COURT FILE NO.: CV-21-00668886-0000

DATE: 20220722

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Tim Oribine, Stannie Muir, and the National Organized Workers Union, Plaintiffs

-and-

Lucy Novello, Tina Miller, and Jiva Andola, Defendants

BEFORE: Robert Centa J.

COUNSEL: Ian J. Perry, for the plaintiffs

Mike Biliski, for the defendants

HEARD: July 19, 2022

ENDORSEMENT

[1] In June 2019, the National Organized Workers Union commenced an organizing drive at Humber River Hospital. NOWU persuaded many members of the part-time clerical staff bargaining unit to sign its membership cards. NOWU then brought an application to the Ontario Labour Relations Board to displace Teamsters Local Union No. 419 as the certified bargaining agent for the bargaining unit.

[2] On October 11, 2019, the OLRB held a representation vote to determine whether NOWU would displace Local 419. NOWU lost the vote and the OLRB declared that Local 419 would continue to be the certified bargaining agent.

[3] On September 17, 2021, NOWU, its president Tim Oribine, and its business agent Stannie Muir commenced this defamation action over an allegedly defamatory email and six flyers that were published and circulated “in the context of the organizing drive by the plaintiffs”.

[4] The defendants to the action are three members of the bargaining unit the plaintiffs sought to represent: Lucy Novello, the Chief Steward of Local 419, Tina Miller, and Jiva Andola, both stewards of Local 419.

[5] The plaintiffs allege that the defendants made their defamatory allegations “for the purpose of injuring and disgracing the plaintiffs in retaliation for commencing a lawful campaign to displace Local 419 as bargaining agent.” As a result of the defamatory materials, the plaintiffs allege that they have suffered significant damage to their reputation in the eyes of the bargaining unit members and other unionized staff at the hospital.

[6] The defendants move to have this action dismissed on the ground that the court has no jurisdiction over the subject matter of this action. For the reasons that follow, I agree. The legislature has assigned exclusive jurisdiction over this dispute to the OLRB. The court has no jurisdiction over the subject matter of the action, and it is dismissed.

The approach to resolving questions of jurisdiction

[7] Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, allows parties to bring a motion to determine an issue before trial. The defendants rely on rule 21.01(3)(a), which provides:

21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(a) the court has no jurisdiction over the subject matter of the action; …

and the judge may make an order or grant judgment accordingly.

[8] The defendants face a high bar on a motion under rule 21.01(3)(a). They must demonstrate that it is clear, or plain and obvious that the OLRB has exclusive jurisdiction over the subject matter of the action: Pileggi v. Canadian Union of Postal Workers (2005), 13 C.P.C. (6th) 373 (Ont. S.C.), at para. 40.

[9] Counsel for the plaintiffs submitted that I should dismiss the motion unless it was “plain, obvious and beyond doubt that the plaintiff could not succeed”. This language is drawn from the reasons of Bellamy J. in Re Progressive Casualty Insurance Company Ltd. (1999), 1999 15092 (ON SC), 46 O.R. (3d) 10 (S.C.), at para. 17, citing Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 1991 7366 (ON SC), 5 O.R. (3d) 417 (Gen. Div.), at p. 419. In Progressive, Bellamy J. was discussing general principles that apply in the context of motions under rule 21.01(a) or (b). I agree with the analysis of Bellamy J., but I do not think the notion of success applies on a motion under rule 21.01(3)(a), which is concerned with the court’s jurisdiction to hear the action, not plaintiff’s the likelihood of success.

[10] The parties disagree fundamentally on the appropriate analytical approach on this motion.

[11] The defendants submit that the court should apply the two-part test that is most frequently associated with the Supreme Court of Canada’s decision in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 SCR 929. First, determine the essential character of the dispute, taking into account all of the surrounding facts and circumstances. Second, determine whether that dispute, defined by its factual nature, falls either expressly or implicitly within the ambit of the issues designated by the Ontario Labour Relations Act, 1995. S.O. 1995, c.1, Schedule A (the “Act”) to be decided by the OLRB.

