Dealing with problems between a unionized worker and a union can raise some interesting and complicated scenarios for employers. A union member who has a dispute with his union may turn to his employer for help. Or, an employer may have an employee who has been suspended or expelled from the union, but wants to continue employment.
To navigate through these types of scenarios, employers must be aware of their obligations and rights, as well as those of the union, in internal union-member disputes.
Limits on union influence
The recent Ontario Court of Appeal case of Birch v. Union of Taxation Employees, Local 70030 is a good example of a union that crossed the line in the discipline of members. The union brought disciplinary proceedings against employees for crossing the picket line, because that violated its constitution. The employees were suspended from the union for three years — one year for each day worked during the strike — and fined the equivalent of gross daily salaries for the three days worked. The employees refused to pay the fines and the union took them to court.
In upholding a lower court’s decision to refuse to enforce the fines, the Ontario Court of Appeal ruled the fines levied were unconscionable and therefore unenforceable.
“The imposition of a hefty fine, at a time when members may already be suffering financially as a result of strike action, supports the conclusions that the fine provisions are very unfair,” said the court.
Notably, the Court of Appeal did not rule on the trial court’s finding that a trade union could not go to court to recover penalties levied against members under the union’s constitution without a statutory grant of authority.
However, in T.W.U., Local 202 v. MacMillan, the union charged employees with failing to support union activities during a labour dispute when they crossed the picket lines. The employees refused to pay the fines imposed by the union and it was unable to enforce the payment in court because the Alberta Provincial Court found the fines were neither debts nor damages under Alberta’s Provincial Court Act.
Union requests for termination
The ultimate discipline a union can exact on a member is expulsion and a request the employer terminate the employee. Almost every Canadian jurisdiction has legislation that explicitly allows parties to include a clause in their collective agreements that makes it a condition of employment to belong to a specified union or grants employment preference to a member of the specified union.
There are limits, which vary from one jurisdiction to another, on which situations allow a union to request termination of an employee for non-membership in the union.
For example, in Ontario, unions are typically prohibited from requiring an employer to terminate an employee because he has been expelled, suspended or had his membership rights withheld, unless the employee has engaged in unlawful activity against the union. In the federal jurisdiction, under the Canada Labour Code, a union’s right to request the dismissal of an employee is restricted to an employee’s failure to pay periodic dues, assessments and initiation fees.
Unions must also ensure any expulsion that threatens a member’s job is done in good faith and in accordance with its constitution and the principles of natural justice. They cannot discriminate against employees on prohibited grounds in the application of discipline and employees have the right to cross picket lines — in most jurisdictions — without having fines levied against them.
What can an employer do?
Generally speaking, employers can confer with employees during work hours and express a personal point of view on the matter, so long as they do not use coercion, intimidation, threats, promises or undue influence. An employer may, therefore, assess the validity of an employee’s concerns, express its views on the matter and determine for itself whether the union has engaged in any unfair labour practices.
Employers should feel confident they may objectively outline employees’ rights, such as their right to cross a picket line, without a reprisal from the union.
However, an employer should avoid engaging in the dispute in a way that could be perceived as anti-union or interfering with the union’s administration. As such, employers should be wary of assisting employees to “take on” the union.
It is also inadvisable to pay — or promise to pay — for an employees’ legal fees, particularly in a petition case, an application for termination of bargaining rights or in a context where an application for certification is pending. However, it was determined by the Ontario Labour Relations Board in A.T.U. v. Miller Group that an employer may refer an employee to independent legal counsel as long as it is done at arm’s-length.
An employer should also never:
• suggest or condone the formation of an alternative employee association on company time
• deal with such disputes in a manner that creates an atmosphere where employees perceive a distinct preference for an employee association rather than the union
• manipulate a dispute between a member and its union in order to have the union de-certified.
Anthony R. Moffatt is a lawyer with the labour and employment group at Ogilvy Renault’s
office. He can be reached at (613) 780-1546 or firstname.lastname@example.org. Christine Kostiuk is a recent graduate of the Queen’s University law school. She is currently articling with Ogilvy Renault in