Wednesday, June 13, 2012

Why won't many lawyers "take on the union"?

I've had multiple prospective clients express concerns that lawyers are 'afraid' of the unions, that they aren't willing to challenge the union.  They imagine that the power of the labour movement discourages some lawyers from getting involved.

In reality, that isn't what's going on at all.  It isn't the case that lawyers are unwilling to assist against unions or unionized employers; rather, in the majority of such cases there isn't much a lawyer can do.

I've noted before that civil actions against employers are only available to non-union personnel, and the vast majority of claims to be made against a unionized employer has to be made through the union.  (Put simply:  You can't hire a lawyer to sue your employer when you're unionized.)

If you're not happy with the way that your union is representing your interests, there could be recourse, but generally speaking there isn't unless you can show that your union is acting in a manner which is arbitrary, discriminatory, or in bad faith.  (This is what we call a "DFR" application.)  It's not an easy threshold in many cases.

So when a unionized employee finds that his pleas for assistance from the union are falling on deaf ears, he might start calling around for lawyers.  And usually "are you in a union" is one of the first questions he'll get asked.  And often, regardless of how the lawyer explains it, all the employee will take away is "I can't get help because I'm unionized."

If he's lucky, he might have a case capable of supporting, say, a human rights-based claim or a DFR, and so a lawyer might help him.

If he's unlucky, a lawyer might take his money to pursue a human rights-based claim or a DFR even though it may not have any realistic chance of success.

If he's really unlucky, he might end up with a lawyer who doesn't know that employees can't sue their unions, and end up incurring hefty legal fees to go to Court, just to have the case dismissed because the Court can't hear it.  It does happen from time to time.

(To be fair, however, not all cases like these which go to Court do so because of ignorance of counsel; occasionally you see a self-represented litigant, and once in a while you see experienced lawyers arguing a fine technical distinction, trying to get a cast a dispute as not being one arising from the employment relationship.  However, the Courts have made it virtually impossible to sidestep the labour relations process that way; such cases are not generally successful.)

But what people really don't understand is why a union doesn't have to go to bat for a wronged employee.  After all, the employee pays his union dues, ratifies the collective agreement because he thinks it is in his best interests, then the employer breaches the collective agreement in a way which harms him in a significant way. Then the union turns around and says "We won't help you", and other lawyers say "We can't help you."

It seems pretty bad, doesn't it?

In truth, while I can be pretty critical of unions on occasion, and while I think the system could use many improvements, there is nonetheless a certain logic to the way the system is set up.  The union is not obliged to pursue every tenuous or trivial complaint.  And the union's good faith judgment on what it should let slide will not be second-guessed lightly.

As a lawyer, my job is to advise and represent my clients in accordance with their instructions.  Under certain circumstances I can refuse instructions and fire the client if the instructions are insisted upon, but in general my job is to do what the client wants me to do.  For example, if a client tells me to offer a settlement based on x, and persists despite my advice that x is clearly unreasonable (or, as has occasionally happened, that he can clearly do much better than x), I will generally comply with the instruction.  If a client wants to retain me to pursue a matter despite having been advised that the chances of success are limited and the cost of proceeding will be high, then in general I will accept the retainer, while making sure in no uncertain terms that the client understands my reservations and getting a substantial monetary retainer.  (The purpose of the monetary retainer is as much to ensure that the client is serious about proceeding as it is about protecting my own account.  In the majority of such cases, the response to my request for a retainer is "I'll get back to you on that" and I never hear from them again.)  Bottom line:  The client tells me what to do, and if the client and I can't work together, the client can get a different representative.

The union's role as a representative is not equivalent.  The union has discretion to act in a manner which best promotes the interests of the bargaining unit as a whole.  To some extent, that includes a gatekeeper role, filtering out frivolous issues to preserve its finite resources for fights that make more sense.  Its obligations to individual employees extend only to representing their interests in a manner which is not arbitrary, discriminatory, or in bad faith.

