the ordinary courts of Qu6bec have also assumed jurisdiction over disputes involving unions and members employed on a federal work. In Association interna- tionale des ddbardeurs, local375 v. Chenard [1981] C.A. 427, for example, it was apparently never even suggested to the Court of Appeal that there might be some jurisdictional problem in awarding damages against a union whose members were almost exclusively employed on a federal work. This case is, of course, in line with Stern, supra, note 39 and, more generally, Bell Telephone Co. of Canada v. Harding Communications Ltd [1979] 1 S.C.R. 395, (1978) 92 D.L.R. (3d) 213.

67R.S.C. 1970, c. L-1 as am. S.C. 1972, c. 18, s. 1. 6But a complaint about the union appeal mechanism cannot be brought under s. 185. Moreover, to judge from the decision in Solly and Communications Workers of Canada, Local 49 [1981]2Can. L.R.B.R. 245 [hereinafterSolly], the CanadaLabour Relations Board intends to reserve s. 185 for extreme abuses of union power. In Solly, the union had refused Solly’s application for membership because all evidence seemed to indicate his violent hostility to the union. Solly applied to the Board under s. 136.1 as well as subss 185(f) and (g). The Board rejected the application because, in its view, a union has the right to reject objectionable candidates. What made Solly particularly objectionable was his activities as a strikebreaker. This sufficed, said the Board, to justify the union’s decision. It also appears that complaints about the union appeal mechanism are not possible under s. 185 nor under s. 136.1 of the Canada Labour Code.

In Perry v. Syndicat Qu~b~cois de l’Imprimerie,69 the Tribunal refused to order arbitration under s. 47.5 because in its view the complainant had no arbitrable claim under the collective agreement:

[L]e pr6sent recours n’a pas d’objet si la r6clamation du salari6 est manifestement irrrcevable en vertu de la convention collective en vigueur, puisque le Tribunal ne peut qu’autoriser le salari6 A soumettre sa r~clamation un arbitre “pour drcision selon ]a convention collective” (art. 47.5). II n’y a certainement pas lieu de d6frer A l’arbitrage une reclamation qui serait non arbitrable en vertu de la convention collective.70

Once more, then, the success of a s. 47.3 complaint was seen to hinge upon the existence of an arbitrable claim under the collective agreement. Having established this principle, the Tribunal disposed of Perry’s application by deciding, first, that he was not an employee as defined by the collective agreement and, second, that he could not have an arbitrable claim with respect to a collective agreement by which he was not bound. In brief, the court suggests that a claim of employee status is arbitrable only if the employee has such status. This is a somewhat surprising suggestion, especially since it allows the court to usurp the role of the arbitrator and to decide on the very issue that it is supposed to refer onward. The Judge was himself aware of this problem, but came to the following conclusion:

Certes, il s’agit l d’une question prdjudicielle dont un arbitre de grief pourrait 8tre saisi. Mais cela n’empeche pas, A mon avis, que le Tribunal ne puisse et ne doive en disposer, s’il le peut, c’est-A-dire s’il est saisi de tous les 6lments n~cessaires A cette fin, sans pour autant usurper la juridiction de l’arbitre de grief. I1 s’agit ici d’un recours manifestement exceptionnel ayant pour but la correction d’un d6ni de justice lorsqu’un salari6 est priv6 d’un droit d’arbitrage par suite de mauvaise foi … de son syndicat dans le traitement de son renvoi. .. .Ces dispositions du Code n’ont pas pour objet de crier un droit d’arbi- trage qui n’ aurait jamais autrement exist.1″

This conclusion does not, however, dispel the lurking suspicion that the Tribunal had indeed stepped into the arbitrator’s shoes. According to all the earlier jurisprudence on s. 47.2 et seq.,7 the Tribunal has the competence to determine the primafacie validity of the employee’s claim only to the extent that this validity is relevant to the issue of union representation – that is, if the claim seems valid, the Tribunal will consider the union to have been all the more remiss in not arbitrating. The problem raised in Perry was handled in a completely different, and more satisfactory, manner in the earlier case of Maurice v. Local d’union 301, Montreal et Quebec de l’union canadienne des travailleurs unis des brasseries. 11 The union in that case had rejected the

‘[1981] T.T. 107 [hereinafter Perry]. 7 Ibid., 115. 7 Ibid., 116 [emphasis in original]. See cases cited, infra, note 102.

7[1979] T.T. 82.

complainant’s claim on the basis that he had not worked the necessary six months to give him status under the collective agreement. It apparently never occurred to the Tribunal to sift through the evidence and make a conclusive determination of the employee’s status. Instead, the Tribunal concerned itself only with the union’s conduct and, after deciding that the inquiry into the employee’s status had been far too cursorily completed, ordered the arbitra- tion of the complainant’s claim. 74

The decision in Perry points to another complex problem: the em- ployee’s status under the certificate of accreditation. Even if we decide that a -claim is arbitrable under a collective agreement, it remains to be decided whether the employee is covered by the certification. For example, an employee who works as a “general helper” may rightfully believe that he has an arbitrable grievance under a collective agreement made to apply to “all employees”. Yet the certificate by virtue of which this agreement was con- cluded may refer to “toolmakers, lead hands, inspectors, tool designers, draftsmen, floorclerks, and planners”. 5 Does the employee have recourse to the statutory duty of fair representation in the event that the union capriciously refuses to process that grievance? Under the Qu6bec Labour Code, the short answer to this question is – no. According to Judge Lesage in Boivin v. Association internationale des machinistes et des travailleurs de l”airoastro- nautique, Local 987,76 the Tribunal du Travail could only assume jurisdiction over such matters if the Code gave legal status to voluntarily recognized unions. Under the Qu6bec Code, only certification can vest a union with sole authority to represent the members of a bargaining unit. Because s. 47.2 applies only in favour of those “salarids compris dans une unit6 de n6gociation qu’elle [l’association] repr6sente”, the absence of a certificate covering the employee is, according to Judge Lesage, fatal to such an employee’s claim. 77 We may have hoped that the Tribunal would read s. 47.2 liberally so as to encompass both legally and voluntarily recognized associations, especially since the type of facts that arose in the Boivin case are probably common- place. As the composition of a work force changes, the certificate may become outdated, no longer serving as an accurate description of the types of jobs performed by bargaining unit members. The individual whose s. 47.3 application has been refused because he does not fall within the certificate can only protect himself by seeking certification for a new association. Because the employer has already shown himself willing to bargain, it should be a

-Ibid., 85. “These are the facts of Boivin v. Association internationale des machinistes et des travail-

leurs de l’adroastronautique, local 987 [1981] T.T. 149.

76Ibid. -lbid., 151-2.

fairly simple matter to obtain a certificate78 and then negotiate for a new collective agreement. But if, as is likely, the employee’s complaint concerns a discharge, certification of a separate association is no remedy at all: the worker will have lost his status as an employee and so cannot apply for certification. A more efficacious remedy might lie in the amendment of the existing certificate. Yet such an amendment would have prospective effects only, and any union impropriety which occurred before the amendment was obtained will remain unimpeachable.

By contrast, the Canada Labour Code does give legal status to voluntari- ly recognized unions 11 and it is not surprising that the Labour Relations Board has enforced the duty of fair representation with regard to recognized and certified unions alike.8′ Section 107 makes recognition depend upon the existence of a collective agreement concluded by the union on behalf of the employees in the bargaining unit. The issue before the Board, therefore, is whether the employee who applies under s. 136.1 falls within the scope of the collective agreement. This returns us to the question raised in Perry:8’ Does the Board have jurisdiction to decide finally on employee status or does that matter rightfully fall within the arbitrator’s jurisdiction? The answer that the Canada Labour Code provides is much simpler than that of the Qu6bec Labour Code. Even though subs. 189(a) of the Canada Code confers a far broader remedial jurisdiction than does s. 47.5 of the Qu6bec Code, the Canada Labour Relations Board apparently cannot arbitrate a claim itself. But the recent Supreme Court decision in Teamsters Union, Local 938 v. Massicotte 82 has affirmed that para. 11 8(p)(vii) of the Code gives the Board final jurisdiction to determine who properly belongs within a voluntarily recognized bargaining unit. Thus the Board does not usurp the arbitrator’s role when it considers the scope of a collective agreement and the status of a particular employee.

7 Following the procedure set out in the Qudbec Labour Code, R.S.Q. 1977, c. C-27, ss 25

and 26. The conditions for certification are established by s. 28 of the Code.

79See the definition of “bargaining agent” in Canada Labour Code, R.S.C. 1970, c. L-l,

subs. 107(1) as am. S.C. 1972, c. 18, s. 1.

wIt should be noted that the French version of s. 136.1 is written in the following terms: “Lorsqu’un syndicat est accredit6 A titre d’agent n6gotiateur d’une unit6 de n6gotiation. .. “. See Canada Labour Code, R.S.C. 1970 c. L-1 as am. S.C. 1977-78, c. 27, s. 49. Recognized associations do not seem to be covered. It was decided in Massicotte and Teamsters Union, Local 938, supra, note 40, that the English version of s. 136.1 mirrors most clearly Parlia- ment’s intent in legislating the duty of fair representation; that version therefore prevails.

“1Supra, note 69. ‘Supra, note 40.

Scope of the Duty of Fair Representation

Any discussion of the statutory duty of fair representation should proper- ly begin with a brief look at Rayonier Canada (B.C.) Ltd and International Woodworkers of America, Local 1-21 and Ross Anderson,3 a Paul Weiler decision that has provided the inspiration for most of the fair-representation cases decided under the Canada Labour Code. The importance of this case lies not so much in its holding as in its consideration of the policy issues that are involved in setting the parameters of the duty of fair representation. Weiler never attempts to define the precise nature of fair representation; instead, he provides a list of criteria that we should weigh before intervening in union actions.

The issue that the British Columbia Labour Relations Board was specifi- cally asked to address in Rayonier concerned the unionized worker’s right to arbitration: does the worker have an absolute right to insist on the arbitration of his grievance, or does the union retain some discretion to veto what it believes are frivolous or unmeritorious claims? Weiler pitches the issue at a slightly higher level of abstraction: Who ultimately controls the administra- tion of the collective agreement? For Weiler, the question – when rephrased in this way – almost suggests its own answer. The administration of a collective agreement is merely an extension of the bargaining process and, because this process was meant to confer primarily a group benefit, it seems clear that the group interests in such administration should prevail over individual interests.” It follows that the union should have exclusive authority to identify what group interests merit attention.8 Weiler finds support in the writings of Archibald Cox who suggested that certain institutional interests would also be better served if the union were vested with the power to control the administration of the collective agreement. 6 Among these, Weiler men- tions the union’s interest in saving precious time, money and energy, as well as in ehancing its credibility with management. Most important for him is, however, the union’s interest in resolving the type of intra-union conflict that typically arises in, for example, seniority claims. According to Weiler, such a conflict usually stems from a clause in the collective agreement which has been left purposely vague. It is expected that the parties will hammer out some compromise during the life of the collective agreement and thus the union should be given as much latitude as possible to negotiate on behalf of all.Y

3[1975] 2 Can. L.R.B.R. 196 (B.C.L.R.B.) [hereinafter Rayonier]. See also P. Weiler, Reconcilable Differences[:] New Directions in Canadian Labour Law (1980) 132-9 for a subsequent reassessment of the Rayonier decision.

“Rayonier, ibid., 202. “Ibid., 203-4. -Ibid., 204. “Ibid., 203-4.

In sum, unless pressing and exceptional circumstances require it to give special weight to individual interests, a labour relations board should not interfere with union decisions. The mere fact that the union refused to go ahead with arbitration is not conclusive evidence of a breach of the duty of fair representation; the individual must also adduce facts that show the refusal was improper. Weiler suggests that a board should take into account the following factors: the significance of the grievance to the individual, the validity of the grievance, the care with which the union made its decision not to arbitrate, the union’s previous practice when confronted with similar grievances, the indi- vidual’s expectations in seeing the grievance arbitrated, and the weight of the institutional interests that prompted the refusal to arbitrate.”

Since the time of the Rayonierjudgment, Weiler has modified his earlier views and now claims that discharge cases should give rise to an absolute right to arbitrate, provided that the employee himself agrees to support the costs. 9 Among the reasons he gives for this change of heart, the most compelling arises from recent developments in labour standards legislation. Under s. 61.5 of the Canada Labour Code, for example, the non-unionized worker who believes he has been unjustly dismissed from his job may apply for the arbitration of the dismissal. If the non-unionized worker may arbitrate his discharge, how can we maintain that the unionized worker should have any lesser right?9 Some three years after the enactment of s. 136.1, the Canada Labour Relations Board made clear its position concerning the right to arbitrate in the two Haley and Canadian Airline Employees’ Association and Eastern Provincial Airways (1963) Ltd 91 decisions. The Board considered Weiler’s new stance, yet followed the decision in Rayonier. Its reasons for so doing are not entirely cogent, let alone convincing.

