The lines are drawn for the next great battle of contemporary labour law.
For all of the issues that have arisen in recent labour disputes in Ontario and in the Federal sphere, including the Province designating the TTC as an essential service and the Feds legislatively interfering labour disputes involving Air Canada and Canada Post, this case has arisen in Saskatchewan, and has provided - at the trial level - an answer to a question whose spectre was raised 11 years ago by the Supreme Court in the Dunmore decision: Does s.2(d) of the Charter of Rights and Freedoms guarantee a right to strike?
The History
In the early Charter jurisprudence, the Supreme Court pretty thoroughly rejected the notion that s.2(d) (freedom of association) protected union-related rights. However, in Dunmore the Supreme Court overturned those earlier cases, accepting that the freedom of association included the freedom to join unions.
Dunmore was important for a few reasons. It also has become a precedent for the Charter requiring what is characterized as 'positive government action'. Traditionally, Charter rights only restricted what a government could do. Freedom of expression prevents someone from being silenced, but does not require anyone to provide a soapbox. It means that the government can't force my blog to be shut down (without good reasons), but doesn't require the government to provide hosting for my blog, or to force Blogger to continue to host it.
So how does that apply to a right to join a trade union? Under a traditional Charter analysis, it would mean that the government can't make it illegal for a group to join a union. Early in the labour movement, but in days long past, this was the case. But with most groups these days have statutory rights to join unions, the question took on different dimensions: Dunmore was about the exclusion of agricultural workers from the labour relations regime, about saying to society at large, "Everyone can join unions...except these guys." The Court in Dunmore concluded that this had a chilling effect, that the exclusion of one group in itself sent a message to employers that agricultural unionization efforts would be illegitimate, and by doing so the government was interfering with such unionization efforts. In response, the legislature enacted a law, the AEPA, giving agricultural workers the right to join unions and make representations to employers. We'll come back to that in a minute.
The next question was what was included with this right to join a union. Can the employer proceed to ignore the union anyways, in the absence of a statutory regime telling them otherwise? Does s.2(d) include not just a right to join a union, but also a right to collective bargaining? And if so, does that impose a positive obligation on government to protect such a right?
The second case was B.C. Health Services in 2007, and the answer to the question was Yes. The British Columbia government had legislatively overridden several public sector collective agreements, and the Supreme Court found that this interfered with the associational rights of the individuals involved - a meaningful right to associate means protection of the objectives for which people associate, including collective bargaining. The case reinforced Dunmore and referenced the discussion from that case of 'underinclusive legislation'. I've tended to argue that the discussion of positive government action in B.C. Health Services is somewhat misplaced, since we are talking about a case involving the government actually legislatively undermining collective agreements, but I (though I'm probably alone in this) really don't read Health Services as meaningfully expanding the "positive obligations" scope from the extremely limited doctrine set forth in Dunmore.
Then, there was the third case, Fraser, dealing with the AEPA in Ontario. The objection was that the AEPA didn't obligate employers to actually negotiate in good faith when receiving representations from the union. The Supreme Court's response, in a remarkable feat of legislative interpretation (see my commentary here), was "Yes it does", finding that good faith obligations could be read into the statute, and that s.2(d) may guarantee a meaningful right of collective bargaining but does not guarantee any particular mode or structure for that collective bargaining.
I am somewhat disturbed by how far Fraser comes from Dunmore's 'the government can't substantially interfere with the right to organize' to 'the government is obligated to enact statutes imposing good faith obligations on employers'. But that's not for today.
What Now?
Yesterday, the Saskatchewan Court of Queen's Bench released a decision finding that s.2(d) constitutionally guarantees the right to strike. The facts involve a statute enacted which essentially imposes a wide-spread 'essential service' model, stripping public sector employees of the right to strike.
The Court noted the role of the strike in labour relations. In the private sector, a strike imposes economic pressure on both sides - the employees aren't making money, but the employer isn't getting labour. In the public sector, the pressure on the employer is different, usually being political in nature.
It's a lengthy decision, but I will deal with it in very brief terms for now, at the risk of oversimplifying: The Court views the strike as being a keystone of collective action - without the right to strike, to exert collective pressure against the employer, the right to collectively bargain is meaningless. Thus, s.2(d) must extend to the right to strike.
Further, Canada's international obligations and participation in ILO conventions tend toward the recognition of a right to strike.
My Thoughts
I'm not an expert in international law. There are people far smarter than me who have argued either way on this point in the wake of B.C. Health Services, but I dislike the invocation of international law in this context. It is difficult to accept that an international treaty, which governments can enter into or rescind, can inform the interpretation of the Canadian constitution.
In any event, even if my distaste for the Supreme Court's approach in Health Services is unsubstantiated, the Court in this case takes it further. You see, the right to strike is not expressly set out in the applicable ILO convention, but rather has been read in by the ILO over time. Namely, in 1971, the ILO appointed a Committee to inquire into a complaint against Greece, which concluded that the right to strike was implicitly protected by convention 87. The Saskatchewan Court here pointed out that Canada ratified the treaty in 1972, after that decision made it clear that the Committee on Freedom of Association was taking that position, and therefore it informs the contents of our international obligations, which in turn (following B.C. Health Services) inform the content of our Charter rights.
Okay, let's parse this for a second: We have freedom of association. Because, in 1972, we ratified a convention agreeing to protect collective bargaining, that gets lumped in with freedom of association. And because, in 1971, an international organization concluded that the right to strike was implicitly protected by a right to collectively bargain, that means our constitution must therefore guarantee a right to strike. Even if I were to put aside the heavy deference on an international organization's interpretation which was not at all informed by Canadian legal principles, this is starting to get a little disturbing for other reasons, but I'll get to that in a second.
