By David Doorey, Professor of Labour Law, York University
Last week the Ontario Minister of Labour confronted CUPE Ontario leader Fred Hahn in what I presume was a staged ambush, since someone was there ready to film the entire interaction, which was then immediately posted on the Minister’s Twitter account.
Today, I met with @FredHahnCUPE for the first time to tell him to stop being anti-Semitic and focus on his workers – all of them! pic.twitter.com/5ArtwhJOzz
— David Piccini (@DavidPiccini) August 20, 2024
The exchange had to do with controversial statements made by Hahn on social media that have been interpreted by many people, including obviously MOL David Piccini, as anti-Semitic. Hahn claims that he is criticizing the State of Israel and not Jews. I will let others judge that debate. What I’m interested in here–this is a ‘law of work’ blog after all–is whether an elected official is legally permitted to interject himself into debates over who should lead a public sector union and what position the union leadership should take on controversial issues.
There is no question that a Minister can criticize comments made by union leaders. That is not the labour law question I’m getting at. Had Piccini just said “I find your statements repulsive and you should apologize”, that would be perfectly fine. But Piccini didn’t stop at that. He actively challenged Hahn’s right to lead CUPE Ontario, asserted that Hahn was not properly representing his members, and he took a clear and strong position that Hahn should not be the leader of the union. In a later Tweet, Piccini joined with Premier Doug Ford in calling for Hahn to resign.
Now, remember that Hahn was elected as a CUPE leader by the membership. No union leader has complete support of the membership, ever, so there will always been a segment of the membership who do not support or who even despise their elected leader. The same is true of democracies everywhere, by the way. Does Justin Trudeau have the support of all, or even a majority of Canadians? So the fact that there is a segment, maybe even a large segment, of CUPE Ontario members who do not support Hahn is not unusual. If that segment is large enough, they can elect new leadership in the next election. That’s how democracies work.
However, the labour law question is whether government officials can actively advocate on behalf of the CUPE members who are in the anti-Hahn camp in order to help oust a union leader the government has long despised.
In the case of public sector unions like CUPE, the government is the employer. There is absolutely no doubt that the Conservative government–the employer of Hahn’s CUPE members–despises Fred Hahn and did so long before this current incident related to the war in Gaza. Hahn has been a constant pain in the ass for the government on collective bargaining issues. He was front and centre in the fight against #Bill28, the Conservative’s failed attempt to use the ‘notwithstanding clause’ to trample CUPE members’ constitutional rights and has fought against other Conservative initiatives that he believed would not benefit CUPE members. A union leader that is despised by the employer may actually be a very effective union leader.
So, there is no doubt that the Conservatives would LOVE to see Hahn gone, and this latest incident presented an opportunity for the Conservatives to actively attempt to push him out. And that may happen yet. Yesterday CUPE National asks Hahn to resign from its National Board. If Hahn is pushed off the National Board, it may only be a matter of time before he is forced to resign as CUPE Ontario leader. Piccini, Doug Ford, and the rest of the Conservatives would be celebrating if that happens and they get their way.
No Interference with the Administration of a Union or Representation of Employees by a Union
Here’s the legal issue that interests me. The Labour Relations Act very clearly states that employers and “persons acting on behalf of employers” shall not “interfere with the administration of a trade union or the representation of employees by a trade union.” The purpose of this law is to ensure that employers (and persons acting on their behalf) keep their noses entirely out of internal union matters, including questions relating to who leads the union and how the leadership chooses to represent the members. The question arises, therefore, whether government officials can actively campaign for the replacement of a public sector labour leader who they clearly despise?
Minister Piccini, in his staged and filmed confrontation with Hahn, accused Hahn of “not representing his members”. He then stated that his door would remain open to speak directly to CUPE members and he opined that CUPE members “deserve better than” Hahn. As noted above, he then also just came right out and said that Hahn must resign.
I don’t think that there can be any serious debate that Piccini is captured by the language of “the employer or person acting on behalf of an employer” in this scenario. He represents the government that employs the CUPE members and that bargains with CUPE. Moreover, he has made it abundantly clear that he (and the government/employer) would prefer that CUPE have a different leader who represents the members differently than Hahn. Is that not “interference in the representation of employees” by Hahn and CUPE?
There’s no doubt that some CUPE members despise Hahn and/or what he said about Israel. But there is equally no doubt that many CUPE members agree with what he said and accept his explanation that he was criticizing Israel’s war in Gaza and not Jewish people. I have no idea what percentage of the CUPE membership is in each camp, and neither do you or Minister Piccini. It’s entirely possible that the majority of CUPE members support Hahn’s position. We just don’t know.
You can decide for yourself whether you are for or against Hahn, but our views on this are beside the point in regards to this labour law question. Unions deal with divisions like this everyday and they need to make difficult decisions about what positions to take on controversial issues that will without question divide their membership and the public. The membership can judge their leadership’s decisions with their feet in union elections or in duty of fair representation (or human rights) complaints. However, the law states that employers cannot insert themselves into these internal union deliberations or into debates about who should lead the union.
Perhaps the point is easier to see if we pull back from the highly contentious and controversial context of comments about the war. Imagine that Piccini confronted Hahn not about his comments on Israel and Gaza, but on a position Hahn took on a collective bargaining issue that Piccini thought was outrageous and harmful to some CUPE’s members. Could Piccini openly argue that Hahn is not properly representing his members and that he must resign because of the position he has taken? In that scenario, would the prohibition on employers (and persons acting on their behalf) interfering in the union’s representation of its member not be engaged? Or consider this: What if Piccini was just a private sector employer who called his employees into a meeting and told them that their union leader is a bad person who doesn’t properly represent their interests and that the union leader needs to resign. Would that violate Section 70 of the OLRA?
The point I’m raising is that the law is intended to prevent employers from taking sides on questions of internal union politics and representation. The question to ponder is whether elected government officials are immune from that law such that they are entirely free to actively campaign for the removal of elected union leaders they don’t like. For my part, I would be surprised, and concerned, if the law is interpreted in that way, since it would raise real questions about whether public sector unions are capable of acting independently of government employers.
DD
[Note that I haven’t discussed in this post the related debate about whether a government official openly campaigning for the ouster of a union official for comments he made engages freedom of expression and association concerns under the Charter, but the ILO is very clear that freedom of association demands governments to stay out of internal union matters.]