First of all, the Board insisted that certain institutional interests must be protected by allowing the union to screen out truly hopeless cases.9 This insistence, of course, begs the question. What Weiler argues is that institu- tional costs are small when set against the cost to the employee who loses his job; that a discharge grievance, however hopeless, is so crucial to the em- ployee that for once, institutional interests assume a secondary importance. Moreover, the Board ignored Weiler’s suggestion that the right to arbitrate be made subject to an agreement by the aggrieved employee to pay for his and the union’s share of the arbitration costs.

-Ibid., 204. “See Weiler, supra, note 83, 137-9. Ibid., 139, fn. 91[1980] 3 Can. L.R.B.R. 501 [hereinafter Haley No. 1]; [1981] 2 Can. L.R.B.R. 121

[hereinafter Haley No. 2].

“Haley No. 2, ibid., 129.

Secondly, the Board thought that a mandatory duty to arbitrate dismissal would give rise to a flood of arbitration. Of particular concern to the Board was arbitration in a system of progressive discipline, where any sanction imposed on an employee can escalate into his eventual dismissal. If not arbitrated, the sanctions become resjudicata and are not open to review by the arbitrator who adjudicates on the dismissal. It follows that a union, if bound to arbitrate a discharge, would be well advised to arbitrate every disciplinary sanction. Otherwise, it might eventually be saddled with the task of defending the indefensible – a record of employment that the arbitrator must take as conclusive evidence of the employee’s poor work habits. 93

This argument, apart from its in terrorem aspect, is somewhat question- able. Systems of progressive discipline already provide a strong incentive to arbitrate. Most unions would contest any disciplinary sanctions that could escalate into discharge, simply to keep the employee’s record clean. In any case, we can probably trust unions to arbitrate only meritorious disciplinary grievances: the employee’s record is just as much tainted by an adverse arbitrator’s award as it would be by a failure to arbitrate altogether.

The Board further suggested that “the grievance procedure is a source of information and education for all parties” and if “arbitration were inevitable then there would be no need for the employer to disclose the facts it has marshalled in support of the dismissal until the arbitration hearing”. 4 This reason for allowing unions to pick and choose among discharge grievances is hardly credible. Most collective agreements require the parties to submit to a multi-step grievance procedure before turning to arbitration and one would imagine that all relevant information would emerge during that procedure. Arbitration has also become a very costly procedure and the Board objected to any union expenditure that would be disproportionate to the amount in dues normally collected from bargaining unit members. 95 Again, however, the Board ignored the option of making the individual pay his way. If the union were made to pay for successful cases, the price would not be too high. The union is, after all, charged with promoting the rights of workers and the success of the arbitration surely indicates the existence of a right that merited union support.

The Board also feared the effect of compulsory arbitration on the time delays typically stipulated in a collective agreement. If the union knows it must, in the end, arbitrate, it could blithely disregard those delays. 96 Yet

93Ibid. 9 Ibid. 9 Ibid., 129-30.

Ibid., 130.

arbitrators can always award damages if the union negligently or intentionally delays the processing of a grievance and if the employer suffers loss as a result.

The Board’s final reason is, without a doubt, the most telling. If arbitra-

tion is made mandatory,

then with what standard must [the union] perform? If it can afford counsel must it retain counsel? If cost is no factor to the union in going to arbitration then may it be a factor in the preparation and conduct of the proceeding? … If the focus of union activity is trans- planted from the grievance procedure to the arbitration hearing then the focus of the duty to fairly represent will necessarily follow in the individual’s view.’

In other words, to insist on the arbitration of all discharge grievances does not automatically solve the problem of erratic union conduct. All we have done by insisting on arbitration is to change the arena; the opportunities for improper behaviour remain the same. The Board overlooked, however, one crucial factor: cases such as Hoogendoorn 98 allow the aggrieved individual to take an active part in the arbitration. This participation in a hearing before a presumably impartial arbitrator would, one hopes, cancel out the effect of shoddy union representation.

The reasoning in the Plenary Board decision in Haley No. 2 masks what is probably the only real justification for refusing to recognize mandatory arbitration. In the end, this decision turns on a particular vision of the role of the Canadian trade union movement and of the institutional interests that must be protected. The Board’s view of that role was perhaps best summarized in the first Haley decision:

For us the competing policy considerations canvassed at length in the literature and the numerous decisions by Canadian labour relations boards can be focused in one question. What is the role or character of unions contemplated by the Code? If they are to be viewed as one of the big three, big business, big government and big unions, then the role and scope of protection of the individual through the duty of fair representation from even innocent mistakes causing harsh consequences would lie in favour of extensive protec- tion. If unions are to be viewed as voluntary, underfinanced, understaffed, extremely democratic, participatory entities acting as the extension of basic tenets of our free society many errors must be excused. The reality no doubt lies between the extremes and each union, local or international, sits at a different place on the spectrum. … Our view is that in 1978 when Parliament enacted the duty of fair representation it must be taken to have viewed unions as participatory entities which, although vested with exclusive bargaining authority for certain units of employees, must also act as the instruments to foster, preserve and further the laudable purposes expressed in the Preamble. They do this in a social and economic context where a lack of funding, education, staffing and participation is a real, every day fact of life. 99

9 Ibid. “Supra, note 20. “Haley No. 1, supra, note 91, 509.

The Board’s main concern in this passage was to demonstrate that unions should not be held responsible, at least not under s. 136.1 of the Canada Labour Code, for simple negligence. But the passage also serves to explain why the Board has so adamantly refused to impose a duty to arbitrate. If they remain as weak and beleaguered as the Board assumes them to be, unions should be allowed to husband their resources. As one member of the Board so aptly stated, the “parsimonious and rigid administration” 10 of funds will make the union strong. The same rationale presumably holds true for the administration of talent, loyalty and whatever else is needed to put the union on a battle footing. As a result, the institutional costs of arbitrating each and every grievance are simply too high, even when the grievance concerns the discharge of a bargaining unit member.

Cases decided under the Qu6bec Labour Code are to the same effect. After an initial flirtation with the notion of compulsory arbitration, 0 1 the Tribunal du Travail has steadfastly favoured the union’s discretion to veto the arbitration of grievances.” Since the reasons for this are largely the same as those offered by the Canada Labour Relations Board, we need not rehearse them. Suffice it to say that the net effect of the jurisprudence under the Canada and Qu6bec Codes, coupled with the holding in the Brunet case, is to cut off entirely any individual access to the arbitration procedure. The unionized worker can neither ask a court to by-pass the enforcement procedure set out in the collective agreement, nor force the union to go through that procedure on his behalf.03

10’Cloutier and Cartage and Miscellaneous Employees’ Union, Local 931 [1981] 2 Can.

L.R.B.R. 335, 342 [hereinafter Cloutier].

“‘ See Courchesne v. Le Syndicat des travailleurs de la corporation de batteries CEGELEC

(C.B.C.) de Louisville (C.S.N.) [1978] T.T. 328 [hereinafter Courchesne].

,’oBoulayv. LaFraternitddespoliciers de la communaut6 urbaine de Montrdal Inc. [1978] T.T. 319; Bibeau v. La Fraternitj unie des charpentiers et menuisiers d’Amdrique, section locale 2533 [1978] T.T. 131; Droletv. Syndicat des employ6s du SupermarchiRoy Inc. [1979] T.T. 221 [hereinafter Drolet]; Godin v. La Fraternitg unie des charpentiers et menuisiers d’Amdrique, local 2533 [1979] T.T. 157; Boutin v. Le syndicat international des travailleurs en ilectricitg [1979] T.T. 91 [hereinafter Boutin]; Hubert v. Syndicat (unitd) des policiers pompiers de la Ville de Nicolet [1980] T.T. 302 [hereinafter Hubert]; Jacques v. Travailleurs canadiens de l’alimentation, local P-551 [1981] T.T. 85 [hereinafter Jacques]; Leduc v. Syndicat international des travailleurs unis de l’automobile de l’aironautique, de l’astronauti- que et des instruments aratoires d’Amdrique, section locale 1163 [1981] T.T. 93 [hereinafter Leduc].

3It is interesting to note that E. Palmer, in Responsible Decision-making in Democratic Trade Unions (1969) 172-3 (Woods Task Force on Labour Relations, Study No. 11), made the following recommendation:

Obviously, to obtain a speedy, inexpensive and orderly system of dispute settlement, the arbitration process must be strengthened. In so doing, however, more extensive rights must be given to individuals during this process.

Toward a Standard of Fair Behaviour

In sum, to establish a contravention of the statutory duty of fair repre- sentation, the complainant must prove something more than merely a refusal to arbitrate. Under the Qu6bec Labour Code, this requires proof of bad faith, arbitrariness, discrimination, or serious negligence.” 4 To define the precise nature of negligent, arbitrary or discriminatory behaviour is a notoriously difficult undertaking, and it is not surprising that the Tribunal du Travail has not tried to do so. The approach is largely casuistic; much depends on factors such as the complainant’s own behaviour, the merits of the complaint, the union’s good intentions and so on. Regrettably, we have no coherent judg- ment such as the Rayonier case to set some limits to the relevant factors the Tribunal may consider. The compilation of such a list would be easier under the Quebec Labour Code than under any other provincial labour code, simply because the reach of the duty of fair representation is for all practical purposes so much more restricted. The legislature has already indicated that only dismissal and disciplinary sanctions are serious enough to warrant interven- tion. It has also defined the context in which the duty arises: the administra- tion of the collective agreement. Despite these differences between the Qudbec and other provincial codes, there seems to be good reason to use Rayonier as a guidepost. For even under the Qudbec Code, factors such as the prima facie validity of the claim or previous practice with respect to such claims remain highly relevant.

The Tribunal du Travail believes itself to be without jurisdiction to decide on the actual validity of the claim. The Tribunal’s main concern is with the fairness of the union’s conduct; for this purpose, it suffices that the Tribunal consider the prima facie validity of the claim only.’ The Tribunal asks what kind of inquiry was necessary given the nature of the claim, and then decides whether the union pursued an appropriate course of action. As a result, the Tribunal’s examination of the facts bears primarily upon the procedure followed by the union. What would happen if the normal proce- dure, as required by the collective agreement or the union’s constitution and practice, seems to be inadequate? There is no clear answer to this question, but it appears that fairness is ultimately determined by practice; the union has no obligation to go beyond what its constitution or collective agreement requires of it. In fact, the Tribunal du Travail has attempted to do nothing

Initially, therefore, the union should be given the right to meet its responsibilities, given by certification, to sift out wholly frivolous grievances that would clog the grievance procedure. When an individual is unhappy with the disposition he should be able to pursue to arbitration those matters which are personal to him.

“See R.S.Q. 1977, c. C-27, s. 47.2. “‘See the cases cited supra, note 102.

more than infuse “normal procedure” with some content. It is not enough, for example, to hold an inquiry; the inquiry must also be serious 11 and directed to the issues at hand.'” A union clearly violates s. 47.2 if it decides to drop a grievance, not because it is unmeritorious, but because the complainant fanatically supports a rival union.’ 8 The Tribunal has even shown itself willing to look behind a vote of the general membership taken to ratify a decision not to arbitrate.’

One factor that figures consistently in the Qu6bec jurisprudence is the applicant’s own behaviour when dealing with his union.” ‘ As one might expect, the Tribunal has found it difficult to sympathize with the worker who changes his mind at the last minute and decides to arbitrate, who refuses to take the time to fill out a grievance form or who fails altogether to inform the union of his cause for complaint. Nonetheless, apart from these cases involv- ing what might loosely be described as contributory negligence, the Tribunal initially tended to intervene quite readily. The highwater decision is probably Gudrard v. Travailleurs canadiens de l’alimentation, Local 748,”‘ a 1980 judgment of Judge Morin, who apparently placed on the union the burden of showing that its decision was taken properly:

Les faits soumis par le requdrant que l’intim6 n’a pas jug6 bon 6clairer ou contredire, d6montrent qu’il y a eu, sinon discrimination, du moins n6gligence grave de la part de l’intim6. I1 n’a pas prouv6 qu’il ait fait enqu~te sur les all6gations du requ6rant. II faut donc les prendre pour av6r6es.112

In other words, the complainant need only allege the inadequacy of the union’s conduct and then the burden of proof shifts to the union. In the absence of positive proof that the union acted properly, the application must succeed. If this judgment is correct, it may be easier to obtain a remedy under s. 47.3 et seq. than the words of that provision themselves indicate. A mere allegation that the. union refused to arbitrate will not suffice, but if that allegation is coupled with the further allegation of improper behaviour, the success of the application will hang on the force of the union’s and not the applicant’s proof.

‘See Boutin, supra, note 102. “‘See Legault v. Syndicat des travailleurs amalgamifs du v4tement et du textile, local 644

[1979] T.T. 375.

“‘ lbid. ‘9 See Rivest v. Association internationale des pompiers, section locale 1121 [1980] T.T.

“‘See, e.g., Boutin, supra, note 102; Drolet, supra, note 102; Jacques, supra, note 102; Gendron v. Syndicat international des travailleurs de la boulangerie, confiserie et du tabac, local 335 [1980] T.T. 192.

” [1980] T.T. 420. “‘Ibid., 424.

