Union withholds strike pay from line crossers

New tactic could replace union fines

The Public Service Alliance of Canada (PSAC) has joined the Telecommunications Workers Union (TWU) Local 202 in taking the issue of union fines to Canada’s top court.

PSAC recently applied for leave to have the Supreme Court of Canada hear an appeal of the Ontario Court of Appeal’s ruling in Birch and Luberti (which refused to enforce union fines against members who crossed a picket line).

TWU has asked to join its appeal with PSAC’s, if it is granted leave to appeal, so the two cases dealing with union fines can be heard as one. Unless the Supreme Court reverses the lower court decisions in both cases, the courts will remain off-limits as venues for unions to enforce fines imposed on members.

However, a month-long strike by Canada Post support staff in late 2008 showed a new tactic unions could use — withholding strike pay.

On Nov. 17, 2008, more than 2,000 support staff, who were members of the Union of Postal and Communications Employees (UPCE) — which is part of PSAC — went on strike. During the strike, several workers in various locations across Canada returned to work over concerns about how the union was bargaining and communicating to members.

The strike ended on Dec. 23 but the union threatened fines for members who had crossed the picket lines. Rather than impose fines, which wouldn’t have stood up in light of the Birch and Luberti and TWU decisions, UPCE withheld strike pay from some members who had returned to work.

These included a group of workers in Montreal who started a petition during the strike stating they should be allowed to vote on Canada Post’s most recent proposal, which the union had rejected. After giving the petition to UPCE and receiving no response, they returned to work. One member said the union threatened him with fines, saying it could force him to pay as it had won court decisions to that effect.

When the strike ended, Canada Post and the UPCE reached an agreement for no reprisals by either side, but the Montreal worker found the union was withholding his strike pay for the time he spent picketing before returning to work. After being sent back and forth between his picket leader and the local union headquarters, he was told he was under investigation and his strike pay was being withheld.

Workers in this situation have little recourse, said John Mortimer, president of the Vancouver-based Canadian Labourwatch Association, a non-profit group that advances unionized employee rights. Courts generally don’t interfere with union affairs, he said, but workers don’t have any way to fight unions in labour arbitration.

“There is no statutory protection of workers to be paid strike pay and a worker would need to file a duty of misrepresentation with a labour board that the employer isn’t protecting her from the union,” said Mortimer. “It’s a virtual impossibility for these people to sue for strike pay.”

Patty Ducharme, PSAC’s national executive vice-president, said it was the union’s understanding workers who crossed the picket line and returned to work during the strike were paid in full by Canada Post, including for the time they missed while on strike. As a result, they didn’t suffer any economic hardship.

“It was an unfortunate situation, people were in a tough place,” Ducharme said. “It’s ironic that members who have been paid by the employer are looking for strike pay as well to enhance their situation.”

Fines are a normal part of discipline according to the union’s constitution, along with suspension of membership, she said. It’s waiting on the Supreme Court of Canada’s final decision on collection of fines through the courts, but in the meantime it will collect fines through other methods, such as withholding reinstatement of membership, she said.

The Canada Post worker in Montreal, who asked not to be identified, said his employer has been very supportive and open with him and his fellow co-workers during the labour dispute and its aftermath.

“During the strike, the employer won the battle of communication over the union,” he said. “You feel like they wanted to make things work and I have a lot of respect for them.”

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter. For more information, visit employmentlawtoday.com.

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