[12] The plaintiffs, in contrast, submit that that the OLRB has no jurisdiction over this dispute because it does not arise out of a collective agreement, which is a prerequisite for the OLRB’s jurisdiction. In their factum, the plaintiffs submitted that the Weber approach is only available in circumstances where the parties to the dispute are bound to each other by a collective agreement. In oral submissions, counsel modified the submission and suggested that the absence of a collective agreement between the litigants was a factor to be considered in assessing if the court had jurisdiction over the claim.

[13] The plaintiffs also rely on two cases where courts tried union-union defamation cases: Hunter v. Godin, 2012 ONSC 4774, and Amalgamated Transit Union v. Independent Canadian Transit Union 1997 14764 (AB KB), 49 Alta. L.R. (3d) 1 (Q.B.). The plaintiffs submit that these cases demonstrate that the courts have jurisdiction over cases such as this one.

[14] I reject the plaintiff’s submissions. The Weber analysis is not restricted to circumstances where the dispute arises out of matters that are subject to a collective agreement: Pileggi at para 47.

[15] For example, in Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, the Supreme Court of Canada adopted a similar analysis when assessing if an employee’s complaint against his union for unfair representation could be brought in court. There was no collective agreement in place between the plaintiff and the defendant, which was his union. Nevertheless, the Supreme Court concluded that the federal labour legislation gave exclusive jurisdiction over that dispute to the federal labour board.

[16] The Supreme Court has applied the two-part Weber analysis to determine jurisdiction whenever a dispute arises in the context labour legislation that provides a comprehensive scheme for the resolution of labour disputes: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at paras. 34-35; Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, at paras. 13-14. The Supreme Court’s analysis does not depend on the presence of a collective agreement between the parties.

[17] The Court of Appeal for Ontario has repeatedly held that the Weber analysis is not restricted to disputes arising under a collective agreement. In Dagher v. McDonnell-Ronald Limousine Services Ltd. (1999), 1999 9305 (ON CA), 46 O.R. (3d) 97 (C.A.), at paras. 22-24, the court noted that although there was no collective agreement in place, the OLRB had jurisdiction over alleged unfair labour practices where those allegations were made in the context of negotiations for a new collective agreement.

[18] In Myrtezaj v. Cintas Canada Ltd. (2008), 2008 ONCA 277, 90 O.R. (3d) 384 (C.A.), at paras. 37 to 39, an employer argued that because there was no collective agreement between the parties to the civil action, that rendered inapplicable both the ratio and the analytical approach taken in Weber. Justice Doherty rejected that submission and held that the analysis used in Weber should be used to determine if the relevant legislation had given the OLRB exclusive jurisdiction over a dispute, even where there was no collective agreement in place.

[19] I find that the two cases cited by the plaintiff, Hunter and Amalgamated Transit Union, are of limited assistance to me in determining my jurisdiction. First, neither case directly addresses the jurisdiction of the court. Counsel could not identify any pre-trial decisions in either case that addressed the jurisdiction of either court. Both courts proceeded as if they had jurisdiction, but there is nothing in the reasons for decision to indicate that the court turned its mind to that issue. Second, neither case applies the modified-Weber analysis to assess the court’s jurisdiction.

[20] I conclude that I am required to apply a modified-Weber approach on this motion to determine if the legislature has given exclusive jurisdiction over this dispute to the OLRB: Dagher; Myrtezaj; see also Tomchuk v. University of Winnipeg Faculty Association, 2008 MBQB 168, at para 32.

The Essential Character of the Dispute

[21] To determine the essential character of the dispute in this case, I must examine the factual context in which it arose, not its legal characterization: Regina Police Association, at para 29; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para 31.

Legislative backdrop

[22] The dispute arose in the context of NOWU’s to displace Local 419 as the certified bargaining agent for the part-time clerical workers at the hospital. This is sometimes referred to in the jurisprudence as a raid. Under s. 62(1) of the Act, only one union at a time can be certified by the OLRB as the bargaining agent of the employees of an employer in a bargaining unit: s. 62(1). The Act also prohibits attempts to displace an incumbent trade union except during open periods, which are prescribed by the Act. The relevant provision for this collective agreement is s. 7(4). It provides that a raiding union may apply to the Board for certification as bargaining agent only after the commencement of the last three months of the term of the collective agreement (the “open period”).