Since the Guirard decision, however, the Tribunal has retreated from its earlier position.”3 Recent cases have generally involved allegations of serious negligence; that is, the union did pursue the complainant’s grievance in good faith, but then made a mistake in some procedural matter. Typical of this line of jurisprudence is the “missed time delay” case: the union representative makes a fairly elementary mistake in counting the delay for the bringing of a grievance and so informs the employee that his right to arbitration has lapsed. To judge from the jurisprudence, an inability to count is not necessarily serious negligence, “4 but the following errors may well be: not knowing that dismissals can be contested by grievances, that grievances should be submit- ted in writing and to the employer or that delays exist for the bringing of a grievance.”‘ We may note that all these errors are not merely serious; they are egregious. And, if this list of errors reflects truly the Tribunal’s understanding of the standard of care required under s. 47.2, then it would appear that the duty of fair representation will be breached but rarely.

The attitude implicit in this recent jurisprudence is mirrored in the cases decided under the Canada Labour Code. Although s. 136.1 does not refer expressly to negligence as a ground for complaint, the Canada Labour Relations Board has decided that union negligence may be a breach of the duty of fair representation.” 6 Like the Tribunal du Travail, the Board has further decided that the standard of care imposed on the union should not be pitched at too high a level. Only gross negligence, and not simple mistakes such as the inadvertent missing of a delay, suffices to bring a complaint under s. 136.1 of the Code. This unwillingness to impose any higher duty of care stems in part from the Board’s vision of itself as the protector of a still weak, if not fledgling, union movement. It also stems from a belief that union mem- bers, when dissatisfied, can and should shop for better services elsewhere: Union members get the leadership they select or neglect to actively select. The leaders are not analogous to lawyers paid to service clients but more like legislators selected to service a constituency. They will make errors and mistakes through ignorance, lack of training or experience, or lack of resources…. The union’s duty of fair representation does not guarantee individual or group union decision makers will be mature, wise, sensitive, competent, effectual or suited for their job. It does not guarantee they will not make mistakes. The union election or selection process does not guarantee competence any more than the process does for those selected to act in other democratic institutions such as Parliament or appointees to administrative agencies.”‘

“‘See Jacques, supra, note 102; Leduc, supra, note 102. “‘See Jacques, ibid. “‘ See Leduc, supra, note 102, 97. ‘6See e.g., Haley No. 1, supra, note 91; Haley No. 2, supra, note 91; Cameron and Canadian Brotherhood of Railway, Transport and General Workers [1981] 1 Can. L.R.B.R. 273.

No. 2, ibid., 131.

This type of statement seems almost to draw inspiration from the maxim volenti non fit injuria: the union member chooses his representative and so must live with the consequences until such time as he either changes the people in office or chooses a new union.

We can understand the Board’s reluctance to hold unions liable for simple negligence. What is more troublesome, however, is the Board’s suggestion that liability is to be measured according to a subjective standard. The Board’s understanding of the legislative and the administrative process seems regressive. It overlooks the growing legal concern with the unfettered exercise of power, governmental or otherwise. The development of adminis- trative law reflects this concern. In Canada, as in England, it appears that no level of governmental decision-making is immune from judicial scrutiny.”i Even that bastion of liberal laissez-faire, corporate law, has moved toward a greater protection of minority interests. When reviewing the exercise of power, the courts do not ask whether the power holder was “mature, wise, sensitive, competent, effectual or suited for [his] job”. 119 Nor, for that matter, will a court seized of a constitutional challenge exonerate parliamentarians who lack these qualities. In law, the standard of behaviour is ex hypothesi objective. Legislation does not become constitutional, nor decisions fair, simply because the actors were well meaning, albeit dull-witted. This objec- tive standard of behaviour is exacted not only from parliamentarians but also from low level civil servants. If, therefore, a transport commissioner who issues licences must behave in a scrupulously proper manner, it is difficult to accept that a union – which is vested with sweeping powers to control an individual’s livelihood – should be held to any lesser standard of behaviour. One would imagine, then, that legislation to create a duty of fair representa- tion similarly sets objective standards. It seems a contradiction of terms to suggest that in some circumstances the right to fair representation in fact entails no more than a duty to suffer incompetence.

Nevertheless, the Canada Labour Relations Board has decided to vary the standard of fairness according to the sophistication and clout of the union in question. Notwithstanding the opinion expressed in the Haley case about Parliament’s intention when enacting s. 136.1, the Board clearly recognizes that some unions are less in need of protection than others. For example, one Board member took note of the “fighting spirit” of the Teamsters, a union that

“ISee cases such asRoncarelliv. Duplessis [1959] S.C.R. 121, (1959) 16 D.L.R. (2d) 689; Nichblson v. Haldimand-NorfolkRegional Board of Commissioners of Police [1979] 1 S.C.R. 311, (1978) 88 D.L.R. (3d) 671; R. v. Liverpool Corporation, Exparte Liverpool Taxi Fleet Operators’ Association [1972] 2 Q.B. 299, [1972] 2 All E.R. 589 (C.A.).

“9Haley No. 2, supra, note 91, 131.

is “well established, seasoned, [and] experienced”.,20 The standard of care placed on the Teamsters was accordingly higher than that which might be placed on a small, home-grown and weak union.

The Canada Labour Code is broader in scope than the Qu6bec Labour Code and raises certain additional problems in setting the standard of care required of unions. The first of these problems concerns the relevance of the job interest at stake. For the Board, the importance of the job interest cannot serve as conclusive evidence of a breach of s. 136.1 of the Code, but does remain highly relevant. The more important the job interest, the higher the duty of care placed on the union. A more perplexing problem concerns the standard of care imposed on the union in situations other than that of collec- tive agreement administration. To date, the Canada Labour Relations Board has had only one occasion to consider this problem, in Larmour, which concerned the fairness of mid-contract negotiations conducted by the union and the employer.’ The holding reveals clearly the Board’s view that collec- tive agreement negotiations import a lower standard of care than does collec- tive agreement administration. The justification for this approach apparently flows from the very nature of bargaining. When the union sits at the bargain- ing table, it must have the latitude to engage freely in the give-and-take of negotiations, as well as to reconcile the competing interests of various members of the bargaining unit with what the employer is willing to offer. A more subtle and sophisticated justification appears in the works of Alfred Blumrosen, who distinguishes negotiations from administration on the basis of the type of expectations raised. ‘1 In collective bargaining, the employee’s expectations are generalized, rooted merely in hopes for im- proved working conditions. By contrast, expectations in collective agreement administration are created by the agreement itself and tend to be more specific, more objectively rooted. Moreover, negotiations have a broad

‘”Cloutier, supra, note 100, 341. The Board has, in effect, created an exception to the general rule that legal liability does not vary according to the level of sophistication. In determining legal liability, courts will but rarely give credence to subjective factors such as age, level of education, or mental capacity. Like the insane or the prodigal, however, unions have been singled out for special protection. Arguably, such protection is as justifiable in the context of union-member relationships as comparable protection would be in the employer- union relationship. Clearly, lack of sophistication is no defence in an unfair labour practice complaint against an employer; why then should a union be shielded by a similar lack of sophistication? Perhaps, the onus should be placed on the union to become sophisticated. Legislation can, after all, serve as an educator. In this case, it is left to the union to learn how to conduct its affairs fairly and competently.

U’Larmour, supra, note 60. ‘”Blumrosen, The Worker and Three Phases of Unionism: Administrative and Judicial

Control of the Worker-Union Relationship, supra, note 42, 1476.

impact on all bargaining unit members, whereas administration normally affects no more than a handful of individuals. Finally, the consequences of a breakdown in negotiations are far graver than those of a breakdown in the administration: the former may trigger a strike, while the latter can at most lead to the forced arbitration of the grievance.” For these reasons, we must give the union room to manoeuvre in bargaining and bar employees from delaying or endangering the process.

This summary account of Blumrosen’s analysis requires qualification. First, we should recognize that even bargaining may be rooted in settled expectations. At the very least, the employees expect no dilution of the rights enjoyed previously. Also, the issues considered at the bargaining table are often those which were first mooted during the administration of the previous agreement. Indeed, many unsettled grievances usually hang over the negotia- tions and it is expected that they will be dealt with at the bargaining table in a manner at least as favourable as would have been possible under the expired agreement. For example, a discharged employee who hoped to be reinstated may be justifiably disgruntled to see his unsettled grievance bought off with money during the negotiations.

Whereas negotiations are more firmly rooted in settled expectations than Blumrosen would have us believe, administration is often less firmly rooted in such expectations. In the end, Blumrosen’s analysis appears to rest on a distinction between rights disputes and interests disputes, a distinction which is more apparent than real. This distinction is most often referred to in debates about an arbitrator’s competence to hear matters that involve more than the mere enforcement of the collective agreement. It is argued that only the union and the employer can handle such matters, because the resolution of the dispute will lead to the creation of new rights not hitherto enjoyed. The arbitrator, by contrast, has no jurisdiction to create new rights and so must limit himself to enforcement of rights already enjoyed under the collective agreement. In short, interest disputes are more properly the subject of bar- gaining, while rights disputes are the subject of arbitration.

This allocation of decision-making power is, however, highly artificial and fails to reflect accurately the reality of the arbitrator’s role. Arbitrators do, and often must, resolve interest disputes within the course of a hearing. A dispute arises because the collective agreement is itself vague. The arbitrator must then fill in the gaps and in so doing may increase or dilute the rights already in existence. The facts of the Rayonier case’ 24 provide a ready example of the function of an arbitrator. At the heart of the case was a seniority dispute, a claim that a senior employee had lost his standing because

” Ibid. “‘Supra, note 83.

certain formalities, as required by the collective agreement, had not been met. The language of the collective agreement did seem to lend some support to the complainant’s claim, but the success of his grievance would have entailed great hardship for many other employees in the plant. It also would have brought an end to a long-established policy of the union and the employer to ignore the strict letter of the collective agreement in certain circumstances. No writing had ever formalized that policy, yet it is likely that an arbitrator would have invoked the doctrine of equitable estoppel to give it effect. 115 In other words, an arbitrator would have gone well beyond the terms of the collective agreement so as to resolve the dispute, creating a right from what had hitherto been a privilege.

The union in Rayonier did not seek the arbitration of the complainant’s grievance; nor did the British Columbia Labour Relations Board impeach this decision. The collective agreement – which supposedly embraces the full range of bargained-for and agreed-upon rights – provided no clear cut solution to the complainant’s grievance. The real issue here was not only the rights of the individual as determined by the collective agreement, but also the interests of all employees in formalizing a particular system of seniority ranking. In short, the union had to deal with an interest dispute, similar to the type of dispute that normally arises at the bargaining table. The same can be said even of simple disciplinary grievances, where the arbitrator’s award may add flesh to the bare bones of the collective agreement and will likely set a significant, if not dangerous, precedent for all future cases of the same sort. In the interests of the entire unit, then, the union has considerable freedom to seek out a settlement in such a way as to avoid arbitration.

If the type of dispute that arises during the administration of the collec- tive agreement is in essence no different from the type of dispute settled at the bargaining table, then there is little logic in distinguishing between the standard of conduct required of the union in each situation. A more logical distinction can be drawn according to the degree to which individual interests or settled expectations are affected by the union’s conduct. Thus, the standard of conduct during bargaining or administering remains more or less the same. In both situations, the union will suffer few limits to its power to settle disputes. When, however, a union tampers with the perceived rights or the interests of the individual employee, the Board should carefully supervise the union’s decision to do so. For example, we would expect a union to take as much care in negotiating away seniority rights or accepting monetary com- pensation for unsettled grievances, as in refusing to arbitrate a discharge. In all three cases, the union should be able to justify its decision on the basis of collective interests. If it cannot, then s. 136.1 of the Code has been breached.

‘See Weiler, supra, note 83, 134.

Of course, in asserting that a union has failed in its duty to represent fairly, an individual must not be allowed to abuse s. 47.2 et seq. of the Qu6bec Code and s. 136.1 of the Canada Code. A straightforward example of such abuse can be found in the Canada Labour Relations Board decision in Laplante.’26 The applicant in that case did not truly care whether the arbitra- tion he sought would result in his reinstatement. What he wanted was some documentary proof that he had suffered an industrial accident, which he could then use to obtain workmen’s compensation. The Board viewed the applica- tion as a dubious invocation of s. 136.1:

To allow such a complaint would amount to a gross distortion of Parliament’s intention, permitting an individual to manipulate the system to his own advantage and to impose upon the parties, as a last straw, the cost and labour of arbitration proceedings. Such would be a mockery of a recourse and remedy incorporated into the Code….”I

More problematic are the cases of union-employee collusion. For exam- ple, in the Tribunal du Travail judgment in Courchesne ” we find a union advising its member to apply under s. 47.5 of the Code. The collective agreement set out time limits for the processing of grievances, but these had expired. The presidency of the local changed hands and the new president, in the hope of repairing the damage done by his predecessor, suggested that s. 47.5 be used to get around the time delays. The Tribunal du Travail apparent- ly did not consider the collusion to be relevant, and found for the applicant. The opportunity to address this issue arose before the Canada Labour Relations Board in the first Haley case. 9 The results of this case are hardly more satisfying than those of the Courchesne decision. The Board merely indicated that, in cases where collusion is in evidence, the employer will be allowed to take a more active role in the proceedings. Collusion will not be an absolute bar to the application of s. 136.1 of the Canada Code; at best, it may tip the balance in favour of the employer if the Board is asked to exercise its discretion in extending time delays.’30 The Board’s decision is probably

“”Supra, note 45. ‘Ibid., 58. “‘Supra, note 101. “‘Haley No. 1, supra, note 91. “”Ibid., 505. This decision is somewhat surprising, especially in light of the considerable warmth with which the Plenary Review Board, in deciding on the same case, protested against the flouting of those procedural requirements set out in the collective agreement. In fact, no better argument against the holding in the first Haley decision can be made than that presented in Haley No. 2, supra, note 91, 130:

[I]f arbitration is mandatory why should a union concern itself with procedural require- ments to get to arbitration? Time limits would work only one way in favour of the union and against the employer. Other procedural requirements in collective agreements could be ignored. What would be the deterrent to this when the employer knows it must face arbitration on the merits eventually?

correct, but overlooks the most compelling argument in its favour. The argument presented by the employer in Haley No. 1 stems from a desire to penalize the union for collusion. Yet it would appear that arbitration is a more appropriate forum for a consideration of the effects of collusion. An arbitrator has the power to order compensation for losses suffered by an employer as a result of the union’s failure to follow stipulated procedure. In that way, the union is penalized, but the individual’s claim is heard. But if the Board purported to penalize the union by refusing arbitration, it is not the union that suffers; it is the individual.

Since the Supreme Court decision in Brunet, it has become clear that a worker who feels himself harmed because of his union’s incompetence or indifference cannot personally pursue his interests against his employer. This rule has been somewhat relaxed to enable the worker to enforce certain monetary claims on his own. When union sponsorship is needed to bring a claim arising from a collective agreement, the worker may also have a right to participate in the proceedings. Yet the scope of these exceptions to the general rule is ill-defined and in the end the worker is better advised to proceed against his union, forcing it to act on his behalf.

In Qu6bec, recourse against the union has ostensibly become easier since the promulgation of s. 136.1 of the Canada Labour Code 3′ and s. 47.2 et seq. of the Qu6bec Labour Code. 32 Even these statutory provisions, however, fail to give full protection against abuses of union power. Section 136.1 of the Canada Code is undoubtedly the broader of the two provisions, imposing a general duty to represent the interests of bargaining unit members fairly. The Canada Labour Relations Board has, however, diluted the force of this section in a number of ways. First, the case law suggests that s. 136.1 can never be used to review internal union affairs, even if such affairs concern the existing rights of a union member under the collective agreement. Secondly, the intensity of the duty varies, according to the nature of the task the union is asked to perform. For example, the union need be less concerned about the specific interests of each member during collective bargaining than it need be while administering the collective agreement. In practice, this approach means that only a failure to arbitrate grievances will normally give rise to a successful application under s. 136.1. Thirdly, the duty of fair representation

Much the same could be said about allowing unions to acquiesce in their own negligence: if the union knows it can always arbitrate a grievance by confessing to negligence, why should it bother about procedural requirements at all?

“13R.S.C. 1970, c. L-1. as am. S.C. 1977-78, c. 27, s. 49. 112R.S.Q. 1977, c. C-27.

only protects against gross negligence and other blatant abuses of union power. The gravity of the union’s fault is, moreover, to be measured in light of the union’s sophistication and the importance of the job interest at stake. Only critical job interests such as discharge or disciplinary sanctions will warrant the Board’s intervention, and even then the union may yet exonerate itself by pleading its lack of sophistication. Finally, the Board has adamantly refused to read into s. 136.1 an absolute right to arbitration, even for such critical job interests as discharge.

These glosses on the duty of fair representation make s. 136.1 look very much like s. 47.2 et seq. of the Quebec Labour Code. According to s. 47.2, the duty imposed on unions only protects against bad faith, discrimination, arbitrary actions, or serious negligence. Again, the Code itself does not limit the applicability of s. 47.2 to any particular facet of the worker-union relationship, but s. 47.3 et seq. allow the Tribunal du Travail to order arbitration only if the employee has been discharged or disciplined. As a result, the duty of fair representation is ordinarily invoked only when a highly critical job interest has been jeopardized by the shoddy management of a grievance. In addition, the Tribunal du Travail has followed the Canada Labour Relations Board in refusing to recognize an absolute right to arbitrate. Finally, for the purposes of a s. 47.5 order to arbitrate, the applicant must allege a breach of a collective agreement as the basis of his claim: arbitration cannot be ordered to regulate purely internal union affairs which have no bearing on the collective bargaining process.

In short, it would seem that the duty of fair representation only serves to control the quality of union representation in the grievance procedure. The union must apparently act in a most cavalier fashion before a worker has legal cause to complain. This cautious and non-interventionist approach, which resembles the methodology advanced by Archibald Cox, is not always pur- sued consistently. The Quebec Code in particular appears to have been drafted haphazardly. For example, the legislator shows some concern about opening the floodgates to frivolous or vexatious claims by setting strict limits to the types of contract disputes which fall within the scope of s. 47.3 et seq. Yet even minor disciplinary sanctions may serve as justification for a judicial order to arbitrate. As a result, the Code fails to provide for the arbitration of serious claims such as those concerning seniority disputes, but allows for the arbitration of even the most trivial of disciplinary disputes.

Why a labour tribunal or legislator may want to adopt a cautious approach can be briefly explained: it is argued that unions should be allowed to decide once and for all which interests must be sacrificed, so as to save precious time, energy and money. Implicit in this argument is a particular perception of the Canadian trade union movement. Labour rights exist, it is said, only in so far as unions have the strength to assert those rights. Strength,

in turn, depends upon union solidarity – the joining together of many workers into a cohesive unit to pursue common goals. If unionism in Canada is perceived as a relatively weak movement, it follows that unions should be able to silence internal dissent of minority groups. Only in truly exceptional cases should the law intervene to protect those minority interests. It should be noted that this reluctance concerns only the worker’s interests in his employ- ment. If the union trifles with the free exercise of rights otherwise acquired, such as political or religious rights, the law readily intervenes. When, howev- er, a worker tries to pursue personally an interest he has under his collective agreement, legislators and labour tribunals balk. Those rights that flow from the collective bargaining relationship are not considered to be individual rights; they remain collective rights, enforceable through the offices of the union. At best, the individual has no more than an interest in seeing that an advantageous collective agreement is negotiated and then enforced,

Yet more than one hundred and ten years have passed since the enact- ment of the first Canadian labour relations laws. Even though certain indus- tries have proved to be extremely resistant to unionization, the social and economic importance of the trade union movement has become fairly well established. Because of this, a less cautious approach to the quality of union representation may now be warranted.

The major difficulty that faces the legislator lies in reconciling the competing interests of the union and the individual worker. Of course, the law constantly engages in a process of crystallizing intrinsically conflicting in- terests into rights and duties. This process occurred first with proprietary, and then with contractual and economic interests; today, this process has begun to occur with human and fundamental rights. The effect of such a crystallization of rights is inevitably to fetter the discretion of the powerful, and at times even to erode the strength of the majority. The recent evolution in corporate law provides an excellent example of such an erosion. Increasingly, minority shareholders have been allowed to undercut the right of the majority to decide on the fate of the company. At times a two-third majority, rather than a simple majority, is needed to ratify managerial decisions; minorities who may be peculiarly affected by a fundamental change in the corporate structure are usually given a power of veto; specially-designed remedies allow a minority shareholder to take suit on behalf of the company, even when the majority refuses to support the suit; and, as a final gesture of dissent, a minority shareholder may demand that the company buy out his holding. In effect, the shareholder’s interest in the corporation has been transformed into a right, albeit limited, to control the affairs of the company, and this transformation has occurred at the expense of the majority rights. Certain business advan- tages may, as a result, have been lost. Yet the legislator has decided that the loss of such advantages is small in comparison to the loss to a minority shareholder who is prejudiced by a change in the corporate structure.

that between the individual and his union –

The interests of labour have also been crystallized into rights, but in this case the rights are primarily held by the collectivity and not the individual worker. Despite the interests of capital in maintaining a quiescent labour force, unions have been allowed to exact certain standards and conditions of employment. Unionization has, however, generated a new conflict of interest and it remains to be seen how – that conflict will be resolved. To judge from the law on the duty of fair representation, it would appear that the individual must continue to rely on his union to guarantee his job interests. Oddly enough, the recent trend in labour standards legislation seems to point in a different direction. Certain benefits, which used to flow from unionization alone, are now so thoroughly accepted that they have become statutory rights, exercisable even by the non-unionized worker. Thus, we have legislation on minimum wage, hours of work, health and safety requirements, and most recently the right to arbitrate dismissals. The law has begun to provide for the direct enforcement of certain labour rights, the enjoyment of which does not depend on unionization.

If the non-unionized worker now has certain limited statutory rights in his ’employment, it seems paradoxical that the unionized worker has no absolute right to insist on the performance of a collective agreement. It is true that the unionized worker generally benefits from an agreement that is far more generous than any statutory regime of employment rights, but this should be irrelevant. More justifiable is the fear that industrial harmony would be destroyed if a union were held strictly accountable to every worker it represents. At the very least, such accountability would lead to endless arbitration. Nonetheless, some compromise other than that devised by the Tribunal du Travail and the Canada Labour Relations Board is desirable. For example, the worker could be granted an absolute right to arbitrate on the condition that he pay the costs of any claim that failed or was of little moment. The possibility of paying costs should serve to deter the litigiously-minded from pressing vexatious or unmeritorious claims.

But neither the Tribunal du Travail nor the Canada Labour Relations Board has been willing to go this far. For the moment, then, the crystallization of individual labour rights among unionized workers has been arrested. In the interest of strength through solidarity, the union retains sole power to create and control the unionized worker’s interests in the collective bargaining process. Labour law today resembles corporate law of half a century ago: the sole obligation of those who control the power structure is no more than a vaguely expressed fiduciary duty. One might have hoped that the statutory duty of fair representation would be used to reconcile the protection of individual interests with the preservation of institutional strength. Regrett- ably, the Tribunal du Travail and the Canada Labour Relations Board have failed to respond adequately to the challenge.

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Political Representation

The concept of political representation is misleadingly simple: everyone seems to know what it is, yet few can agree on any particular definition. In fact, there is an extensive literature that offers many different definitions of this elusive concept. [Classic treatments of the concept of political representations within this literature include Pennock and Chapman 1968; Pitkin, 1967 and Schwartz, 1988.] Hanna Pitkin (1967) provides, perhaps, one of the most straightforward definitions: to represent is simply to “make present again.” On this definition, political representation is the activity of making citizens’ voices, opinions, and perspectives “present” in public policy making processes. Political representation occurs when political actors speak, advocate, symbolize, and act on the behalf of others in the political arena. In short, political representation is a kind of political assistance. This seemingly straightforward definition, however, is not adequate as it stands. For it leaves the concept of political representation underspecified. Indeed, as we will see, the concept of political representation has multiple and competing dimensions: our common understanding of political representation is one that contains different, and conflicting, conceptions of how political representatives should represent and so holds representatives to standards that are mutually incompatible. In leaving these dimensions underspecified, this definition fails to capture this paradoxical character of the concept.

This encyclopedia entry has three main goals. The first is to provide a general overview of the meaning of political representation, identifying the key components of this concept. The second is to highlight several important advances that have been made by the contemporary literature on political representation. These advances point to new forms of political representation, ones that are not limited to the relationship between formal representatives and their constituents. The third goal is to reveal several persistent problems with theories of political representation and thereby to propose some future areas of research.

1.1 Delegate vs. Trustee

1.2 pitkin’s four views of representation, 2. changing political realities and changing concepts of political representation, 3. contemporary advances, 4. future areas of study, a. general discussions of representation, b. arguments against representation, c. non-electoral forms of representation, d. representation and electoral design, e. representation and accountability, f. descriptive representation, other internet resources, related entries, 1. key components of political representation.

Political representation, on almost any account, will exhibit the following five components:

• some party that is representing (the representative, an organization, movement, state agency, etc.);
• some party that is being represented (the constituents, the clients, etc.);
• something that is being represented (opinions, perspectives, interests, discourses, etc.); and
• a setting within which the activity of representation is taking place (the political context).
• something that is being left out (the opinions, interests, and perspectives not voiced).

Theories of political representation often begin by specifying the terms for the first four components. For instance, democratic theorists often limit the types of representatives being discussed to formal representatives — that is, to representatives who hold elected offices. One reason that the concept of representation remains elusive is that theories of representation often apply only to particular kinds of political actors within a particular context. How individuals represent an electoral district is treated as distinct from how social movements, judicial bodies, or informal organizations represent. Consequently, it is unclear how different forms of representation relate to each other. Andrew Rehfeld (2006) has offered a general theory of representation which simply identifies representation by reference to a relevant audience accepting a person as its representative. One consequence of Rehfeld’s general approach to representation is that it allows for undemocratic cases of representation.

However, Rehfeld’s general theory of representation does not specify what representative do or should do in order to be recognized as a representative. And what exactly representatives do has been a hotly contested issue. In particular, a controversy has raged over whether representatives should act as delegates or trustees .