The Court also refers to the presumption of conformity with international law, which is a principle of statutory interpretation suggesting that, in the absence of an irresistably clear intention not to comply with international obligations, a law should be read as being consistent with international obligations.
This is true. I'm quite fond of that principle, actually. I like international cooperation and multi-lateralism, and I'm fond of the fact that a government is unable to subtly legislate around its international obligations - it can do so, and should be able to do so, but has to admit openly that that's what it is doing.
But it's a rebuttable presumption, premised on the notion that "If the government really wanted to ignore its international obligations, it could have said so expressly." Moreover, if that's really what the government wanted to do, they can just go and amend the law to do so. When we're talking about Charter interpretation, that notion no longer exists. The Charter is there. It has been there since 1982, and it's nigh-impossible to amend. If we were talking about international obligations that post-date the Charter, I'd be deeply worried about the Court saying "Well, if they didn't want us to interpret the Charter to include this international obligation, they should have put that in the fine print of the Charter." Such a conclusion would be absurd.
In this case, of course, the international obligations predate the Charter, but if that's the deciding factor then that worries me for different reasons: Unlike that of our southern neighbours, the Canadian constitution is a "living tree". It grows and changes as the society it protects grows and changes. The intended meaning upon drafting isn't completely irrelevant, but nor is it determinative. American constitutional interpretation today is rather muddied by the fact that they feel beholden to the ideals, values, and intentions of those who drafted the document, well over two centuries ago. Two hundred years from now, when our society (and economy and workforce) has grown and evolved in ways that we can't necessarily imagine now, are we going to have to interpret our ongoing constitutional rights and obligations based on what a group of non-Canadians said about a conflict in Greece in 1971?
The answer, almost certainly, is No. That would be anathema to the entire history of Canadian constitutional jurisprudence. We leave it to our Courts to interpret and determine the contents of the Charter, and we trust them to consider these questions in meaningful and thoughtful ways. They cannot defer on questions of constitutional interpretation, and even if you grant that Canada's role in the international community may have some interpretive value, it simply cannot be the case that the Courts' hands can or will be tied in context of constitutional interpretation by the conclusions of an international organization. Canada can decide for itself whether or not meaningful freedom of association requires a right to strike. If our Courts find that it does not, that will not abrogate from the government's international obligations to recognize a right to strike anyways...but that's kind of my whole point: It is an *international* obligation, one that we have taken on and which is subject to our own sovereign statehood. That alone ought not to make it a constitutional obligation.
Furthermore, I'm not certain that I agree with the conclusion that a strike is necessary for meaningful collective bargaining. There are alternative models, including interest arbitration, for resolving irreconcilable disputes in bargaining.
There are problems with such arbitration, of course. Firstly, defining the mandate of the arbitrator can be difficult, directing them in what factors they should consider in coming to a decision. Secondly, widespread arbitration can result in a disconnect from free market pressures and bargaining power, resulting in wages which are either inordinately high or low with regard to market conditions, because arbitrated results tend to focus strongly on "What are other people getting?". (That being said, negotiated results often have that dimension, too.) Arbitration also tends to resist innovation - an arbitrator doesn't want to adjudicate something new between the parties that doesn't exist elsewhere.
Yet I'm not sure that any of these problems are such that they can be said to interfere with meaningful association by definition. While a statute that puts economic concerns of the employer at the forefront of an arbitrator's mandate would likely do so, a balanced formulation of the mandate is not impossible. As for the prospect of a break from market conditions, this could be built into the mandate to some extent. Not a perfect solution, but it's hard to imagine wages skyrocketing out of control, or unionized employees suddenly becoming drastically underpaid. And the issue of stagnation is troubling, but nor is it one-sided. If a party wants something new and different, they can still bargain for it, and bargaining may require compromise, on both sides. A no-strike model would likely have prevented Ford from bullying CUPE into compromising its job security provisions.
In light of Fraser, noting that no specific labour relations model is necessary, I think that the existence of no-strike alternative models which have been effectively used in some contexts will make it difficult for this decision to survive its appeals.
What next?
This will be appealed, likely all the way to the Supreme Court in time. If it holds up, the consequences will be widespread. Many of the current Federal government's actions will be seen as ultra vires (outside of their power), interfering with collective bargaining processes. Back-to-work legislation in general will become presumptively unconstitutional, unless it can be justified under section 1 of the Charter. Essential services legislation will be the same - most likely, the TTC's essential services designation will be done away with.
I don't like the approach taken by the Federal government to labour issues. I do think that, where the government is going to step in, a fair alternative is necessary, and that has not been happening. But, with fair alternatives available, I dislike the notion of an outright prohibition of government interference in labour disputes. Labour disruptions can and often do have major impacts on the public interest, and I'm not laissez-faire enough to say that we should always just leave it to market pressures to decide who's right.
*****
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.
Showing posts with label collective agreements. Show all posts
Showing posts with label collective agreements. Show all posts
Tuesday, February 7, 2012
Tuesday, October 11, 2011
How to Get Rid of a Union in Ontario
I recently involved myself in a debate on Professor David Doorey's blog about 'democracy' in labour relations. I've followed his blog for some time, and I respect (though I often disagree with) his views, which are typically 'pro-union'. My own view on unions is quite nuanced: Unlike many lawyers who represent management, I don't oppose unions on principle. I've seen employers who remind me of the reason why unions exist. But I have had many occasions to question the activities of specific unions in specific contexts.
I believe that there are major problems with the current structure of our labour relations regime in Ontario, mainly because I believe that "labour" itself has become an entity with its own interests, and a powerful one at that. Rather than, as I believe should be the case, an advocacy mechanism for workers. The end result is that there are times when a union puts its own interests above those of individuals it represents, or even above entire bargaining units under its care.
So we frequently see cases in the jurisprudence involving employees trying to sidestep the union to deal with their employer (almost always unsuccessful, except in the Human Rights arena, where it *can* work), or taking on the union directly in a Duty of Fair Representation application (almost always unsuccessful, because there's a high threshold for it), and I have had plenty of employees call me directly because they aren't happy with the way that their unions are representing their interests. (Think about how big a deal that is: You've already paid union dues. You're not getting them back. Included in union dues is representation as against your employer. How dissatisfied would you have to be before you would hire your own lawyer at your own expense, paying hundreds of dollars per hour, to do something you've already paid somebody else to do?) The trouble is that there is seldom much to be done; under the statute, the union has the exclusive mandate to represent them, and they can't opt out of this.
Professor Doorey sees it thus: The bargaining unit, if displeased with the union, can get rid of the union. This is true. But it seldom happens, because bargaining unit members usually don't have the sophistication or resources to successfully decertify a union, and any employer involvement or assistance will usually be fatal to the effort. The rules governing decertification are actually fairly complicated.
So, for those employees who want to decertify a union, here's a general guide as to how. Remember that every case is unique in its own way, and the best way to move forward, if you can afford to, is to hire a qualified lawyer to assist you. The below is not legal advice, and does not cover every scenario. Especially note that the process is different for construction industry matters.
Step 1: Determine if you can bring the Application
The general rule is that you have to be a member of the bargaining unit in order to apply for termination of bargaining rights, and that any member of the bargaining unit can do so. However, the application can't be tainted by management influence, and there have been cases in which unions have argued that the person making the application was too closely connected to the managerial team.
Step 2: Find the Window
The Labour Relations Act sets out a variety of different circumstances in which you cannot make an application to terminate your union's bargaining rights.
The Application can be made under the following circumstances:
Let's say that my union and employer commenced a collective agreement with a 24-month term, starting May 1st 2011 and ending April 30th 2013. If I want to decertify the union, the window opens on February 1st, 2013 (three months before the end), and closes when a new collective agreement becomes effective. So if the employer and union are able to negotiate a new agreement to start for May 1st, 2013, I need to have my application in before then.
Or suppose my union and employer negotiate a long-term collective agreement, going from September 1st 2011 to August 31st 2016 (five years). I would then have three month windows at the end of the third, fourth, and fifth years of operation. (Window from June 1st to August 31st of 2014 and 2015, and then a window opening June 1st 2016 that ends when a new collective agreement becomes effective.)
One of many important things to remember is that, if the bargaining unit ratifies a new collective agreement, you're probably s.o.l. for a long time if you want to get the union out. When most employees treat a new collective agreement as being inevitable, and a question of how long it will take and what actions (i.e. strikes) may be required to get a better deal, that's a problem; people are likely to vote in favour of a tentative agreement so long as it is tolerable, and this is especially true of those who would rather be without a union in any event.
But there are also bars to initiating an application, even within those windows. There's a conciliation process available to the parties: The union or the employer can ask the Minister to appoint a conciliation officer or mediator, which triggers a bar for a period which essentially allows that process to run its course. In practice, this ends up being a way for the union to extend its protection. So it has one year to get a first collective agreement, and if it fails to do so, it asks the Minister to appoint a conciliation officer or mediator. Then, once that process runs its course, the bar is extended for a certain period of time beyond. Similar principles apply when subsequently renegotiating expiring collective agreements - conciliation bars an application after the expiration of the existing collective agreement.
If a strike or lock-out begins, that also creates a bar - essentially, if the bargaining unit gives the union the go-ahead for a strike, they have to give the union at least 6 months to try to accomplish its objectives.
One of the major practical challenges for an employee trying to decertify a union surrounds the whole 'conciliation' concept. How do you find out if the union has sought conciliation without asking questions that would tip off the union to your impending application? Ultimately, the best bet for decertifying unions is by making sure the application gets started within those three-month windows, and not waiting for existing collective agreements to expire.
Step 3: Get your "Evidence" together
In order to make an application to terminate bargaining rights, there are going to be two substantive requirements. First, you're going to have to show 'evidence' that at least 40% of the bargaining unit no longer wants to be represented by a union, and then later when a vote occurs at least 50% plus one of the bargaining unit has to vote on your side.
But first things first, so let's look at the evidence. It's best to think of it like a petition. Every page has to show what they're signing, and each name should have the printed name, signature, and date of signature. You also need to provide the OLRB with an alphabetical list of employees corresponding with the evidence filed, and a declaration verifying the evidence (OLRB Form A-80).
Step 4: Serve the Union and Employer and File the Application
Well, first you need to complete all the below documents. That's a given. After you find them all on the OLRB website. Which isn't quite as simple as it should be, but I've tried to simplify it with links to the PDF versions of everything. There are Word versions available, too.
You need to serve a termination package on the union, including the following:
And, on the employer, the following:
Then, within two days, you need to file (by any means except email, fax, or registered mail) with the OLRB the following:
See? Couldn't be simpler.
Step 5: Win the Vote
There are limits to what you are allowed to do in campaigning. Threatening, intimidation, etc., these tactics aren't kosher. But as a member of the bargaining unit, your speech isn't nearly as restricted as the employer's speech in terms of trying to persuade your fellow workers that the union isn't in their best interests. Remember that this is your campaign; the employer is barely more than a bystander, and can't do much to help you. And if they offer assistance, you should say no, or risk compromising the application.
*****
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.
The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.
