Disruptive union officials

Question: A new union business agent who was not involved in recent collective bargaining is telling employees to grieve everything and the union will send all grievances to arbitration because the company can't afford it. What can we do?

Answer: Most employers would begin by seeking to resolve this issue through direct discussions with the union business agent or his superiors. Responsible trade unions usually will not condone the filing of frivolous grievances, as they disrupt production, harm the relationship between the parties, expose both the union and the employer to unnecessary cost and can negatively affect the timely and effective resolution of meritorious grievances.

In some jurisdictions, the labour relations tribunal may be able to offer informal assistance. In British Columbia, for example, the Mediation Division of the Labour Relations Board operates a conflict management and relationship enhancement program, which is available to employers and trade unions who want help resolving relationship issues.

If an informal resolution can’t be achieved, the employer may be left with few options aside from defending the grievances on their merits. In all Canadian jurisdictions, collective agreements are required to contain provisions for the resolution of mid-contract disputes without stoppage of work, either by arbitration or another method agreed to. Generally speaking, an employer and a trade union cannot dictate which grievances the other party chooses to refer to arbitration, or how many grievances are referred, a principle upheld by the Ontario Arbitration Board in International Nickel Co. of Canada Ltd.

However, this right is not absolute. Arbitrators and courts may dismiss a grievance for abuse of process, which the Supreme Court of Canada did in A.U.P.E. v. Lethbridge Community College and the British Columbia Supreme Court did in I.L.W.U., Local 514 v. Fraser Surrey Docks Ltd.

In Surrey Memorial Hospital v. H.E.U., the B.C. Labour Arbitration board confirmed arbitrators can dismiss a grievance if it is considered frivolous and an abuse of process.

“It is incumbent upon us to remedy an abuse of the arbitration process in order to protect its integrity and society's interest in a fair process, the B.C. Arbitration Board said in Surrey. “The doctrine of abuse of process allows a grievance to be dismissed because it is so tainted that to allow it to proceed would harm the integrity of the system.”

The dismissal of a grievance for abuse of process will likely only happen in exceptional circumstances. Factors to be considered include the nature of the issue raised in the grievance, the conduct and legitimacy of the parties, the rights and interests of the grievor, the entitlement of the parties to a fair hearing and the community’s interest in the integrity of the grievance and arbitration process.

If a grievance has been filed frivolously, in bad faith or for the primary purpose of harassing or bankrupting the employer, the arbitrator has the authority to intervene and fashion an appropriate remedy. In International Nickel, the Ontario Arbitration Board said the following about grievances of this nature: