How Decisions Hold Up: Process as the Measure of Fair Representation
In a unionized workplace, the union serves as the collective voice of employees. As the exclusive bargaining agent, it controls how issues pertaining to workplace rights are advanced and resolved.
That authority carries a corresponding obligation: the duty of fair representation (“DFR”).[1] In Nova Scotia, section 54A(3) of the Trade Union Act codifies the DFR, providing that no union or person acting on its behalf shall act in a manner that is arbitrary, discriminatory, or in bad faith in the representation of any employee in the bargaining unit with respect to rights under a collective agreement.
This article considers what that duty looks like in practice and where its limits lie, drawing on a recent Nova Scotia Labour Board decision.
Duty of Fair Representation: Why it Exists, Why it Matters
The duty of fair representation exists because employees generally cannot act on their own to enforce workplace rights under a collective agreement. As the Nova Scotia Court of Appeal observed in CUPE v Nickerson, 2017 NSCA 70 the union is “both the exclusive spokesperson for the employee and the ultimate decision-maker” [2] in the grievance process.
That structure is efficient, but it creates risk: employees are dependent on the union’s judgment. The DFR addresses that risk by requiring unions to exercise their authority fairly.
In practical terms, the DFR informs how unions make decisions including how they investigate complaints, communicate with members, and proceed in a grievance process. When done well, fair representation strengthens trust and workplace solidarity. When done poorly, breaches can lead to internal conflict, complaints before the Labour Board, and significant time spent defending decisions. DFR complaints can even result in a union being ordered to pay damages.[3]
The Legal Standard: What “Fair Representation” Requires
Put simply, when a union is making decisions or acting on behalf of employees, it must do so fairly and in a reasoned way.
As mentioned above, section 54A(3) of the Trade Union Act identifies three types of conduct that will breach the duty:
- Arbitrary conduct includes handling a matter in a superficial or perfunctory way, failure to properly investigate, or ignoring relevant information or the employee’s perspective.
- Discriminatory conduct includes distinctions based on prohibited human rights grounds such as race, sex, or disability, as well as unjustified differential treatment or favouritism between members.
- Bad faith refers to conduct driven by improper motives, such as hostility, revenge, dishonesty, or conflicts of interest that influence how a grievance or employee matter is handled.
Importantly, the duty applies to all employees in the bargaining unit, not just union members. The duty applies throughout the entire grievance process, from the initial complaint through to arbitration.
Where a case involves “critical job interests”—such as termination, discipline, or human rights issues—the union’s conduct will be examined more closely. As the stakes are higher, so is the standard of representation.
Process over Outcome: Limits to the Duty of Fair Representation
The DFR guarantees a fair process, not a particular result. While unions are required to represent members in a manner that is not arbitrary, discriminatory, or in bad faith, they are not required to satisfy every member or pursue every grievance to arbitration.
This principle was confirmed by the Nova Scotia Supreme Court in CUPE v Nickerson, 2017 NSCA 70. In that case, a union member’s contract was not renewed. She filed two grievances alleging that the employer had harassed her with a disciplinary letter and later terminated her without cause. The union grieved, mediated, and reached a settlement but the member refused to accept. The member insisted that only an arbitral award would vindicate her, and that her mental disability could only be accommodated by such vindication. Ultimately, the member filed a DFR complaint. The Court dismissed the complaint, finding the union’s decisions reasonable and emphasizing that unions are entitled to assess grievances strategically, including considering litigation risk and settlement options, so long as the decision-making process is rational and fair.
Recent Application: Daniels v ATU 508
More recently, the Nova Scotia Labour Board applied these principles to a DFR complaint made in the context of a controversial termination grievance.
In Daniels v ATU Local 508, LB-2914, March 31, 2026, a bus operator was terminated after allegedly using a racial slur in the workplace. The union filed a grievance, obtained a legal opinion supporting arbitration, and its executive recommended proceeding.
However, under the union’s constitution, the final decision rested with the membership. The issue became contentious. Some members opposed advancing the grievance, arguing it would send the wrong message about racism in the workplace. Faced with that tension, the union took steps to structure the process carefully. It convened a membership meeting, ensured the grievor could speak, had legal counsel present the case and answer questions, and allowed members to engage before voting.
The membership ultimately voted not to proceed. The grievor then filed a DFR complaint, alleging bias and a “mob mentality.”
The Review Officer dismissed the complaint.
The decision turned on process. The union had investigated the case, obtained and shared legal advice, followed its constitution, and created a fair and informed decision-making process. The fact that the outcome was contentious did not change that conclusion. The Officer emphasized that the Board will not overturn union decisions absent evidence of arbitrariness, discrimination, or bad faith.
Key Takeaways
The duty of fair representation sits at the centre of the union’s role. It balances the union’s exclusive authority over bargaining unit members with a clear obligation to act fairly.
Taken together, the case law indicates that the DFR is not about universal agreement. It is about reasoned, fair, and transparent decision-making.
For unions, the message is practical: process matters. Decisions should be informed, documented, and grounded in a genuine assessment of the issue. Clear communication and a structured approach are not just good practice—they are the best defence to a complaint.
For employees, the takeaway is equally important. The DFR guarantees fairness in how decisions are made, not control over the outcome. A disagreement with the union’s decision, on its own, will not establish a breach.
For employers, these principles provide context. Union decision-making may be contested internally, but the legal standard remains focused on fairness of process, not unanimity of result.