[23] A union that seeks to displace an incumbent union will attempt to collect membership cards or other evidence of support from the members of the bargaining unit. Once the open period commences, the raiding union will present its membership support to the OLRB and bring an application for certification under s. 8 of the Act.

Factual context

[24] The facts set out below are taken from the amended statement of claim, except as indicated.

[25] Local 419 represents part-time clerical workers at the hospital. In 2017, Local 419 and the hospital reached a renewal collective agreement that would expire on October 10, 2019. The Local 419 bargaining committee included the defendants Ms. Novello and Ms. Andola. The bargaining committee also included the plaintiff, Mr. Muir, who was at the time both the business agent for Local 419 and the chief negotiator for the bargaining committee.

[26] In June 2019, NOWU commenced an organizing drive to persuade the bargaining unit members to sign NOWU membership cards to demonstrate support for NOWU in anticipation of an application to the OLRB seeking to displace Local 419 as the certified bargaining agent.

[27] The open period commenced on July 10, 2019.

[28] On July 12, 2019, Mr. Muir resigned his position as bargaining agent for Local 419 and accepted an offer of employment as business agent for NOWU. Mr. Muir would now be working with the plaintiffs NOWU and Mr. Oribine to displace Local 419.

[29] On July 29, 2019, Jennifer Boyake a steward for Local 419 circulated an email. The plaintiffs allege that the email, read in its entirety and in the context of the surrounding circumstances, meant that:

a. Mr. Muir breached his ethical duty to Local 419 and the bargaining unit by accepting a bribe in exchange for sabotaging the negotiations that led to the 2017 collective agreement between Local 419 and the hospital;

b. Mr. Orbine and NOWU paid the bribe to Mr. Muir; and

c. Mr. Muir engaged in conduct that violated the duty of fair representation that he owed to the bargaining unit under s. 74 of the Act.[^1]

[30] In September 2019, the defendants circulated six different pamphlets and flyers to members of the bargaining unit. Three of the pamphlets were titled “Say NO to NOwu.” All of the pamphlets were critical of NOWU, Mr. Orbine, and Mr. Muir. The plaintiffs allege that the defendants made these allegations in retaliation for NOWU starting its lawful campaign to displace Local 419. The plaintiffs allege that the flyers, read in their entirety and in the context of the surrounding circumstances, meant that:

a. NOWU is not a trade union, is antidemocratic, has financial problems, and is corrupt;

b. NOWU elections are fraudulent, and its leadership is determined in backroom deals and not democratically;

c. Mr. Oribine and Mr. Muir are each corrupt;

d. Mr. Oribine manipulates election and voting results, and squanders members' union dues;

e. Mr. Oribine only cares about his personal monetary gain and not about his members;

f. Mr. Oribine is prepared to sabotage the bargaining unit for personal gain; and

g. Mr. Muir accepted a bribe and lied about his reasons for accepting employment with NOWU.

[31] The plaintiffs allege that the statements damaged their integrity, character, and the reputation of NOWU in the eyes of its members and other employees at the hospital. They allege that they had no choice but to initiate this action to restore their reputations.

[32] In para. 23 of the original statement of claim, the plaintiffs pleaded that NOWU lost the representation vote conducted by the OLRB on October 11, 2019, and that “but for the defamatory communications, NOWU would have won the vote and succeeded in the displacement application.” The original statement of claim sought damages for monthly membership dues NOWU would have received.

[33] The plaintiffs submit that I should disregard this paragraph as it was deleted in the amended statement of claim. They submit that the claim has been refined over time, that I should take the amended claim at face value and put their case at its highest.

[34] The defendants submit that I am entitled to look at the entire record that is before me, which includes the amended statement of claim: Caressant Care Nursing and Retirement Homes Ltd. v. Priest, (1999), 1999 15053 (ON SC), 24 Admin L.R. (3d) 192 at para 14 (Ont. S.C.). The defendants submit that deleted paragraph is strong evidence of the essential nature of the dispute: whether or not the defendants’ statements interfered with the outcome of the election.