I believe that there are major problems with the current structure of our labour relations regime in Ontario, mainly because I believe that "labour" itself has become an entity with its own interests, and a powerful one at that. Rather than, as I believe should be the case, an advocacy mechanism for workers. The end result is that there are times when a union puts its own interests above those of individuals it represents, or even above entire bargaining units under its care.
So we frequently see cases in the jurisprudence involving employees trying to sidestep the union to deal with their employer (almost always unsuccessful, except in the Human Rights arena, where it *can* work), or taking on the union directly in a Duty of Fair Representation application (almost always unsuccessful, because there's a high threshold for it), and I have had plenty of employees call me directly because they aren't happy with the way that their unions are representing their interests. (Think about how big a deal that is: You've already paid union dues. You're not getting them back. Included in union dues is representation as against your employer. How dissatisfied would you have to be before you would hire your own lawyer at your own expense, paying hundreds of dollars per hour, to do something you've already paid somebody else to do?) The trouble is that there is seldom much to be done; under the statute, the union has the exclusive mandate to represent them, and they can't opt out of this.
Professor Doorey sees it thus: The bargaining unit, if displeased with the union, can get rid of the union. This is true. But it seldom happens, because bargaining unit members usually don't have the sophistication or resources to successfully decertify a union, and any employer involvement or assistance will usually be fatal to the effort. The rules governing decertification are actually fairly complicated.
So, for those employees who want to decertify a union, here's a general guide as to how. Remember that every case is unique in its own way, and the best way to move forward, if you can afford to, is to hire a qualified lawyer to assist you. The below is not legal advice, and does not cover every scenario. Especially note that the process is different for construction industry matters.
Step 1: Determine if you can bring the Application
The general rule is that you have to be a member of the bargaining unit in order to apply for termination of bargaining rights, and that any member of the bargaining unit can do so. However, the application can't be tainted by management influence, and there have been cases in which unions have argued that the person making the application was too closely connected to the managerial team.
Step 2: Find the Window
The Labour Relations Act sets out a variety of different circumstances in which you cannot make an application to terminate your union's bargaining rights.
The Application can be made under the following circumstances:
- If more than a year has passed since the union was certified, and no collective agreement has been reached;
- If a collective agreement exists and has a term of three years or less, then after the start of the last three months of its operation (and before a new collective agreement commences or a renewal of the agreement is effective);
- If a collective agreement exists and has a term of more than three years, then between the start of the 34th month and the start of the 37th month of its operation, then for the last three months of each year of its operation thereafter (and for the last three months of its operation before it expires).
Let's say that my union and employer commenced a collective agreement with a 24-month term, starting May 1st 2011 and ending April 30th 2013. If I want to decertify the union, the window opens on February 1st, 2013 (three months before the end), and closes when a new collective agreement becomes effective. So if the employer and union are able to negotiate a new agreement to start for May 1st, 2013, I need to have my application in before then.
Or suppose my union and employer negotiate a long-term collective agreement, going from September 1st 2011 to August 31st 2016 (five years). I would then have three month windows at the end of the third, fourth, and fifth years of operation. (Window from June 1st to August 31st of 2014 and 2015, and then a window opening June 1st 2016 that ends when a new collective agreement becomes effective.)
One of many important things to remember is that, if the bargaining unit ratifies a new collective agreement, you're probably s.o.l. for a long time if you want to get the union out. When most employees treat a new collective agreement as being inevitable, and a question of how long it will take and what actions (i.e. strikes) may be required to get a better deal, that's a problem; people are likely to vote in favour of a tentative agreement so long as it is tolerable, and this is especially true of those who would rather be without a union in any event.
But there are also bars to initiating an application, even within those windows. There's a conciliation process available to the parties: The union or the employer can ask the Minister to appoint a conciliation officer or mediator, which triggers a bar for a period which essentially allows that process to run its course. In practice, this ends up being a way for the union to extend its protection. So it has one year to get a first collective agreement, and if it fails to do so, it asks the Minister to appoint a conciliation officer or mediator. Then, once that process runs its course, the bar is extended for a certain period of time beyond. Similar principles apply when subsequently renegotiating expiring collective agreements - conciliation bars an application after the expiration of the existing collective agreement.
If a strike or lock-out begins, that also creates a bar - essentially, if the bargaining unit gives the union the go-ahead for a strike, they have to give the union at least 6 months to try to accomplish its objectives.
One of the major practical challenges for an employee trying to decertify a union surrounds the whole 'conciliation' concept. How do you find out if the union has sought conciliation without asking questions that would tip off the union to your impending application? Ultimately, the best bet for decertifying unions is by making sure the application gets started within those three-month windows, and not waiting for existing collective agreements to expire.
Step 3: Get your "Evidence" together
In order to make an application to terminate bargaining rights, there are going to be two substantive requirements. First, you're going to have to show 'evidence' that at least 40% of the bargaining unit no longer wants to be represented by a union, and then later when a vote occurs at least 50% plus one of the bargaining unit has to vote on your side.
But first things first, so let's look at the evidence. It's best to think of it like a petition. Every page has to show what they're signing, and each name should have the printed name, signature, and date of signature. You also need to provide the OLRB with an alphabetical list of employees corresponding with the evidence filed, and a declaration verifying the evidence (OLRB Form A-80).
Step 4: Serve the Union and Employer and File the Application
Well, first you need to complete all the below documents. That's a given. After you find them all on the OLRB website. Which isn't quite as simple as it should be, but I've tried to simplify it with links to the PDF versions of everything. There are Word versions available, too.