Historically, the theoretical literature on political representation has focused on whether representatives should act as delegates or as trustees . Representatives who are delegates simply follow the expressed preferences of their constituents. James Madison (1787–8) describes representative government as “the delegation of the government...to a small number of citizens elected by the rest.” Madison recognized that “Enlightened statesmen will not always be at the helm.” Consequently, Madison suggests having a diverse and large population as a way to decrease the problems with bad representation. In other words, the preferences of the represented can partially safeguard against the problems of faction.

In contrast, trustees are representatives who follow their own understanding of the best action to pursue. Edmund Burke (1790) is famous for arguing that

Parliament is not a congress of ambassadors from different and hostile interests, which interest each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole… You choose a member, indeed; but when you have chosen him he is not a member of Bristol, but he is a member of Parliament (115).

The delegate and the trustee conception of political representation place competing and contradictory demands on the behavior of representatives. [For a discussion of the similarities and differences between Madison’s and Burke’s conception of representation, see Pitkin 1967, 191–192.] Delegate conceptions of representation require representatives to follow their constituents’ preferences, while trustee conceptions require representatives to follow their own judgment about the proper course of action. Any adequate theory of representation must grapple with these contradictory demands.

Famously, Hanna Pitkin argues that theorists should not try to reconcile the paradoxical nature of the concept of representation. Rather, they should aim to preserve this paradox by recommending that citizens safeguard the autonomy of both the representative and of those being represented. The autonomy of the representative is preserved by allowing them to make decisions based on his or her understanding of the represented’s interests (the trustee conception of representation). The autonomy of those being represented is preserved by having the preferences of the represented influence evaluations of representatives (the delegate conception of representation). Representatives must act in ways that safeguard the capacity of the represented to authorize and to hold their representatives accountable and uphold the capacity of the representative to act independently of the wishes of the represented.

Objective interests are the key for determining whether the autonomy of representative and the autonomy of the represented have been breached. However, Pitkin never adequately specifies how we are to identify constituents’ objective interests. At points, she implies that constituents should have some say in what are their objective interests, but ultimately she merely shifts her focus away from this paradox to the recommendation that representatives should be evaluated on the basis of the reasons they give for disobeying the preferences of their constituents. For Pitkin, assessments about representatives will depend on the issue at hand and the political environment in which a representative acts. To understand the multiple and conflicting standards within the concept of representation is to reveal the futility of holding all representatives to some fixed set of guidelines. In this way, Pitkin concludes that standards for evaluating representatives defy generalizations. Moreover, individuals, especially democratic citizens, are likely to disagree deeply about what representatives should be doing.

Pitkin offers one of the most comprehensive discussions of the concept of political representation, attending to its contradictory character in her The Concept of Representation . This classic discussion of the concept of representation is one of the most influential and oft-cited works in the literature on political representation. (For a discussion of her influence, see Dovi 2016). Adopting a Wittgensteinian approach to language, Pitkin maintains that in order to understand the concept of political representation, one must consider the different ways in which the term is used. Each of these different uses of the term provides a different view of the concept. Pitkin compares the concept of representation to “ a rather complicated, convoluted, three–dimensional structure in the middle of a dark enclosure.” Political theorists provide “flash-bulb photographs of the structure taken from different angles” [1967, 10]. More specifically, political theorists have provided four main views of the concept of representation. Unfortunately, Pitkin never explains how these different views of political representation fit together. At times, she implies that the concept of representation is unified. At other times, she emphasizes the conflicts between these different views, e.g. how descriptive representation is opposed to accountability. Drawing on her flash-bulb metaphor, Pitkin argues that one must know the context in which the concept of representation is placed in order to determine its meaning. For Pitkin, the contemporary usage of the term “representation” can signficantly change its meaning.

For Pitkin, disagreements about representation can be partially reconciled by clarifying which view of representation is being invoked. Pitkin identifies at least four different views of representation: formalistic representation, descriptive representation, symbolic representation, and substantive representation. (For a brief description of each of these views, see chart below.) Each view provides a different approach for examining representation. The different views of representation can also provide different standards for assessing representatives. So disagreements about what representatives ought to be doing are aggravated by the fact that people adopt the wrong view of representation or misapply the standards of representation. Pitkin has in many ways set the terms of contemporary discussions about representation by providing this schematic overview of the concept of political representation.

1. Formalistic Representation : Brief Description . The institutional arrangements that precede and initiate representation. Formal representation has two dimensions: authorization and accountability. Main Research Question . What is the institutional position of a representative? Implicit Standards for Evaluating Representatives . None. ( Authorization ): Brief Description . The means by which a representative obtains his or her standing, status, position or office. Main Research Questions . What is the process by which a representative gains power (e.g., elections) and what are the ways in which a representative can enforce his or her decisions? Implicit Standards for Evaluating Representatives . No standards for assessing how well a representative behaves. One can merely assess whether a representative legitimately holds his or her position. pdf include--> ( Accountability ): Brief Description . The ability of constituents to punish their representative for failing to act in accordance with their wishes (e.g. voting an elected official out of office) or the responsiveness of the representative to the constituents. Main Research Question . What are the sanctioning mechanisms available to constituents? Is the representative responsive towards his or her constituents’ preferences? Implicit Standards for Evaluating Representatives . No standards for assessing how well a representative behaves. One can merely determine whether a representative can be sanctioned or has been responsive.

Brief Description . The ways that a representative “stands for” the represented — that is, the meaning that a representative has for those being represented.

Main Research Question . What kind of response is invoked by the representative in those being represented?

Implicit Standards for Evaluating Representatives . Representatives are assessed by the degree of acceptance that the representative has among the represented.

Brief Description . The extent to which a representative resembles those being represented.

Main Research Question . Does the representative look like, have common interests with, or share certain experiences with the represented?

Implicit Standards for Evaluating Representatives . Assess the representative by the accuracy of the resemblance between the representative and the represented.

Brief Description . The activity of representatives—that is, the actions taken on behalf of, in the interest of, as an agent of, and as a substitute for the represented.

Main Research Question . Does the representative advance the policy preferences that serve the interests of the represented?

Implicit Standards for Evaluating Representatives . Assess a representative by the extent to which policy outcomes advanced by a representative serve “the best interests” of their constituents.

One cannot overestimate the extent to which Pitkin has shaped contemporary understandings of political representation, especially among political scientists. For example, her claim that descriptive representation opposes accountability is often the starting point for contemporary discussions about whether marginalized groups need representatives from their groups.

Similarly, Pitkin’s conclusions about the paradoxical nature of political representation support the tendency among contemporary theorists and political scientists to focus on formal procedures of authorization and accountability (formalistic representation). In particular, there has been a lot of theoretical attention paid to the proper design of representative institutions (e.g. Amy 1996; Barber, 2001; Christiano 1996; Guinier 1994). This focus is certainly understandable, since one way to resolve the disputes about what representatives should be doing is to “let the people decide.” In other words, establishing fair procedures for reconciling conflicts provides democratic citizens one way to settle conflicts about the proper behavior of representatives. In this way, theoretical discussions of political representation tend to depict political representation as primarily a principal-agent relationship. The emphasis on elections also explains why discussions about the concept of political representation frequently collapse into discussions of democracy. Political representation is understood as a way of 1) establishing the legitimacy of democratic institutions and 2) creating institutional incentives for governments to be responsive to citizens.

David Plotke (1997) has noted that this emphasis on mechanisms of authorization and accountability was especially useful in the context of the Cold War. For this understanding of political representation (specifically, its demarcation from participatory democracy) was useful for distinguishing Western democracies from Communist countries. Those political systems that held competitive elections were considered to be democratic (Schumpeter 1976). Plotke questions whether such a distinction continues to be useful. Plotke recommends that we broaden the scope of our understanding of political representation to encompass interest representation and thereby return to debating what is the proper activity of representatives. Plotke’s insight into why traditional understandings of political representation resonated prior to the end of the Cold War suggests that modern understandings of political representation are to some extent contingent on political realities. For this reason, those who attempt to define political representation should recognize how changing political realities can affect contemporary understandings of political representation. Again, following Pitkin, ideas about political representation appear contingent on existing political practices of representation. Our understandings of representation are inextricably shaped by the manner in which people are currently being represented. For an informative discussion of the history of representation, see Monica Brito Vieira and David Runican’s Representation .

As mentioned earlier, theoretical discussions of political representation have focused mainly on the formal procedures of authorization and accountability within nation states, that is, on what Pitkin called formalistic representation. However, such a focus is no longer satisfactory due to international and domestic political transformations. [For an extensive discussion of international and domestic transformations, see Mark Warren and Dario Castioglione (2004).] Increasingly international, transnational and non-governmental actors play an important role in advancing public policies on behalf of democratic citizens—that is, acting as representatives for those citizens. Such actors “speak for,” “act for” and can even “stand for” individuals within a nation-state. It is no longer desirable to limit one’s understanding of political representation to elected officials within the nation-state. After all, increasingly state “contract out” important responsibilities to non-state actors, e.g. environmental regulation. As a result, elected officials do not necessarily possess “the capacity to act,” the capacity that Pitkin uses to identify who is a representative. So, as the powers of nation-state have been disseminated to international and transnational actors, elected representatives are not necessarily the agents who determine how policies are implemented. Given these changes, the traditional focus of political representation, that is, on elections within nation-states, is insufficient for understanding how public policies are being made and implemented. The complexity of modern representative processes and the multiple locations of political power suggest that contemporary notions of accountability are inadequate. Grant and Keohane (2005) have recently updated notions of accountability, suggesting that the scope of political representation needs to be expanded in order to reflect contemporary realities in the international arena. Michael Saward (2009) has proposed an innovative type of criteria that should be used for evaluating non-elective representative claims. John Dryzek and Simon Niemayer (2008) has proposed an alternative conception of representation, what he calls discursive representation, to reflect the fact that transnational actors represent discourses, not real people. By discourses, they mean “a set of categories and concepts embodying specific assumptions, judgments, contentions, dispositions, and capabilities.” The concept of discursive representation can potentially redeem the promise of deliberative democracy when the deliberative participation of all affected by a collective decision is infeasible.

Domestic transformations also reveal the need to update contemporary understandings of political representation. Associational life — social movements, interest groups, and civic associations—is increasingly recognized as important for the survival of representative democracies. The extent to which interest groups write public policies or play a central role in implementing and regulating policies is the extent to which the division between formal and informal representation has been blurred. The fluid relationship between the career paths of formal and informal representatives also suggests that contemporary realities do not justify focusing mainly on formal representatives. Mark Warren’s concept of citizen representatives (2008) opens up a theoretical framework for exploring how citizens represent themselves and serve in representative capacities.

Given these changes, it is necessary to revisit our conceptual understanding of political representation, specifically of democratic representation. For as Jane Mansbridge has recently noted, normative understandings of representation have not kept up with recent empirical research and contemporary democratic practices. In her important article “Rethinking Representation” Mansbridge identifies four forms of representation in modern democracies: promissory, anticipatory, gyroscopic and surrogacy. Promissory representation is a form of representation in which representatives are to be evaluated by the promises they make to constituents during campaigns. Promissory representation strongly resembles Pitkin’s discussion of formalistic representation. For both are primarily concerned with the ways that constituents give their consent to the authority of a representative. Drawing on recent empirical work, Mansbridge argues for the existence of three additional forms of representation. In anticipatory representation, representatives focus on what they think their constituents will reward in the next election and not on what they promised during the campaign of the previous election. Thus, anticipatory representation challenges those who understand accountability as primarily a retrospective activity. In gyroscopic representation, representatives “look within” to derive from their own experience conceptions of interest and principles to serve as a basis for their action. Finally, surrogate representation occurs when a legislator represents constituents outside of their districts. For Mansbridge, each of these different forms of representation generates a different normative criterion by which representatives should be assessed. All four forms of representation, then, are ways that democratic citizens can be legitimately represented within a democratic regime. Yet none of the latter three forms representation operates through the formal mechanisms of authorization and accountability. Recently, Mansbridge (2009) has gone further by suggesting that political science has focused too much on the sanctions model of accountability and that another model, what she calls the selection model, can be more effective at soliciting the desired behavior from representatives. According to Mansbridge, a sanction model of accountability presumes that the representative has different interests from the represented and that the represented should not only monitor but reward the good representative and punish the bad. In contrast, the selection model of accountability presumes that representatives have self-motivated and exogenous reasons for carrying out the represented’s wishes. In this way, Mansbridge broadens our understanding of accountability to allow for good representation to occur outside of formal sanctioning mechanisms.

Mansbridge’s rethinking of the meaning of representation holds an important insight for contemporary discussions of democratic representation. By specifying the different forms of representation within a democratic polity, Mansbridge teaches us that we should refer to the multiple forms of democratic representation. Democratic representation should not be conceived as a monolithic concept. Moreover, what is abundantly clear is that democratic representation should no longer be treated as consisting simply in a relationship between elected officials and constituents within her voting district. Political representation should no longer be understood as a simple principal-agent relationship. Andrew Rehfeld has gone farther, maintaining that political representation should no longer be territorially based. In other words, Rehfeld (2005) argues that constituencies, e.g. electoral districts, should not be constructed based on where citizens live.

Lisa Disch (2011) also complicates our understanding of democratic representation as a principal-agent relationship by uncovering a dilemma that arises between expectations of democratic responsiveness to constituents and recent empirical findings regarding the context dependency of individual constituents’ preferences. In response to this dilemma, Disch proposes a mobilization conception of political representation and develops a systemic understanding of reflexivity as the measure of its legitimacy.

By far, one of the most important shifts in the literature on representation has been the “constructivist turn.” Constructivist approaches to representation emphasize the representative’s role in creating and framing the identities and claims of the represented. Here Michael Saward’s The Representative Claim is exemplary. For Saward, representation entails a series of relationships: “A maker of representations (M) puts forward a subject (S) which stands for an object (O) which is related to a referent (R) and is offered to an audience (A)” (2006, 302). Instead of presuming a pre-existing set of interests of the represented that representatives “bring into” the political arena, Saward stresses how representative claim-making is a “deeply culturally inflected practice.” Saward explicitly denies that theorists can know what are the interests of the represented. For this reason, the represented should have the ultimate say in judging the claims of the representative. The task of the representative is to create claims that will resonate with appropriate audiences.

Saward therefore does not evaluate representatives by the extent to which they advance the preferences or interests of the represented. Instead he focuses on the institutional and collective conditions in which claim-making takes place. The constructivist turn examines the conditions for claim-making, not the activities of particular representatives.

Saward’s “constructivist turn” has generated a new research direction for both political theorists and empirical scientists. For example, Lisa Disch (2015) considers whether the constructivist turn is a “normative dead” end, that is, whether the epistemological commitments of constructivism that deny the ability to identify interests will undermine the normative commitments to democratic politics. Disch offers an alternative approach, what she calls “the citizen standpoint”. This standpoint does not mean taking at face value whomever or whatever citizens regard as representing them. Rather, it is “an epistemological and political achievement that does not exist spontaneously but develops out of the activism of political movements together with the critical theories and transformative empirical research to which they give rise” (2015, 493). (For other critical engagements with Saward’s work, see Schaap et al, 2012 and Nässtrom, 2011).

There have been a number of important advances in theorizing the concept of political representation. In particular, these advances call into question the traditional way of thinking of political representation as a principal-agent relationship. Most notably, Melissa Williams’ recent work has recommended reenvisioning the activity of representation in light of the experiences of historically disadvantaged groups. In particular, she recommends understanding representation as “mediation.” In particular, Williams (1998, 8) identifies three different dimensions of political life that representatives must “mediate:” the dynamics of legislative decision-making, the nature of legislator-constituent relations, and the basis for aggregating citizens into representable constituencies. She explains each aspect by using a corresponding theme (voice, trust, and memory) and by drawing on the experiences of marginalized groups in the United States. For example, drawing on the experiences of American women trying to gain equal citizenship, Williams argues that historically disadvantaged groups need a “voice” in legislative decision-making. The “heavily deliberative” quality of legislative institutions requires the presence of individuals who have direct access to historically excluded perspectives.

In addition, Williams explains how representatives need to mediate the representative-constituent relationship in order to build “trust.” For Williams, trust is the cornerstone for democratic accountability. Relying on the experiences of African-Americans, Williams shows the consistent patterns of betrayal of African-Americans by privileged white citizens that give them good reason for distrusting white representatives and the institutions themselves. For Williams, relationships of distrust can be “at least partially mended if the disadvantaged group is represented by its own members”(1998, 14). Finally, representation involves mediating how groups are defined. The boundaries of groups according to Williams are partially established by past experiences — what Williams calls “memory.” Having certain shared patterns of marginalization justifies certain institutional mechanisms to guarantee presence.

Williams offers her understanding of representation as mediation as a supplement to what she regards as the traditional conception of liberal representation. Williams identifies two strands in liberal representation. The first strand she describes as the “ideal of fair representation as an outcome of free and open elections in which every citizen has an equally weighted vote” (1998, 57). The second strand is interest-group pluralism, which Williams describes as the “theory of the organization of shared social interests with the purpose of securing the equitable representation … of those groups in public policies” ( ibid .). Together, the two strands provide a coherent approach for achieving fair representation, but the traditional conception of liberal representation as made up of simply these two strands is inadequate. In particular, Williams criticizes the traditional conception of liberal representation for failing to take into account the injustices experienced by marginalized groups in the United States. Thus, Williams expands accounts of political representation beyond the question of institutional design and thus, in effect, challenges those who understand representation as simply a matter of formal procedures of authorization and accountability.

Another way of reenvisioning representation was offered by Nadia Urbinati (2000, 2002). Urbinati argues for understanding representation as advocacy. For Urbinati, the point of representation should not be the aggregation of interests, but the preservation of disagreements necessary for preserving liberty. Urbinati identifies two main features of advocacy: 1) the representative’s passionate link to the electors’ cause and 2) the representative’s relative autonomy of judgment. Urbinati emphasizes the importance of the former for motivating representatives to deliberate with each other and their constituents. For Urbinati the benefit of conceptualizing representation as advocacy is that it improves our understanding of deliberative democracy. In particular, it avoids a common mistake made by many contemporary deliberative democrats: focusing on the formal procedures of deliberation at the expense of examining the sources of inequality within civil society, e.g. the family. One benefit of Urbinati’s understanding of representation is its emphasis on the importance of opinion and consent formation. In particular, her agonistic conception of representation highlights the importance of disagreements and rhetoric to the procedures, practices, and ethos of democracy. Her account expands the scope of theoretical discussions of representation away from formal procedures of authorization to the deliberative and expressive dimensions of representative institutions. In this way, her agonistic understanding of representation provides a theoretical tool to those who wish to explain how non-state actors “represent.”

Other conceptual advancements have helped clarify the meaning of particular aspects of representation. For instance, Andrew Rehfeld (2009) has argued that we need to disaggregate the delegate/trustee distinction. Rehfeld highlights how representatives can be delegates and trustees in at least three different ways. For this reason, we should replace the traditional delegate/trustee distinction with three distinctions (aims, source of judgment, and responsiveness). By collapsing these three different ways of being delegates and trustees, political theorists and political scientists overlook the ways in which representatives are often partial delegates and partial trustees.

Other political theorists have asked us to rethink central aspects of our understanding of democratic representation. In Inclusion and Democracy Iris Marion Young asks us to rethink the importance of descriptive representation. Young stresses that attempts to include more voices in the political arena can suppress other voices. She illustrates this point using the example of a Latino representative who might inadvertently represent straight Latinos at the expense of gay and lesbian Latinos (1986, 350). For Young, the suppression of differences is a problem for all representation (1986, 351). Representatives of large districts or of small communities must negotiate the difficulty of one person representing many. Because such a difficulty is constitutive of representation, it is unreasonable to assume that representation should be characterized by a “relationship of identity.” The legitimacy of a representative is not primarily a function of his or her similarities to the represented. For Young, the representative should not be treated as a substitute for the represented. Consequently, Young recommends reconceptualizing representation as a differentiated relationship (2000, 125–127; 1986, 357). There are two main benefits of Young’s understanding of representation. First, her understanding of representation encourages us to recognize the diversity of those being represented. Second, her analysis of representation emphasizes the importance of recognizing how representative institutions include as well as they exclude. Democratic citizens need to remain vigilant about the ways in which providing representation for some groups comes at the expense of excluding others. Building on Young’s insight, Suzanne Dovi (2009) has argued that we should not conceptualize representation simply in terms of how we bring marginalized groups into democratic politics; rather, democratic representation can require limiting the influence of overrepresented privileged groups.

Moreover, based on this way of understanding political representation, Young provides an alterative account of democratic representation. Specifically, she envisions democratic representation as a dynamic process, one that moves between moments of authorization and moments of accountability (2000, 129). It is the movement between these moments that makes the process “democratic.” This fluidity allows citizens to authorize their representatives and for traces of that authorization to be evident in what the representatives do and how representatives are held accountable. The appropriateness of any given representative is therefore partially dependent on future behavior as well as on his or her past relationships. For this reason, Young maintains that evaluation of this process must be continuously “deferred.” We must assess representation dynamically, that is, assess the whole ongoing processes of authorization and accountability of representatives. Young’s discussion of the dynamic of representation emphasizes the ways in which evaluations of representatives are incomplete, needing to incorporate the extent to which democratic citizens need to suspend their evaluations of representatives and the extent to which representatives can face unanticipated issues.

Another insight about democratic representation that comes from the literature on descriptive representation is the importance of contingencies. Here the work of Jane Mansbridge on descriptive representation has been particularly influential. Mansbridge recommends that we evaluate descriptive representatives by contexts and certain functions. More specifically, Mansbridge (1999, 628) focuses on four functions and their related contexts in which disadvantaged groups would want to be represented by someone who belongs to their group. Those four functions are “(1) adequate communication in contexts of mistrust, (2) innovative thinking in contexts of uncrystallized, not fully articulated, interests, … (3) creating a social meaning of ‘ability to rule’ for members of a group in historical contexts where the ability has been seriously questioned and (4) increasing the polity’s de facto legitimacy in contexts of past discrimination.” For Mansbridge, descriptive representatives are needed when marginalized groups distrust members of relatively more privileged groups and when marginalized groups possess political preferences that have not been fully formed. The need for descriptive representation is contingent on certain functions.

Mansbridge’s insight about the contingency of descriptive representation suggests that at some point descriptive representatives might not be necessary. However, she doesn’t specify how we are to know if interests have become crystallized or trust has formed to the point that the need for descriptive representation would be obsolete. Thus, Mansbridge’s discussion of descriptive representation suggests that standards for evaluating representatives are fluid and flexible. For an interesting discussion of the problems with unified or fixed standards for evaluating Latino representatives, see Christina Beltran’s The Trouble with Unity .

Mansbridge’s discussion of descriptive representation points to another trend within the literature on political representation — namely, the trend to derive normative accounts of representation from the representative’s function. Russell Hardin (2004) captured this trend most clearly in his position that “if we wish to assess the morality of elected officials, we must understand their function as our representatives and then infer how they can fulfill this function.” For Hardin, only an empirical explanation of the role of a representative is necessary for determining what a representative should be doing. Following Hardin, Suzanne Dovi (2007) identifies three democratic standards for evaluating the performance of representatives: those of fair-mindedness, critical trust building, and good gate-keeping. In Ruling Passions , Andrew Sabl (2002) links the proper behavior of representatives to their particular office. In particular, Sabl focuses on three offices: senator, organizer and activist. He argues that the same standards should not be used to evaluate these different offices. Rather, each office is responsible for promoting democratic constancy, what Sabl understands as “the effective pursuit of interest.” Sabl (2002) and Hardin (2004) exemplify the trend to tie the standards for evaluating political representatives to the activity and office of those representatives.

There are three persistent problems associated with political representation. Each of these problems identifies a future area of investigation. The first problem is the proper institutional design for representative institutions within democratic polities. The theoretical literature on political representation has paid a lot of attention to the institutional design of democracies. More specifically, political theorists have recommended everything from proportional representation (e.g. Guinier, 1994 and Christiano, 1996) to citizen juries (Fishkin, 1995). However, with the growing number of democratic states, we are likely to witness more variation among the different forms of political representation. In particular, it is important to be aware of how non-democratic and hybrid regimes can adopt representative institutions to consolidate their power over their citizens. There is likely to be much debate about the advantages and disadvantages of adopting representative institutions.

This leads to a second future line of inquiry — ways in which democratic citizens can be marginalized by representative institutions. This problem is articulated most clearly by Young’s discussion of the difficulties arising from one person representing many. Young suggests that representative institutions can include the opinions, perspectives and interests of some citizens at the expense of marginalizing the opinions, perspectives and interests of others. Hence, a problem with institutional reforms aimed at increasing the representation of historically disadvantaged groups is that such reforms can and often do decrease the responsiveness of representatives. For instance, the creation of black districts has created safe zones for black elected officials so that they are less accountable to their constituents. Any decrease in accountability is especially worrisome given the ways citizens are vulnerable to their representatives. Thus, one future line of research is examining the ways that representative institutions marginalize the interests, opinions and perspectives of democratic citizens.

In particular, it is necessary for to acknowledge the biases of representative institutions. While E. E. Schattschneider (1960) has long noted the class bias of representative institutions, there is little discussion of how to improve the political representation of the disaffected — that is, the political representation of those citizens who do not have the will, the time, or political resources to participate in politics. The absence of such a discussion is particularly apparent in the literature on descriptive representation, the area that is most concerned with disadvantaged citizens. Anne Phillips (1995) raises the problems with the representation of the poor, e.g. the inability to define class, however, she argues for issues of class to be integrated into a politics of presence. Few theorists have taken up Phillip’s gauntlet and articulated how this integration of class and a politics of presence is to be done. Of course, some have recognized the ways in which interest groups, associations, and individual representatives can betray the least well off (e.g. Strolovitch, 2004). And some (Dovi, 2003) have argued that descriptive representatives need to be selected based on their relationship to citizens who have been unjustly excluded and marginalized by democratic politics. However, it is unclear how to counteract the class bias that pervades domestic and international representative institutions. It is necessary to specify the conditions under which certain groups within a democratic polity require enhanced representation. Recent empirical literature has suggested that the benefits of having descriptive representatives is by no means straightforward (Gay, 2002).