[35] I am somewhat concerned by the submissions of the plaintiffs, which appear to illustrate how legitimate litigation strategies can potentially obscure what labour disputes are actually about. This may be an example of how permitting court-based processes and prioritizing legal labels over factual context could potentially damage the integrity of the legislative scheme for labour relations. For the purposes of this motion, however, I will disregard the pleading “but for the defamatory communications, NOWU would have won the vote and succeeded in the displacement application” and the resulting claim for damages. As there is no dispute between the parties about the fact that NOWU lost the representation vote, I will continue to rely on that fact.

[36] I find that, in its essential character, this dispute is about one group of union activists allegedly disparaging and demeaning their adversaries during an election campaign to determine which union would represent the members of the bargaining unit. I reach this conclusion for the following reasons:

a. All of the plaintiffs and the defendants were involved in advancing or resisting the displacement application and there is no pleading that they had any dealings with each other in any non-labour relations setting;

b. There are no allegations of wrongful conduct that fell outside the organizing campaign or related to matters other than NOWU, its leadership, its operations, and its service to members;

c. The defendants were acting in their roles as stewards of Local 419 when they made the statements in issue, not in their personal capacities;

d. The recipients of the challenged statements were overwhelmingly members of the bargaining unit who would be voting in the representation vote;

e. Some of the challenged statements concerned whether or not Mr. Muir had breached his ethical and legal duties under the Act to Local 419 and its members, and whether or not he sabotaged the last round of collective bargaining by Local 419;

f. Some of the challenged statements alleged that NOWU, Mr. Oribine, and Mr. Muir were corrupt, anti-democratic, aligned with the interests of management, and would not advance the legitimate economic interests of the bargaining unit, had provided poor service to other bargaining units, and wasted union members’ dues on litigation;

g. Some of the challenged statements suggested that NOWU was not a real union because it was not affiliated with the Canadian Labour Congress;

h. All of the challenged statements were to implore members of the bargaining unit not to support NOWU in the representation vote;

i. The plaintiffs assert the defendants made these statements for the purpose of punishing the plaintiffs for exercising their right under the Act to commence a lawful displacement application; and

j. The harm to the individual reputations of Mr. Muir and Mr. Oribine is described as relating to their roles at NOWU. They complaint that the statements lowered their reputation in the eyes of their members and other employees at the hospital.

The dispute falls within the exclusive jurisdiction of the OLRB

[37] The second step is to determine whether the dispute, defined by its factual nature, falls expressly or implicitly within the range of issues the Act has designated to be determined by the OLRB. I conclude that the Act implicitly places this dispute within the exclusive jurisdiction of the OLRB.

[38] The legislature has enacted a complex labour relations scheme in Ontario. The legislature has concentrated decision-making power among labour tribunals and arbitrators to leverage their expertise, obtain efficiencies, and develop a coherent labour law policy: TWU v. British Columbia Telephone Co., 1988 14 (SCC), [1988] 2 S.C.R. 564, at p. 584; Gendron, at p. 1325. Permitting piecemeal recourse to the ordinary courts may jeopardize the exclusive and comprehensive dispute resolution process contained in labour relations legislation: Gendron, at p. 1326. It would offend the legislative scheme to permit parties to have recourse to the ordinary courts if the legislature has assigned these tasks to the OLRB: St. Anne Nackawick, at pp. 718-719; Regina Police Association, at para. 372.

[39] Section 5 of the Act provides that “every person is free to join a trade union of the person’s own choice and to participate in its lawful activities.” These freedoms cannot be violated by conduct prohibited by s. 76 or the other provisions of the Act.

[40] Subsection 7(4) of the Act prohibits a raiding trade union from applying to displace an incumbent trade union except after the commencement of the last three months of a collective agreement with a term shorter than three years.