You need to serve a termination package on the union, including the following:
- OLRB Form C-3, completed with the union's name and the date in the appropriate fields (the full name of the form is Notice to Union of Application for Termination of Bargaining Rights Under Section 63 of the Act...don't you love pithy names?);
- A completed copy of Form A-6 (Application for Termination of Bargaining Rights Under Section 63 of the Act);
- A blank copy of Form A-7 (Response to Application for Termination of Bargaining Rights Under Section 63 of the Act);
- A copy of Information Bulletin 2 (which is where this list is found, incidentally);
- A copy of Information Bulletin 3;
- A copy of Information Bulletin 5; and
- A copy of Part III of the Board's Rules of Procedure.
And, on the employer, the following:
- Form C-4;
- The same Form A-6 as above;
- A blank Form A-8;
- A blank Schedule C (List of Employees)
- A copy of Information Bulletin 2 (which is where this list is found, incidentally);
- A copy of Information Bulletin 3;
- A copy of Information Bulletin 5; and
- A copy of Part III of the Board's Rules of Procedure.
Then, within two days, you need to file (by any means except email, fax, or registered mail) with the OLRB the following:
- A signed original and a completed copy of Form A-6;
- The evidence that the employees don't wish to be represented by a union;
- The above-noted list of employees corresponding with the evidence;
- Form A-80
See? Couldn't be simpler.
Step 5: Win the Vote
There are limits to what you are allowed to do in campaigning. Threatening, intimidation, etc., these tactics aren't kosher. But as a member of the bargaining unit, your speech isn't nearly as restricted as the employer's speech in terms of trying to persuade your fellow workers that the union isn't in their best interests. Remember that this is your campaign; the employer is barely more than a bystander, and can't do much to help you. And if they offer assistance, you should say no, or risk compromising the application.
*****
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.
The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.
Friday, August 12, 2011
Unions can be certified as bargaining agent even without majority support
One of the amendments made to the Labour Relations Act by the McGuinty government is the restoration of what is commonly referred to as the "remedial certification" clause: Where the employer has engaged in unfair labour practices that interfere with a union organizing campaign, it is possible for the union to apply for certification even notwithstanding that the members of the bargaining don't want to unionize.
There are a few different structures for union certification. The most general one is that, if the union can show that it has the support of at least 40% of the bargaining unit (i.e. the group of employees whom it would represent), the matter can be put to a vote. If the union gets 50% plus one support, it becomes the certified bargaining agent. The 40% support is usually shown through signed union cards. (In the construction industry, it is even possible that, if the majority of the employees have signed union cards, the union can be certified without a vote. This is called "card-based certification")
Many employers do not want to have to deal with unions, yet the Labour Relations Act prohibits employers from taking certain actions which would interfere with unions or the exercise of rights under the Act - "unfair labour practices". If the employer engages in unfair labour practices and this interferes with an organizing campaign, there are a number of remedies available to the union, such as holding a new representation vote and providing them with whatever access they need to the employees prior to the same...or, if these remedies would not suffice, remedial certification is now available.
The logic is this: The employer has a great deal of power over employees. If the employer actively takes steps to frighten or intimidate employees to oppose the union, then it may be impossible for any attempts at persuasion by the union to overcome the employer's intimidation. In such cases, the only way to get past the employer's intimidation is to certify the union even notwithstanding that it does not have the support of the members of the bargaining unit.
The most recent such decision out of the Ontario Labour Relations Board was in LIUNA v. 1652472 Ontario Inc. That case involved a pretty typical dispute about the termination of a union supporter.
Organizing campaigns often begin when the employer hires a new employee with union connections. Of course, the employer doesn't know about this, and it is in fact illegal to refuse to hire somebody because they have union connections. But the new employee goes to great lengths to keep this secret, and quietly begins discussing the union with co-workers to try to gain support.
The trouble - for the employer, as it turns out - is that union insiders often quickly develop adversarial relationships with management for reasons other than their union organizing efforts. Whether the union supporter is a new employee (whose priorities are obviously something other than demonstrating exemplary dedication and professional competence) or an existing employee (who would usually support the union because of an existing acrimonious relationship with management), it is neither unusual nor surprising that management frequently ends up disciplining and/or terminating union supporters in organizing campaigns. Then, the union simply has to allege that the employee was terminated because of their involvement with the union, and the employer bears the onus of proving that, in fact, union involvement had no bearing on the termination.
In most cases, as in this one, the fight on the facts becomes whether or not the employer knew or suspected that the employee was involved with the union.
(I've seen cases, however, in which there was reason to question whether or not a disciplined employee even was involved with the union prior to the discipline, where it looks like even the employee didn't know about the organizing efforts until approached after the discipline, and then alleging that the discipline was motivated by anti-union animus.)
In this LIUNA case, the foreman insisted that he had no knowledge of the employee's union involvement: The employee was fired for performance issues, and because the other guys on the team didn't like working with him. The Board didn't believe him...well, the Board accepted that he wasn't popular, and that the other guys didn't like him, but nonetheless the Board found it unlikely that he was fired when he was without his union involvement being a motivating factor.
That, alone, will usually be enough for remedial certification. But that wasn't everything. In addition, there was a confrontation between a union organizer and the foreman on the construction site, which the Board found was an effort to alienate the union. And then there was a letter which the employer read aloud to most of the employees to express their feelings about the union.
What an employer can and can't say to employees is the subject of much jurisprudence. An employer is allowed to say that it opposes unionization. It is allowed to educate employees about the process for unionization (i.e. to ensure that they know about the potential for card-based certification, that they may not in fact get a subsequent chance to vote aye or nay if they sign enough cards). But it cannot make or imply any threat to job security. This prohibition stands even if the 'threats' are nothing more than objectively true and verifiable facts - employers have been found to have breached the Act simply by walking through the numbers and showing why the additional costs of doing business with a union (and there are additional costs) would prevent the facility from continuing to be economically viable. There is also case law finding that an employer, when asked by employees whether or not job security would be endangered, breached the Act by refusing to answer.
