If asked about the role of a union, most people first think of a union as a champion for employees, and an adversary of employers. Unions exist to advocate for the interests of workers, including safe and respectful working conditions. But, unions are employers, too.
Unions encounter the same workplace issues as other employers yet, because unions are a voice for workers, they have unique sensitivities and considerations when managing their own staff. It is important for external legal counsel to understand union values when assisting with the union-employee relationship.
In our practice, the following are the most needed and common areas for which unions use employer-side counsel:
Negotiating and drafting employment contracts with non-bargaining unit staff;
Reviewing, revising and drafting workplace policies, including respectful workplace, privacy, time-off and electronic device policies;
Drafting and implementing non-disclosure and confidentiality agreements;
Advising on issues arising in relation to collective bargaining;
Retaining external investigators, where required;
Implementing procedures for staff progressive discipline and the grievance process; and
Acting as counsel in grievance hearings, including terminations.
Unions, unfortunately, have not been spared struggles with their own employees, including protracted (READ: financially and politically costly) legal actions. This has especially been so where precautionary and planning measures, like those listed above, have been missed.
One example of protracted litigation involving a union and its employee is the seminal Supreme Court of Canada case of Evans v. Teamsters Local Union No. 31, 2008 SCC 20. In this case, the plaintiff was terminated without notice by the Teamsters from his 23-year employment. The Teamsters continued his pay while trying to reach a settlement, but after five months of the employee not finding replacement work, the Teamsters advised the employee to return to his old job in the Teamsters offices for a period of 19-months. The Teamsters were offering him a fixed-term contract for the purpose of avoiding liability for severance pay.
The Court held that the plaintiff should have accepted the Teamsters’ offer of re-employment as there were no circumstances making his return to work unreasonable. Although with this ruling the Teamsters did escape severance liability because they offered to return him to work, they incurred the costs associated with the five years it took for resolution through litigation. (The plaintiff had been dismissed in January 2003 and the decision was rendered in 2008).
A well-drafted employment contract between the Teamsters and Mr. Evans would have limited severance liability. This, in turn, may have made litigation unnecessary. The savings in time, union efforts, and legal fees would very likely have been drastic.
Unions are also involved in labour arbitrations on the employer-side of the table. Unifor, Local 467 and UNITE-HERE, Local 40 (Jandu), 2016 CanLII 77598 (BC LA) ("UNITE-HERE") is one example: the employer, UNITE-HERE, Local 40, indefinitely suspended the grievor for events in his prior employment with other trade unions. UNITE-HERE submitted it could not trust its employee as his behaviour was the “antithesis of principled or trust-instilling conduct”. The actions of the grievor that caused such concern occurred during an interview for a union representative/organizer position, when he failed to disclose to the President that he was being sued by another union for a breach of confidentiality. He also misrepresented his reasons for leaving the previous union, and refused to provide reasonably requested information on contrived grounds of protecting privacy.
The arbitrator concluded that UNITE-HERE had rightful cause to suspend the grievor, finding the grievor’s actions a breach of the implied duty of honesty. It was held that his concealment of his employment history was central to the grievor’s candidacy as a union representative.
Consistent with the finding in UNITE-HERE, it is our view that union members are best served and protected by trustworthy and capable union staff. We assist with this goal, whether that is through developing and drafting clear policies, assisting with progressive discipline as required, or defending against grievances filed by union employees.
For more information on this article, please do not hesitate to contact us. We are here and happy to help.