[41] Section 8 of the Act carefully regulates and expedites the process for displacement applications for certification. It provides for a lower standard of proof of membership, requires that the secret ballot representation vote be held within five days after the application is filed, and permits the OLRB to hold a hearing after the vote if it is necessary to dispose of the application. In Labourers’ International Union of North America, Local 183 v The Daniels Group Inc., 2019 97838 (ON LRB), Vice-Chair Lee Shouldice described the process as follows:

[45] As a matter of practice, applications for certification filed with the Board in which the applicant union is attempting to displace another union are invariably brought under section 8 of the Act. That is because applications filed under section 8 of the Act are determined by way of a secret ballot representation vote, and the Board has historically determined displacement applications by way of a representation vote. To do so allows bargaining unit employees the ability to freely choose which of two competing unions they want to be their representative. ….

[46.] Section 8 of the Act is custom-built for displacement applications, because it is anchored by an expedited voting procedure that is triggered by an appearance of support for the applicant in the bargaining unit proposed by the applicant. This is important where there is an ongoing struggle between two unions for the hearts and minds of an employer’s employees. The Board is tasked with determining the will of those employees as at the application filing date. An expedited vote captures the true wishes of the affected employees shortly after the application filing date. Any substantive issues raised by the incumbent union or the employer are parked to the side and dealt with later.

[47] Accordingly, upon receipt of an application for certification filed with the Board under section 8 of the Act, the Board assesses the appearance of support for the applicant within the bargaining unit that the union proposes in its application. In accordance with subsection 8(2) of the Act, if the Board determines that 40 percent or more of the individuals in the proposed bargaining unit appear to be members of the union at the time that the application is filed, the Board will typically direct the taking of a representation vote in a voting constituency that mirrors the bargaining unit sought by the applicant. That representation vote is taken within five business days of the application date. The five day time limit within which the representation vote occurs is established by subsection 8(5) of the Act. Although the Board has the discretion to extend that time limit, it rarely does.

[48] Typically, a representation vote is directed by the Board, the vote is taken, any challenged ballots are segregated from the other ballots, and all legal issues are subsequently litigated. If necessary, the ballot box is sealed after the taking of the representation vote. The beauty of the expedited voting procedure established by section 8 of the Act is that the true wishes of employees as at the application filing date are more likely than not to be reflected by the result of the balloting.

[42] I note that civil actions are inconsistent with the speedy timelines set out under the Act. In this case, for example, the challenged statements were published between July and September 2019. The plaintiffs issued the statement of claim in this proceeding on September 17, 2021, and I heard this motion almost one year after that.

[43] The Act prohibits unfair labour practices. The defendants point in particular to section 76 of the Act, which prohibits the use of intimidation or coercion to compel any person to become or refrain from becoming a member of a trade union:

No person, trade union or employers’ organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers’ organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

[44] The OLRB will use s. 76 to intervene in appropriate cases where a person or union engages in intimidation, coercion, or misrepresentation that offends the Act during a raid. This includes making false statements during an election campaign: Events at One King West Ltd. [2019] O.L.R.D. No 2348; Stauffer-Dobbie Manufacturing Co. Ltd., 59 CLLC 18,147; Crock and Block Restaurant, [1984] OLRB Rep. Jan. 19; Kraft Canada Inc., [1997] OLRB Rep. March/April 239; Concorde Metal Stampings, [1987] OLRB Rep. Jan 34; Northfield Metal Products Ltd., [1989] OLRB Rep. Jan 57.

[45] Over many decades, the OLRB has developed a sophisticated approach to alleged misrepresentations during displacement campaigns. The OLRB is able to consider if by union members were malicious or reckless with respect to the truth of the statements they made: Caressant, at para 36. The OLRB is mindful of the particular factual context created by two unions competing strenuously for the hearts and minds of the members of the bargaining unit. A raid is not a tea party. The OLRB is familiar with displacement applications where “both unions are engaged in typical electioneering and statements warning of the economic consequences of a decision by employees if they choose the other competing union are commonly propagandistic, and emanate from both unions”: Events at One King West Ltd., at para 22. It is for the OLRB to determine, exercising its exclusive jurisdiction, whether or not a statement crosses the line from election puffery to a breach of the Act.