The letter in this case contained the following sentence:
Food for Thought
There are obvious policy concerns with remedial certification. While it can and has been argued that this is a way to ensure that employers "don't get away with" their unfair labour practices, thus discouraging unfair labour practices, that casts the certification itself as a punitive action. If punishment is appropriate in a given case, the ordinary sphere of quasi-criminal punishment should suffice: Hoisting a bargaining agent upon workers who don't want it is not an appropriate way of punishing the employer.
No, the real objective must be compensatory. Yet who are we concerned about compensating? The workers? Perhaps, but there is something patronizing and unsettling about saying to workers, "Because you're being kept from choosing what's best, we're taking the choice away from you." Perhaps more concerning is that remedial certification is automatic. The union need not show that it would have won the vote but for the employer's unfair labour practice. If you look at it as a way of compensating the workers, then you have to presuppose that workers, acting without coercion, will *always* want a union. And that is simply and obviously not true. In this case, on the facts as found by the Board it seems like a fairly safe bet that LIUNA was going to have a hard time winning a certification vote: Their insider was not well liked at all in the bargaining unit.
So it strikes me that the real objective of remedial certification is to compensate the union itself. Which concerns me: When the union's interests are put ahead of the interests of the employees, it seems to be a perversion of the very purposes of the Labour Relations Act.
Add to this the 'entrapment' potential for a union quietly engaging in an organizing campaign, and there are real policy concerns.
*****
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.
There are a few different structures for union certification. The most general one is that, if the union can show that it has the support of at least 40% of the bargaining unit (i.e. the group of employees whom it would represent), the matter can be put to a vote. If the union gets 50% plus one support, it becomes the certified bargaining agent. The 40% support is usually shown through signed union cards. (In the construction industry, it is even possible that, if the majority of the employees have signed union cards, the union can be certified without a vote. This is called "card-based certification")
Many employers do not want to have to deal with unions, yet the Labour Relations Act prohibits employers from taking certain actions which would interfere with unions or the exercise of rights under the Act - "unfair labour practices". If the employer engages in unfair labour practices and this interferes with an organizing campaign, there are a number of remedies available to the union, such as holding a new representation vote and providing them with whatever access they need to the employees prior to the same...or, if these remedies would not suffice, remedial certification is now available.
The logic is this: The employer has a great deal of power over employees. If the employer actively takes steps to frighten or intimidate employees to oppose the union, then it may be impossible for any attempts at persuasion by the union to overcome the employer's intimidation. In such cases, the only way to get past the employer's intimidation is to certify the union even notwithstanding that it does not have the support of the members of the bargaining unit.
The most recent such decision out of the Ontario Labour Relations Board was in LIUNA v. 1652472 Ontario Inc. That case involved a pretty typical dispute about the termination of a union supporter.
Organizing campaigns often begin when the employer hires a new employee with union connections. Of course, the employer doesn't know about this, and it is in fact illegal to refuse to hire somebody because they have union connections. But the new employee goes to great lengths to keep this secret, and quietly begins discussing the union with co-workers to try to gain support.
The trouble - for the employer, as it turns out - is that union insiders often quickly develop adversarial relationships with management for reasons other than their union organizing efforts. Whether the union supporter is a new employee (whose priorities are obviously something other than demonstrating exemplary dedication and professional competence) or an existing employee (who would usually support the union because of an existing acrimonious relationship with management), it is neither unusual nor surprising that management frequently ends up disciplining and/or terminating union supporters in organizing campaigns. Then, the union simply has to allege that the employee was terminated because of their involvement with the union, and the employer bears the onus of proving that, in fact, union involvement had no bearing on the termination.
In most cases, as in this one, the fight on the facts becomes whether or not the employer knew or suspected that the employee was involved with the union.
(I've seen cases, however, in which there was reason to question whether or not a disciplined employee even was involved with the union prior to the discipline, where it looks like even the employee didn't know about the organizing efforts until approached after the discipline, and then alleging that the discipline was motivated by anti-union animus.)
In this LIUNA case, the foreman insisted that he had no knowledge of the employee's union involvement: The employee was fired for performance issues, and because the other guys on the team didn't like working with him. The Board didn't believe him...well, the Board accepted that he wasn't popular, and that the other guys didn't like him, but nonetheless the Board found it unlikely that he was fired when he was without his union involvement being a motivating factor.
That, alone, will usually be enough for remedial certification. But that wasn't everything. In addition, there was a confrontation between a union organizer and the foreman on the construction site, which the Board found was an effort to alienate the union. And then there was a letter which the employer read aloud to most of the employees to express their feelings about the union.
What an employer can and can't say to employees is the subject of much jurisprudence. An employer is allowed to say that it opposes unionization. It is allowed to educate employees about the process for unionization (i.e. to ensure that they know about the potential for card-based certification, that they may not in fact get a subsequent chance to vote aye or nay if they sign enough cards). But it cannot make or imply any threat to job security. This prohibition stands even if the 'threats' are nothing more than objectively true and verifiable facts - employers have been found to have breached the Act simply by walking through the numbers and showing why the additional costs of doing business with a union (and there are additional costs) would prevent the facility from continuing to be economically viable. There is also case law finding that an employer, when asked by employees whether or not job security would be endangered, breached the Act by refusing to answer.
The letter in this case contained the following sentence:
From my perspective, there are a lot of down-sides to unionization. We will have less flexibility in terms of where we work, the work that we do, how we structure our days and how we price projects so that we are the successful contractor.The Board interpreted this as a threat to job security. Given all the factors, the Board found that the Act had been breached, and granted remedial certification.
