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Labour Law Exam: Did City of Toronto Just Violate the Labour Relations Act?

Here’s another practice question for labour law students gearing up for finals.

In this Toronto Star piece, Councillor Doug Holyday, who is Chair of the Employer’s Labour Relations Committee, and therefore speaks for the Employer, made the surprising comment to reporters that the union’s strike vote might be conducted improperly.  The union plans on holding its strike vote tomorrow.  Here is the quote from the paper in its entirety:

Holyday also suggested provincial officials, not the union executive, should tally the results of Tuesday’s strike vote.

“I think it’s really unfortunate that the vote to call a strike by their members is done in the way that it’s done — by the union executive who hold the election, count the votes and give the results.

“I think for such an important matter it should be done by the Ministry of Labour who should ascertain that half plus one, at least, of all the members of the union want the strike. I think in that case there probably wouldn’t even be a strike.”

Told that it sounds like he’s saying the union executive can’t be trusted to hold an honest vote, Holyday said: “I’m not saying that.

“I’m saying that it’s such an important matter that there should be a completely democratic, independently verified strike vote, and I think that if you talk to some of the people who work here you might find that, if there’s anybody that might question the findings, it might be some of our own employees.”

You tell me.  Can that quote be read any other way than as suggesting that if the government conducts the strike vote, the result will be  different than the actual strike vote taken by the union itself?  It does clearly suggest Holyday’s opinion that a strike vote taken by a union and not verified by the state is lacking in democracy in some manner.

So Holiday is saying that strike votes are so important that they should not be left to shady unions to conduct, and the state should conduct them.  [Funny enough, by the way, Holiday was one of 19 Councillors who voted against a motion a few months ago that argued that the decision to lockout City employees or to unilaterally amend their terms of employment was so important that the City's elected Council should vote on it. Holiday's position was that there was no need for Council to vote]

Ok, now consider this.  Section 70 of the Labour Relations Act says that an employer cannot interfere with the administration of the union that represents its employees.  Here is the language:

70. No employer … and no person acting on behalf of an employer … shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

We know from case law that this section does not require an ‘intent’ to interfere with a union.  The labour board has said that the issue is whether the employer’s actions “have a significant impact” on the ability of a union to represent its members (recall International Wallcoverings, which we consider in Labour Law courses).  Do you think Holiday’s ‘intent’ is to plant a seed in the mind of employees that their union may be or might in the future act inappropriately?  Do you think that might be how employees interpret his comments?  If so, is that interfering with the administration of the union or the representation of the employees by the union?

What do you think?  Does this section prohibit an employer from suggesting that a union has somehow acted inappropriately in conducting internal union elections?

Does it cover employer comments that suggest impropriety by the union that represents its employees, and that could cause employees to question the honesty of their union representatives?

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3 Responses to Labour Law Exam: Did City of Toronto Just Violate the Labour Relations Act?

  1. Deb Oldfield Reply

    March 20, 2012 at 8:32 am

    I would say its a violation of s.70 and that making these comments to the media constitutes undue influence. The problem as always is that the Board can do little about it. The Board doesn’t ever do anything other than say tsk, tsk, don’t do that again. The Board decision’s only value is in using it in the media to show Holyday, Ford, etc have no regard for the law or for the democratic rights we enjoy in this FREE, DEMOCRATIC, country.

  2. Dennis Buchanan Reply

    March 20, 2012 at 11:13 am

    There’s a difference between actual bias and reasonable apprehension of bias. Both are problems, but the latter in no way maligns anyone involved.

    I’m no fan of the Ford administration (and there’s a certain irony in raising the spectre of conflict of interest), but I think Holyday has a point here. It’s poor optics when a statutorily obligatory vote gets counted by the group that called for the vote in the first place. It would be like the ’95 referendum votes being counted by the PQ Cabinet.

    It’s a bad idea, not because we assume that they’re going to be dishonest (after all, we wouldn’t elect officials who aren’t trustworthy, would we?), but because the democratic integrity of the process requires a non-interested third party overseeing it. That’s true of all secret ballot votes. The possibility of bias looms especially large when you consider aspects of vote-counting that require some discretion – spoiled ballots and the like.

  3. Chris Davidson Reply

    March 20, 2012 at 11:49 am

    A union is a self governing organization. Unions must be an independent, self-governing counterbalance in civil society to government and corporate power.
    Having the government count the votes in what is, essentially, a matter of internal union governance would curtail the independence of unions in this country. Government officials are at least as likely to be corrupt as union officials, especially in a scenario in which the government is employer. While Ford would have no say in how the ministry counts votes for city workers, the argument that governments officials should count strike votes would certainly extend to Ontario public service employees, teachers, etc. I would say in that situation having government officials count the votes is much more akin the the PQ counting referendum votes.
    You also have to remember that if the majority of union members were actually against the strike and the union leaders rigged the election, not many union members would strike for very long. Many would return to work immediately. Strikes only work where there is great support for a strike. Union leaders know this. So, even from a practical standpoint, union leaders have much less of an incentive to ‘rig’ a strike vote than imagined (perhaps even less of an incentive than government officials if we are all being paranoid all of a sudden.)

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