A third and final area of research involves the relationship between representation and democracy. Historically, representation was considered to be in opposition with democracy [See Dahl (1989) for a historical overview of the concept of representation]. When compared to the direct forms of democracy found in the ancient city-states, notably Athens, representative institutions appear to be poor substitutes for the ways that citizens actively ruled themselves. Barber (1984) has famously argued that representative institutions were opposed to strong democracy. In contrast, almost everyone now agrees that democratic political institutions are representative ones.

Bernard Manin (1997)reminds us that the Athenian Assembly, which often exemplifies direct forms of democracy, had only limited powers. According to Manin, the practice of selecting magistrates by lottery is what separates representative democracies from so-called direct democracies. Consequently, Manin argues that the methods of selecting public officials are crucial to understanding what makes representative governments democratic. He identifies four principles distinctive of representative government: 1) Those who govern are appointed by election at regular intervals; 2) The decision-making of those who govern retains a degree of independence from the wishes of the electorate; 3) Those who are governed may give expression to their opinions and political wishes without these being subject to the control of those who govern; and 4) Public decisions undergo the trial of debate (6). For Manin, historical democratic practices hold important lessons for determining whether representative institutions are democratic.

While it is clear that representative institutions are vital institutional components of democratic institutions, much more needs to be said about the meaning of democratic representation. In particular, it is important not to presume that all acts of representation are equally democratic. After all, not all acts of representation within a representative democracy are necessarily instances of democratic representation. Henry Richardson (2002) has explored the undemocratic ways that members of the bureaucracy can represent citizens. [For a more detailed discussion of non-democratic forms of representation, see Apter (1968). Michael Saward (2008) also discusses how existing systems of political representation do not necessarily serve democracy.] Similarly, it is unclear whether a representative who actively seeks to dismantle democratic institutions is representing democratically. Does democratic representation require representatives to advance the preferences of democratic citizens or does it require a commitment to democratic institutions? At this point, answers to such questions are unclear. What is certain is that democratic citizens are likely to disagree about what constitutes democratic representation.

One popular approach to addressing the different and conflicting standards used to evaluate representatives within democratic polities, is to simply equate multiple standards with democratic ones. More specifically, it is argued that democratic standards are pluralistic, accommodating the different standards possessed and used by democratic citizens. Theorists who adopt this approach fail to specify the proper relationship among these standards. For instance, it is unclear how the standards that Mansbridge identifies in the four different forms of representation should relate to each other. Does it matter if promissory forms of representation are replaced by surrogate forms of representation? A similar omission can be found in Pitkin: although Pitkin specifies there is a unified relationship among the different views of representation, she never describes how the different views interact. This omission reflects the lacunae in the literature about how formalistic representation relates to descriptive and substantive representation. Without such a specification, it is not apparent how citizens can determine if they have adequate powers of authorization and accountability.

Currently, it is not clear exactly what makes any given form of representation consistent, let alone consonant, with democratic representation. Is it the synergy among different forms or should we examine descriptive representation in isolation to determine the ways that it can undermine or enhance democratic representation? One tendency is to equate democratic representation simply with the existence of fluid and multiple standards. While it is true that the fact of pluralism provides justification for democratic institutions as Christiano (1996) has argued, it should no longer presumed that all forms of representation are democratic since the actions of representatives can be used to dissolve or weaken democratic institutions. The final research area is to articulate the relationship between different forms of representation and ways that these forms can undermine democratic representation.

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G. Democratic Representation

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• FairVote Program for Representative Government
• Proportional Representation Library , provides readings proportional representation elections created by Prof. Douglas J. Amy, Dept. of Politics, Mount Holyoke College
• Representation , an essay by Ann Marie Baldonado on the Postcolonial Studies website at Emory University.
• Representation: John Locke, Second Treatise, §§ 157–58 , in The Founders’ Constitution at the University of Chicago Press
• Popular Basis of Political Authority: David Hume, Of the Original Contract , in The Founders’ Constitution at the University of Chicago Press

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Meeting the ideal of one man, one vote.

The issue of fair representation will take center stage as U.S. congressional districts are reapportioned based on the 2000 Census. Using U.S. history as a guide, the authors develop a...

The issue of fair representation will take center stage as U.S. congressional districts are reapportioned based on the 2000 Census. Using U.S. history as a guide, the authors develop a theory of fair representation that establishes various principles for translating state populations—or vote totals of parties—into a fair allocation of congressional seats. They conclude that the current apportionment formula cheats the larger states in favor of the smaller, contrary to the intentions of the founding fathers and compromising the Supreme Court’s “one man, one vote” rulings. Balinski and Young interweave the theoretical development with a rich historical account of controversies over representation, and show how many of these principles grew out of political contests in the course of United States history. The result is a work that is at once history, politics, and popular science. The book—updated with data from the 1980 and 1990 Census counts—vividly demonstrates that apportionment deals with the very substance of political power.

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Michel L. Balinski is the former director of the Laboratoire d'Econométrie of the Ecole Polytechnique in Paris, the founding editor of the journal Mathematical Programming. and is a noted authority on mathematical optimization and operations research. H. Peyton Young is a senior fellow in the Economic Studies program at the Brookings Institution and Scott and Barbara Black professor of economics at Johns Hopkins University. He is the author of several books, including Individual Strategy and Social Structure (Princeton, 1998) and Equity in Theory and Practice (Princeton, 1994).

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Duty of Fair Representation

The duty of fair representation requires a union to treat bargaining unit members fairly and honestly, in a manner that is not arbitrary, discriminatory or in bad faith.

What the Law Says

The Canada Labour Code , Part 1, the Public Service Labour Relations Act ( PSLRA ), and most provincial and territorial labour laws address a union’s duty of fair representation (DFR). 

The language varies from statute to statute, but essentially, the duty of fair representation requires a union to treat bargaining unit members fairly and honestly, in a manner that is not arbitrary, discriminatory or in bad faith.  Part 1 of the Canada Labour Code (Sec. 37) and Sec. 187 of the PSLRA describe it as follows:   

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

Unfair representation by bargaining agent

No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

Legal principles

In Canadian Merchant Service Guild v. Gagnon [1984] 1 S.C.R. 509, the Supreme Court of Canada determined:

The following principles concerning a union’s duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted.

• The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
• When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
• This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and its consequences for the employee on one hand and the legitimate interests of the union on the other.
• The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
• The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee. 

From these and other case law principles, we know that:

• The duty of fair representation applies to issues between an individual bargaining unit member and the union concerning representation of the employee in relation to the employer.
• The duty of fair representation does not normally apply to internal union matters, whether or not they relate to representation.  Generally speaking, a DFR complaint cannot be used as a vehicle to review the internal affairs of the union on issues such as union procedures with respect to determining union representatives or union decisions on the payment of representation expenses.
• It should be noted that both the Canada Labour Code and the Public Service Labour Relations Act specifically prohibit a trade union from exercising union rules concerning membership or applying standards of discipline in a discriminatory manner. 
• The duty of fair representation in most labour jurisdictions covers matters with respect to a union’s administration of the collective agreement (i.e., the grievance and arbitration process).  The duty may also apply, depending on the jurisdiction, to the negotiation of the collective agreement itself.  In the case of PSLRA units, the duty may extend beyond those matters specified in the Act, and apply to, for example, complaints under the Public Service Employment Act .
• The duty of fair representation applies to all members of the bargaining unit.  This means members in good standing, Rand Deductees, suspended members, employees exempted from paying dues as a result of a religious exemption provision in the collective agreement or statute, and members on leave without pay status.  It is irrelevant if the member of the bargaining unit is, or is not, paying union dues.  In the case of someone who changes bargaining units (or has been occupying a position excluded from the bargaining unit), the duty exists if the matter at issue arose at the time the person was a member of a PSAC bargaining unit.
• The duty of fair representation does not guarantee that a union will represent a member of the bargaining unit in all cases.  DFR recognizes that a union must balance the needs of the individual with the needs of the membership as a whole, and in doing so, the union may find that it is in the best interests of the membership as a whole to not support a particular grievance.  The duty of fair representation requires simply that the decision be made honestly, in a manner that is not arbitrary, discriminatory or in bad faith.
• The interests of the membership as a whole should not be confused with the “interests of the majority”.  The duty of fair representation is in addition to our responsibilities under the respective human rights legislation.  While our conduct may satisfy the statutory requirements of the duty of fair representation, it may not meet the standards demanded by human rights legislation if there is a discriminatory impact of our actions on one or more persons from a protected group.
• Unions have been held to a higher standard of care in discharging DFR obligations when human rights principles are at issue.  This includes the duty to accommodate.  It has been established that a union must provide accommodations within the grievance and arbitration process.  This may mean exercising greater sensitivity than would normally be necessary, being more proactive or attentive than usual, or taking an extra measure of care or assertiveness.  It may also mean taking different approaches to advocating on the member’s behalf or in the processing of a grievance.  For example, in the case of a person with a psychiatric disability or someone observing a period of no contact for religious reasons, a union would need to provide more generous time limits for receipt of documents. 
• The particular circumstances will dictate whether or not treatment is found to be arbitrary, discriminatory or in bad faith.  Conduct is “arbitrary” if it is superficial, indifferent or in reckless disregard of an individual’s interests.  “Discriminatory” practices are when members of the bargaining unit are dealt with unequally on account of factors such as race or sex or through simple personal favouritism, unless there are valid reasons for doing so.  “Bad faith” decisions are those based on ill-will, hostility, revenge or dishonesty. 

Origins of the duty of fair representation

For some stewards, the notion of providing representation to a scab, or someone who has refused to sign a union card, runs counter to principles they hold in high esteem.  For others, the thought of not providing representation on a member’s grievance is just as unprincipled.  Therefore, some awareness of how DFR evolved may lead to a better understanding of how it attempts to balance a number of important principles.

The term, “duty of fair representation” was first used in the United States in the 1940s.  In 1944, the U.S. Supreme Court dealt with the refusal of a union to admit African Americans as fully equal bargaining unit members in the case of Steel v. Louisville & Nashville Railroad Co. 323 U.S. 192.  The court ruled that the union’s exclusive right to represent all employees in the bargaining unit included the accompanying obligation to represent all employees without hostile discrimination, fairly, impartially and in good faith.

The development of Canadian law was influenced, in part, by the views of Archibald Cox.  In his 1957 article, Individual Enforcement of Collective Bargaining Agreements , Professor Cox argued that permitting individuals to advance claims to arbitration would impede the development of good labour relations in four ways.         

• The pursuit of ad hoc individual claims would lead to divergent rulings.
• If some individuals could secure better settlements through their own efforts, it would undermine the effectiveness of the union.  This could lead to dissenting groups and competition with the union, and lead to labour relations instability.
• The possibility of competition and dissension could result in a reluctance of union representatives to settle issues early in the grievance process, and lead to more arbitrations.
• It would be difficult to distinguish between those claims that could be legitimately brought by individuals and those that could only be brought by a union.

While agreeing that permitting individuals access to the arbitration process would provide the best protection against incompetent or arbitrary union representatives, Professor Cox argued that the cost of such an arrangement would be too high.  Ultimately, he called for the development of a duty of fair representation, rather than giving individuals access to arbitration*.

[*Unless the collective agreement or a statute so provides, an employee cannot refer a grievance to arbitration without the union’s approval.  For example, the PSLRA provides for individual access to adjudication in cases of disciplinary action resulting in termination, demotion, suspension or financial penalty, and certain types of non-disciplinary termination, demotion or deployment.  It should be noted that the right of the employee to proceed to adjudication does not absolve the union of its duty of fair representation.  In addition, when a union declines referral and representation at adjudication, it is incumbent on the union to notify the person of his/her right to proceed without union support.]   

It’s about a Union’s Right to Choose

The exclusive power of a union to choose whether or not to provide representation is a necessity.  The right of a union to make a choice is vital. 

To suggest we must represent on every grievance is to remove our ability to choose to further certain causes or to promote certain fundamental interests.  How, for example, can we protect and extend workers’ rights to an harassment-free workplace if we are forced to provide representation in the case of every member of the bargaining unit accused of harassment?  How, for example, can the union promote the accommodation of persons with disabilities or the employment of underrepresented equity group members if we must process the grievance of every member of the bargaining unit who perceives a lost opportunity for themselves as a result?  How can we protect and expand collective rights if we must proceed with a grievance with no chance of success and the knowledge that “bad facts make bad case law”?  How can the union remain fiscally viable if we must shoulder the huge costs of arbitrating each and every case that an individual member of the bargaining unit believes has merit?

It is true that the pursuit of individual claims, in many cases, advances the interests of the collective.  However, that is not always the situation.  There are times when individual and collective rights and interests are in conflict, and the union must make a choice.  The duty of fair representation recognizes that reality.  The duty of fair representation provides the necessary checks and balances to ensure that unions are not motivated by improper considerations in their decision-making.  It is the quid pro quo * for a union’s right to make choices.   