Food for Thought
There are obvious policy concerns with remedial certification. While it can and has been argued that this is a way to ensure that employers "don't get away with" their unfair labour practices, thus discouraging unfair labour practices, that casts the certification itself as a punitive action. If punishment is appropriate in a given case, the ordinary sphere of quasi-criminal punishment should suffice: Hoisting a bargaining agent upon workers who don't want it is not an appropriate way of punishing the employer.
No, the real objective must be compensatory. Yet who are we concerned about compensating? The workers? Perhaps, but there is something patronizing and unsettling about saying to workers, "Because you're being kept from choosing what's best, we're taking the choice away from you." Perhaps more concerning is that remedial certification is automatic. The union need not show that it would have won the vote but for the employer's unfair labour practice. If you look at it as a way of compensating the workers, then you have to presuppose that workers, acting without coercion, will *always* want a union. And that is simply and obviously not true. In this case, on the facts as found by the Board it seems like a fairly safe bet that LIUNA was going to have a hard time winning a certification vote: Their insider was not well liked at all in the bargaining unit.
So it strikes me that the real objective of remedial certification is to compensate the union itself. Which concerns me: When the union's interests are put ahead of the interests of the employees, it seems to be a perversion of the very purposes of the Labour Relations Act.
Add to this the 'entrapment' potential for a union quietly engaging in an organizing campaign, and there are real policy concerns.
*****
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.
Friday, July 15, 2011
Unionized Employees: Court isn't for you
This isn't new, but every so often a new case pops up - and is dealt with quite quickly - involving a unionized employee (the technical term is "bargaining unit member") trying to sue his employer.
Under most circumstances, that's impossible. Collective agreements must provide for a grievance process, and for grievance arbitration. So if somebody who is a member of a bargaining unit gets terminated, then he has to go to his union rep to file a grievance; you can't go retain a lawyer to try to sidestep the union and sue the employer directly.
The underlying principle is that, once a group of employees forms a bargaining unit, that group of employees no longer has a direct relationship with the employer. Rather, they have a relationship with the union; the union has the relationship with the employer.
Nor can such an employee sue his union if he isn't happy with the job it has done representing his interests, generally speaking. Under the Labour Relations Act, the Ontario Labour Relations Board has exclusive jurisdiction over most such issues. There is a select number of issues that an employee can raise directly with his employer at the OLRB, but most issues must go through the grievance process, and an employee displeased with the Union must bring a "DFR" (Duty of Fair Representation) application against the Union. The trouble with DFRs is that the Union has a very wide latitude in deciding how best to represent the interests of the bargaining unit on the whole. If it decides that the bargaining unit can best be served on the whole by refusing to advance your overtime grievance in order to not taint the next round of bargaining, then you're pretty much stuck unless you can establish that the Union's actions were "arbitrary, discriminatory, or in bad faith". The exception is with discharge grievances: A Union generally can't refuse to grieve a discharge grievance, because the consequence of that refusal is that the employee is no longer part of the bargaining unit and - following the above example - won't have any of the benefits that may be obtained in the next round of bargaining.
In law, however, every rule has its exceptions. The OLRB's jurisdiction specifically excludes certain types of employee associations, such as fire associations. I have had occasion to opine that a Court proceeding might be instituted by a firefighter against the fire association, under the right circumstances, in a similar fashion to a DFR application. As far as I can tell, however, that hasn't happened. It's peripheral, in any event.
Moving along, consider the recent Paonessa v. Lifemark Health Management Inc. case. Health management companies are essentially external human resources departments working with disabled employees to assist in assessing them and facilitating an accelerated return to work. (Essentially, they track disabled employees, determine the length of treatment, limitations, and accommodations which might be made to phase them back into the workplace asap.)
The Facts
The employee was off work, receiving disability benefits, for three and a half years. At that point, the employer retained Lifemark to conduct a Functional Abilities Evaluation (FAE). The assessor concluded that the employee was not capable of returning to work, and the employer proceeded to discharge the employee.
The employee grieved the discharge, settled it on terms involving a return to work, then was discharged again following an alleged failure on her part to comply with the terms of the settlement. She grieved the second discharge, and settled again with the employer.
Then she proceeded to sue Lifemark, alleging interference with economic relations. Lifemark turned around and claimed for indemnification against the employer.
The Issues
The biggest and most obvious problem with suing Lifemark is this: Any settlement she would have agreed to with the employer would almost certainly have included the execution of a "Full and Final Release" including a clause preventing the employee from initiating proceedings against the employer or any other person who might seek indemnification from the employer.
When I explain these clauses to my clients, I put it this way: Suppose I hire a general contractor to renovate my home, and he subcontracts to an electrician, who performs his work in a negligent manner, causing me damages. Now suppose I sue the electrician for his negligence, and reach a settlement with him.
After settling with the electrician, imagine that I proceed to sue the general contractor in breach of contract, because he didn't provide the renovations I bought in a good and workmanlike manner. What is he going to do? Well, he'll issue a Third Party Claim against the electrician, saying "It's his fault, so he should have to pay me back for anything I'm required to pay." The electrician, already having settled this matter directly with me, won't be pleased with this turn of events...and would point to the release and say, "Sorry, the statement of claim has to be struck because the plaintiff already has his settlement for anything for which I might be responsible." Ultimately, in this case, the judge similarly finds that the plaintiff had her remedy through the grievance process, so the litigation is an abuse of process.
The other issue in whether or not the action is barred because of the fact that she's a bargaining unit employee. The judge's answer is that the subject matter of this law suit (namely, the conduct of the FAE) is squarely the subject matter of the collective agreement, and therefore the action is barred by the Labour Relations Act.