In other words, where the union has not advanced an employee's interests, the question is not one of 'right' or 'wrong', but whether or not the failure was arbitrary, discriminatory, or in bad faith.  The fact that the employee may have legitimately been wronged is of virtually no import, and in most scenarios there is absolutely no other way of seeking to right the wrong.

And thus, not much a lawyer can do, in many cases.

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

8 comments:

  1. Looks like legal advice to me - you should have your ducks in a row. This is not the entire story.

    ReplyDelete
  2. What a strange and ominous anonymous comment on an entry in which I'm not even discussing a specific fact pattern.

    I'm speaking in generalities. Are there exceptions? Absolutely. Are there complicated policy issues at play? Sure. Are the issues ignored by unions often frivolous or unimportant? Often, yes, but not always.

    But are there cases in which an employee who has been legitimately wronged has absolutely no mechanism available for seeking a remedy? Almost certainly. I say "almost" only because, with no adjudicative mechanism available in such cases, we will never actually know which employees in such situations have actually been wronged.

    ReplyDelete
  3. I am representing myself in a DFR currently, so your post is timely. It has not been my experience that lawyers are afraid of unions. I think lawyers are generally wise enough to see that unions can be cunning, and wise enough to be cautious of prospective clients and their motivations(rightly so - people who take on unions are usually crazy).

    Although I have had offers of representation (with retainer, of course)I am hesitant to incur hefty legal bills when there is no of being re-compensated. As I understand it, should I win, the Board says "yes you are right, the Union should have represented you fairly". No compensation. No real action. They may force the Union (who I have just done battle with) to now represent my side in my original grievance against my employer.

    Seems like a strange dance. I would be interested to hear your view.

    ReplyDelete
  4. Hi Karen, thanks for the comment. These days, yes, the "usual remedy" is to order the Board to file a grievance. It is conceivable that the Board could, in the right fact pattern, order monetary compensation, but these are successful so seldom that I don't know of any case in recent history in which that happens.

    That wasn't always the case. In the early history of DFR applications, a monetary remedy against the union was regarded as being the primary remedy to be awarded. But the real difficulty in that was that it required the Board to assess the likely results of a hypothetical grievance - i.e. what would the employee have received had the grievance gone forward? It's awkward and speculative, and far from ideal. This led to several other approaches used at different points in time, including making the employer a party, or making contingent monetary compensation awards (i.e. the union is on the hook for the employee's losses incurred because of the delay if the grievance succeeds) combined with an order to retain outside counsel to assist the employee to avoid the resulting conflict of interest.

    I don't know of any authority which would preclude a monetary award today, but suffice it to say that it would be unusual.

    Regardless, even if the Board did get the right fact-pattern to award a monetary remedy, it is unlikely, with the state of the Board's jurisprudence today, that they would find that they had jurisdiction to award any relief in respect of the costs of proceeding before the Board.

    ReplyDelete
  5. I do wonder about faculty associations and universities in disability accommodation plans. The faculty associations are usually ill-equipped to deal with the member's privacy concerns and the university is often unlikely to recognize that a member of the faculty association can have independent legal counsel even in the accommodation plan process, which often falls outside the CBA. The only third-party experts allowed seem to be those "approved" by the university, which are in many cases insurance companies and doctors. Strange idea of halting discrimination against handicapped individuals. It's a new form of paternalism in many ways on the face of it. "Come on down and tell us what you need, even though you have just become handicapped and we really have no idea what the heck it is you are experiencing or going to experience..." However, I have spent most of my life in the U.S.A. so Canada's legal system can be a bit opaque at times. The reality may be quite different to my perception of it.

    ReplyDelete
  6. Maybe they find it risky. Or could be so time consuming.
    Attorney Macon

    ReplyDelete
  7. Who finds what risky, James32?

    ReplyDelete
  8. My union refused to represent me in court. Can I pursue them for misrepresenting me?

    ReplyDelete