If the union could refuse to represent a scab or someone who refuses to sign a union card, based on those grounds, it would stand to reason that those persons should have the ability to seek representation elsewhere (or represent themselves).  This would surely place collective interests in jeopardy.  The possibilities of private deals with the employer would undermine the principles of collective bargaining.  The risks of conflicting case law and bad precedent would become unacceptably high.  The opportunities to advance social principles and causes would be threatened.

The Supreme Court of Canada recognizes that a union must be free to pursue its legitimate goals and protect its legitimate interests.  Protecting and advancing collective interests and rights will mean that the union will have to make some tough decisions.  Some will negatively impact on individual members.  The care that we take in exercising our duty of fair representation will undoubtedly contribute to building the necessary understanding, analysis and support within a membership that cares about collective interests, and values the union’s role as an important vehicle of social change.

[* quid pro quo is a Latin term meaning “something in exchange for something” or “one thing for another”.]

Discharging the duty

The reality is that unions provide levels of representation that exceed the minimum standards under the duty of fair representation in an overwhelming majority of cases.  The following guidelines will assist representatives in discharging our obligations, and indeed, in meeting the high standards to which we hold ourselves. 

Tips for Stewards

• Communicate regularly with other stewards and the chief steward on issues of representation.  Gather materials and actively pursue training opportunities to update your knowledge and skills.
• Develop a working knowledge of DFR.  Become familiar with the legislation and the precise nature of our obligations.  Read a number of decisions on DFR complaints.  Visit the web site of the labour board administering the legislation that applies to your local (e.g., Canada Industrial Labour Relations Board; BC Labour Relations Board).
• When looking for advice, always start with local representatives (other stewards, chief steward or a member of the local executive).  Also, find out who within the union is your local’s “technical advisor” and the normal procedures to contact that person.  Every local has access to a Component Service Officer and Regional Vice President (job and position titles vary), or in the case of directly chartered locals, a PSAC Regional Representative.  These representatives have further access to a wide range of technical resources and expertise within the PSAC.      
• Become thoroughly familiar with PSAC Anti-Harassment Policy: The Workplace (#23A).  Should you be contacted by a member of the bargaining unit concerning harassment issues, carefully review it again and follow it stringently.  If in doubt, get advice.
• While there is considerable uncertainty about how far the duty of fair representation extends, it is always wise to conduct ourselves as if it did.  Before telling a member of the bargaining unit we don’t provide representation on a particular issue or in particular circumstances, get advice.  
• Talk about settlement possibilities with the member before filing a grievance, while paying attention to the time limits built into the grievance procedure.  Try to resolve the matter with the employer as early as possible, keeping in mind that a good settlement is one that is better or as good as one achieved through arbitration.  Throughout the entire process, discuss all settlement proposals and offers with the member/ grievor and record a summary for the file.
• Evaluate the consequences of proceeding, or not, with each and every grievance.  Thoroughly examine whether or not the grievance has merit.  Carefully weigh the interests of the individual with those of the collective.  If a decision is made to not proceed with a grievance, it may be wise to obtain an opinion from the appropriate component or PSAC representative within the time frames established by the grievance procedure.  Obtain extensions if necessary.
• If you find yourself in a conflict of interest situation, take the necessary steps to ensure another steward is assigned.  Approach all representation with objectivity, free of any personal bias, hostility or favouritism.
• Always obtain the grievor’s complete version of events and where possible, ask the grievor to describe the incidents and outline the issues in writing.  Thoroughly investigate, as early as possible.  Never rely solely on the employer’s version or conclusions.  Interview all available witnesses and ask them for written statements or keep notes of what they tell you.  Expect the grievor to be cooperative, straightforward and forthcoming with information.  Record all contact with the grievor with a date and brief summary, and place it in the file.
• Don’t make promises you can’t control or keep.  It is the employer or an arbitrator who decides a grievance, not the union.  All we can do is provide the best possible representation, and challenge those decisions we consider unsatisfactory.
• Never make a commitment to pursue the grievance at each and every level, including arbitration.  A decision to present a grievance at one level does not presuppose agreement to proceed to the next level. 
• Approach file management with due diligence.  Obtain a copy of the PSAC Grievance File Checklist for the front of the file.  Include the grievance presentation and transmittal forms, completed Steward Factsheet and a list of all documents.  Note time limits.  Ensure the original file is forwarded promptly to the union representative responsible for representation at the next level in the grievance procedure.  
• Keep the grievor informed at each stage of the grievance procedure, even if you are not the representative at a higher level.  Provide full details of the status of the grievance, and be candid about its chances of success. 
• Where the treatment of a grievor or grievance differs from past practice, ensure it is for valid reasons and note them in the file.  
• If for some reason time limits specified in the collective agreement have been missed, proceed anyway.  The employer may fail to object, or may agree to extend the time limits (or, the labour board may extend the time limits).
• The more serious the consequences the employer’s actions are for the grievor (e.g., termination of employment), the more rigorously we will be held to our statutory obligations.  As a matter of practice, a steward should approach all representation with diligence and thoroughness.     

A final comment about the duty of fair representation is that a representative is required to always take a reasonable and objective view of the problem and its relevant and conflicting factors, and arrive at a thoughtful judgment about what to do.  The union will not be held to account if a mistake or simple error in judgment is made.  A union’s conduct must be more than just wrong.  It must be arbitrary, discriminatory or in bad faith.

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How a new way of electing the House can change our politics

The House of Representatives

Penrose is the lead author of “ Our Shared Republic: The Case for Proportional Representation in the U.S. House of Representatives .” Daley is the author of “ Ratf**ked: Why Your Vote Doesn’t Count ” and “ Unrigged: How Americans Are Battling Back to Save Democracy .”

Our country is more politically sorted than it has been in a century, but we are not nearly as sorted as the simple narrative suggests. Liberal voters live in the reddest parts of rural America, and conservative voters live in the bluest of cities. However, they are invisible in winner-take-all congressional elections. Every vote they cast fails to elect anyone.

That means they’re invisible in Congress itself, which John Adams wrote “should be in miniature, an exact portrait of the people.” Instead, the people’s House is the very picture of gridlock and extremism. It’s an unrepresentative body sent to Washington from uncompetitive districts in hyper-polarized times that has hamstrung action even on issues where large majorities of us agree.

While our politics may seem intractably broken, there are solutions available, if we can muster the will to change. Much of the national reform energy revolves around ending gerrymandering or opening primaries, but while both of those fixes would do some good around the margins in a handful of states, genuinely solving the problem everywhere requires a bolder approach.

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The most meaningful change would put an end to winner-take-all, single-member districts and create a proportional House with larger, multimember districts and proportional voting. This might sound like a big lift, but it’s fully constitutional, deeply aligned with our founding vision, and only requires Congress to pass a statute. For example, the Fair Representation Act, a bill to be reintroduced in Congress this week by Reps. Don Beyer (D-Va.) and Jamie Raskin (D-Md.), would do just that by requiring every state to replace its winner-take-all elections with proportional ranked-choice voting.

The advantages of a proportional system would be dramatic and immediate. It would make every contest competitive in every state. It would end gerrymandering and more fully represent the breadth of ideas held by voters. It would greatly expand opportunities for communities of color to build power. And it would create incentives for legislators to work productively in service of the public interest rather than to obstruct and demean their opponents.

Single-member, winner-take-all robs us of the diversity of ideas and interests that exist across all regions of the country. Massachusetts, for example, is a blue state. In 2020, all nine of its congressional districts were safely Democratic. Yet across those districts, 1.2 million people backed Donald Trump for president. Likewise, the band of states running up the center of the country, consisting of Oklahoma, Kansas, Nebraska and the Dakotas, elected a combined 14 representatives, 13 of whom were Republicans. Yet across those 13 Republican districts, 1.5 million people wanted Joe Biden to be president.

In every congressional election, around 90 percent of districts have no meaningful competition at all. Polarization of the two major parties has created a self-reinforcing cycle of distrust that has already resulted in one abortive insurrection. New England Republicans and heartland Democrats currently lack a voice – when we know from history that when elected, they’re the bridge-builders who bring coalitions together.

A simulation of the Fair Representation Act showed that proportional ranked-choice voting and multimember districts would yield the equivalent electoral power of 30 new majority-minority districts nationwide. Under this system, a far greater proportion of voters of color would have a representative who is responsive to their community, including nearly all Black voters in the Deep South and nearly all Latino voters in the Southwest.

Today’s winner-take-all methods allow representatives to win elections with only a very small coalition of support, wasting the votes of all others. Too often, the expressway to Congress from a gerrymandered district is to run to the extremes in a low-turnout primary. Consider the election of Rep. Marjorie Taylor Greene of Georgia, whose safe Republican district is home to about 730,000 people. Yet Greene won both her primary and her primary runoff election with fewer than 44,000 supporters.

The coalition that elected her is tiny, and neither ideologically nor demographically representative of the district as a whole. Her track record as a representative reflects that; she favors incendiary and extreme rhetoric that excites a small, dedicated group of voters over building coalitions for effective governance that would help more people.

If a substantial number of voters in a district want to elect a bombastic populist, it is their right to vote for that candidate. Under proportional ranked-choice voting, however, such a candidate would have to win a competitive general election and demonstrate the support of a substantial constituency. Extremists can win some seats under proportional voting methods too, but the incentives change in a way that tends to moderate, productive government overall. There would be competition in the general election – and with far different incentives to appeal to everyone in November, rather than the fringes in a summer primary.

Proportional representation really means full representation: Nearly every voter (at least 83 percent in a five-member district, for example) can point to an elected representative whom they voted for and helped elect. The proportion of effective votes — those that actually elected someone — is far higher than under winner-take-all.

And with proportional ranked-choice voting, the number of voters who ranked a winner as one of their top choices will be even higher. Voters need not fear “wasting” their vote on a longshot candidate; their vote can simply count for a backup choice if their favorite doesn’t stand a chance.

The adoption of proportional ranked-choice voting in the U.S. House of Representatives would help to realize James Madison’s vision for the chamber: a government able to temper the violence of faction through the representation of a great diversity of interests. So that the republic will not be mine or yours, but ours, and not be ruled, but shared.

• What Georgia teaches us about the problems with winner-take-all elections ›
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• Winning proportional representation: How the U.S. can follow New Zealand’s lead ›
• Winning proportional representation: Lessons from New Zealand ›
• The worst gerrymandered districts can go away - The Fulcrum ›
• Democrats take another crack at Fair Representation Act - The Fulcrum ›
• Proportional representation - Ballotpedia ›
• Proportional Representation Voting Systems - FairVote ›
• Proportional representation, explained ›

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Accounting Policies – Fair Presentation and Faithful Representation for IFRS

What does fair presentation mean.

Financial statements are described as showing a ‘true and fair view’ when they are free from material misstatements and faithfully represent the financial performance and position of an entity.

In some countries, this is an essential part of financial reporting.

Under International Financial Reporting Standards, financial statements are required to present fairly the financial position, financial performance and cash flows of the entity.

This issue is not dealt with directly by the Framework.

However, if an entity complies with International Financial Reporting Standards, and if its financial information is both relevant and faithfully represented, then the financial statements ‘should convey what is generally understood as a true and fair view of such information’.

Under IAS 1, ‘Fair presentation requires the faithful representation of the effects of transactions, other events and conditions in accordance with the definitions and recognition criteria for assets, liabilities, income and expenses set out in the IASB Framework.

What does faithful representation mean?

Faithful representation means more than that the amounts in the financial statements should be materially correct.

The information should present clearly the transactions and other events that it is intended to represent.

Also, the financial information must account for transactions and other events in a way that reflects their true substance and economic reality, their commercial impact, rather than their strict legal form.

If there is a difference between substance and legal form, the financial information should represent the economic substance.

An example of this is when a company enters into a finance lease, the substance of the transaction requires the entity to record an asset in its financial statements and a corresponding liability for the lease payments due.

Faithful representation also requires the presentation of financial information in a way that is not misleading to users, and that important information is not concealed or obscured as this may be misleading.

Fair presentation and compliance with IFRSs

“Fair presentation” is presumed when the International Financial Reporting Standards are applied with necessary disclosures.

Under IAS 1:

• When the financial statements of an entity fully comply with International Financial Reporting Standards, this should be disclosed.
• Financial statements should not be described as compliant with IFRSs unless they comply with all of the International Financial Reporting Standards.

So IAS 1 assumes financial statements are presented fairly when they comply with accounting standards.

However, it is important to remember the spirit and nature of the accounting standard, and not its strict definition when preparing financial statements.

This is especially true for complex transactions which may not be covered by an accounting standard.

In these cases, the substance of the transaction should take precedence over the strict legal form of the transaction.

Under IAS 1, fair presentation also requires an entity:

• to select and apply accounting policies in accordance with IAS 8 Accounting policies, changes in accounting estimates and errors. IAS 8 sets out guidance for management on how to account for a transaction if no accounting standard is applicable
• to present information in a manner that provides relevant, reliable, comparable and understandable information
• to provide additional disclosures where these are necessary to enable users to understand the financial position and performance of the entity, even where additional disclosure is not required by the accounting standards.

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(Definition of fair and representation from the Cambridge English Dictionary © Cambridge University Press)

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