Thoughts
I don't doubt the correctness of this decision, I think the justice of it is in the right place, and I'm impressed by the judge's clarity in explaining his reasoning...but I'm still left with some nagging concerns: In any other circumstance, there would be the potential for a freestanding action against the organization that administered the FAE, and in the occasional circumstance there might be good reason to sue that organization in addition to the employer. That's not possible for bargaining unit members. So what happens if the organization carrying out the FAE does something beyond what the employer could reasonably be held responsible for in the grievance process?
I think the answer to that question is likely that such a scenario can't be permitted to occur. It cements the agency relationship. If an action against the assessor is statute-barred, then this must have the result that everything the assessor does in carrying out the FAE must be considered actions of the employer, for which the employer may be liable. (Of course, there's nothing stopping the employer from suing the assessor, in the right case.)
*****
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.
Under most circumstances, that's impossible. Collective agreements must provide for a grievance process, and for grievance arbitration. So if somebody who is a member of a bargaining unit gets terminated, then he has to go to his union rep to file a grievance; you can't go retain a lawyer to try to sidestep the union and sue the employer directly.
The underlying principle is that, once a group of employees forms a bargaining unit, that group of employees no longer has a direct relationship with the employer. Rather, they have a relationship with the union; the union has the relationship with the employer.
Nor can such an employee sue his union if he isn't happy with the job it has done representing his interests, generally speaking. Under the Labour Relations Act, the Ontario Labour Relations Board has exclusive jurisdiction over most such issues. There is a select number of issues that an employee can raise directly with his employer at the OLRB, but most issues must go through the grievance process, and an employee displeased with the Union must bring a "DFR" (Duty of Fair Representation) application against the Union. The trouble with DFRs is that the Union has a very wide latitude in deciding how best to represent the interests of the bargaining unit on the whole. If it decides that the bargaining unit can best be served on the whole by refusing to advance your overtime grievance in order to not taint the next round of bargaining, then you're pretty much stuck unless you can establish that the Union's actions were "arbitrary, discriminatory, or in bad faith". The exception is with discharge grievances: A Union generally can't refuse to grieve a discharge grievance, because the consequence of that refusal is that the employee is no longer part of the bargaining unit and - following the above example - won't have any of the benefits that may be obtained in the next round of bargaining.
In law, however, every rule has its exceptions. The OLRB's jurisdiction specifically excludes certain types of employee associations, such as fire associations. I have had occasion to opine that a Court proceeding might be instituted by a firefighter against the fire association, under the right circumstances, in a similar fashion to a DFR application. As far as I can tell, however, that hasn't happened. It's peripheral, in any event.
Moving along, consider the recent Paonessa v. Lifemark Health Management Inc. case. Health management companies are essentially external human resources departments working with disabled employees to assist in assessing them and facilitating an accelerated return to work. (Essentially, they track disabled employees, determine the length of treatment, limitations, and accommodations which might be made to phase them back into the workplace asap.)
The Facts
The employee was off work, receiving disability benefits, for three and a half years. At that point, the employer retained Lifemark to conduct a Functional Abilities Evaluation (FAE). The assessor concluded that the employee was not capable of returning to work, and the employer proceeded to discharge the employee.
The employee grieved the discharge, settled it on terms involving a return to work, then was discharged again following an alleged failure on her part to comply with the terms of the settlement. She grieved the second discharge, and settled again with the employer.
Then she proceeded to sue Lifemark, alleging interference with economic relations. Lifemark turned around and claimed for indemnification against the employer.
The Issues
The biggest and most obvious problem with suing Lifemark is this: Any settlement she would have agreed to with the employer would almost certainly have included the execution of a "Full and Final Release" including a clause preventing the employee from initiating proceedings against the employer or any other person who might seek indemnification from the employer.
When I explain these clauses to my clients, I put it this way: Suppose I hire a general contractor to renovate my home, and he subcontracts to an electrician, who performs his work in a negligent manner, causing me damages. Now suppose I sue the electrician for his negligence, and reach a settlement with him.
After settling with the electrician, imagine that I proceed to sue the general contractor in breach of contract, because he didn't provide the renovations I bought in a good and workmanlike manner. What is he going to do? Well, he'll issue a Third Party Claim against the electrician, saying "It's his fault, so he should have to pay me back for anything I'm required to pay." The electrician, already having settled this matter directly with me, won't be pleased with this turn of events...and would point to the release and say, "Sorry, the statement of claim has to be struck because the plaintiff already has his settlement for anything for which I might be responsible." Ultimately, in this case, the judge similarly finds that the plaintiff had her remedy through the grievance process, so the litigation is an abuse of process.
The other issue in whether or not the action is barred because of the fact that she's a bargaining unit employee. The judge's answer is that the subject matter of this law suit (namely, the conduct of the FAE) is squarely the subject matter of the collective agreement, and therefore the action is barred by the Labour Relations Act.
Thoughts
I don't doubt the correctness of this decision, I think the justice of it is in the right place, and I'm impressed by the judge's clarity in explaining his reasoning...but I'm still left with some nagging concerns: In any other circumstance, there would be the potential for a freestanding action against the organization that administered the FAE, and in the occasional circumstance there might be good reason to sue that organization in addition to the employer. That's not possible for bargaining unit members. So what happens if the organization carrying out the FAE does something beyond what the employer could reasonably be held responsible for in the grievance process?
I think the answer to that question is likely that such a scenario can't be permitted to occur. It cements the agency relationship. If an action against the assessor is statute-barred, then this must have the result that everything the assessor does in carrying out the FAE must be considered actions of the employer, for which the employer may be liable. (Of course, there's nothing stopping the employer from suing the assessor, in the right case.)
*****
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.
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