[46] In oral submissions, counsel for the plaintiffs submitted that an action for defamation could not be compared to proceeding under s. 76 of the Act. This is, to an extent, a variation on the proposition that “no collective agreement can deprive a Court of its jurisdiction in tort”: Franck v. Kenebuc (Galt) Ltd. (1985), 7 C.C.E.L. 85 at p. 90 (Ont. H.C.). The modern approach, however, does not focus on the legal labels applied to the dispute. Instead, it directs the court to examine carefully the facts surrounding the dispute between the parties to characterize its essential nature: Weber at para. 43.

[47] The Act demonstrates the clear intention of the legislature to give exclusive jurisdiction to the OLRB with respect to union certification, representation votes, and unfair labour practices: Crawford v. SDS Kerr Beavers Dental, a Division of Sybron Canada Ltd., [2005] O.J. No. 4614 (S.C.). These threads come together in s. 11.1 of the Act, which provides remedies where a trade union or a person acting on behalf of a trade union violates the Act and, as a result, the true wishes of the employees in the bargaining unit were not likely reflected in a representation vote. It permits the OLRB to order another representation vote and to do anything necessary to ensure that the subsequent vote reflects the true wishes of the employees in the bargaining unit.

[48] In addition, section 96 of the Act authorizes the OLRB to inquire into a complaint of a contravention of the Act and grants the OLRB sweeping powers to remedy the harms caused by the misconduct. The Board is empowered to make compensatory monetary orders. In Caressant, Beaulieu J. dismissed a defamation claim brought by an employer against a union member in part because the OLRB has the power to apply common law principles to award compensatory damages. Justice Beaulieu found that the OLRB did have remedial jurisdiction and the court should not assert jurisdiction simply because of the nature of the damages sought.

[49] In Royal Oak Mines v. Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1 S.C.R. 369, at para. 58, Cory J. described the broad remedial powers of the federal labour board in words that are equally applicable to the OLRB:

In my view remedies are a matter which fall directly within the specialized competence of labour boards. It is this aspect perhaps more than any other function which requires the board to call upon its expert knowledge and wide experience to fashion an appropriate remedy. No other body will have the requisite skill and experience in labour relations to construct a fair and workable solution which will enable the parties to arrive at a final resolution of their dispute. Imposing remedies comprises a significant portion of the Board's duties. Section 99(2) of the Canada Labour Code recognizes the importance of this role and accordingly, gives the Board wide latitude and discretion to fashion “equitable” remedies which it feels will best address the problem and resolve the dispute. By providing that the Board may fashion equitable remedies Parliament has given a clear indication that the Board has been entrusted with wide remedial powers.

[50] Finally, through s. 114(1) of the Act, the legislature gave the exclusive jurisdiction to exercise the powers granted to it under Act, which include the powers under ss. 8, 11.1, 76, and 96. The OLRB has the exclusive jurisdiction to determine all questions of fact and law before it and its decision is declared to be final and conclusive for all purposes. As Doherty J.A. concluded, “It is hard to think of language that could speak more strongly in support of the finality of the [OLRB’s] decisions and the exclusivity of its jurisdiction”: Myrtezaj, at para. 33.

[51] I find that the OLRB has exclusive jurisdiction to resolve this dispute.

Conclusion

[52] Although the plaintiffs frame their claims in tort, in its essential character, this dispute is about potentially misleading and damaging statements made by representatives of an incumbent union about a raiding union and its representatives during a hotly contested displacement application. This dispute arose in a context that the legislature has assigned exclusively to the OLRB. The Act carefully regulates displacement votes, and the unfair labour practices that may interfere with the free expression of the will of the members of the bargaining unit. The alleged misconduct of the defendants is to be assessed exclusively by the OLRB, using its generations of expertise, in the promotion of sound labour relations.

[53] I find that the essential nature of this dispute falls within the exclusive jurisdiction of the OLRB. I dismiss the action because the court has no jurisdiction over the subject matter of the action.

[54] The parties have agreed that $7500 should be payable in costs to the successful parties on this motion. I order the plaintiffs to pay $7500 in legal costs, inclusive of disbursements and HST, to the defendants within 30 days.

Robert Centa J.

Date: July 22, 2022

[^1] Section 74 provides that: “A trade union…so long as it continues to be entitled to represent employees in 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, whether or not members of the trade union….”