Here’s a nice question for budding new labour law students. The Toronto Star is reporting today that CUPE is engaged in an
organizing campaign at Green For Life, the private sector garbage collection company that won the bid to collect my garbage in Toronto’s West End when the City privatized garbage collection recently.
The union will need to collect union cards on behalf of at least 40 percent of the workers in order to obtain a union certification vote. A similar attempt to organize Green for Life employees in Windsor did not succeed, but perhaps CUPE will have more luck persuading Toronto workers of the benefits of collective bargaining.
But that task could be made more difficult by comments made yesterday by Toronto Councillor Denzil Minnan-Wong. The Star story quotes Minnan-Wong as saying this when asked about the organizing campaign:
Coun. Minnan-Wong
Councillor Denzil Minnan-Wong: “If in seven or eight years we put the contract out for tender again, GFL would have to compete with other private contractors and the lowest bid would win,” he said. “If (Local) 416 represented their workers, I suspect they would price their members out of their jobs.”
Did he just suggest that if the workers decide to unionize, they will probably lose their jobs? That is certainly the clear inference he draws. I think that was a highly inappropriate comment by a public official, who really should just shut up about the affairs of private businesses and their employees. The question for labour law students is whether that comment is unlawful as well as stupid?
Threats of Job Loss and the Labour Relations Act
I think there is a very strong argument that if it was a Green for Life representative that made that comment, we’d be looking at a breach of the Labour Relations Act. Do you agree? Let’s look at the key sections.
Section 70 makes it unlawful for an employer, or person acting on behalf of an employer, to “interfere in the selection or formation” of a union. Section 72 prohibits the same actors from trying to discourage employees from supporting a union by using threats of dismissal or any other penalty. There are dozens of cases spanning decades in which the Labour Board has ruled that these sections are violated when an employer makes a link between the decision of employees to unionize and possible job loss. Just ask Walmart about these sections, which it violated by refusing to answer employee questions about whether the store would close if the workers’ unionized.
Councillor Minnan-Wong draws a clear line between a decision by Green for Life employees to unionize and the very real possibility this decision would lead to their job losses a few years from now. If the customer that provides the work can make the threats without these sections applying, then that is great news for employers like Green for Life, don’t you think? They receive the ‘benefit’ of the threat (employees afraid to support a union), but can simply say, “I didn’t make any threat”.
Can the OLRA provisions apply to a threat made by the principal customer that provides all of the work? Good question. For section 70 and 72 to apply, Minnan-Wong must be found to be ‘acting on behalf of” Green for Life. Do you think that argument would succeed?
How about Section 76? That section also prohibits any threats or coercion intended to discourage employees from supporting a union. But this section casts a wider net over the range of actors covered. Section 76 governs any ‘person’, not just employers and ‘persons acting on behalf of’ employers like Sections 70 and 72. I’m pretty sure Councillor Minnan-Wong is a “person”. Does that mean he can be found in breach of Section 76 by suggesting publicly that unionization by Green for Life employees will probably lead to a loss of the City’s business?
How could this play out?
If CUPE believes that comments made by a Councillor cast a chill over its organizing campaign, then it can file a complaint alleging a breach of Sections 70, 72, and/or 76 of the Labour Relations Act. A hearing would be held, and the Labour Board would need to decide: (1) if there was a breach of one of these sections, and (2) whether that breach destroyed the possibility of testing the wishes of the employees, who now feel that voting for the union would cause them to lose their job (Section 11)
If the Board decided that there was a breach that destroyed the potential to hold a fair vote that would be untainted by the threat, it could certify CUPE as the bargaining agent for Green for Life employees. That power appears in Section 11(2)(c), known as ‘remedial certification’. This was the order issued by the Labour Board in the Wal-Mart case noted earlier. The Board does not take kindly to threats that suggest exercising the fundamental right to unionize will cost employees their jobs.
Questions for Discussion
- Do you think Councillor Minnan-Wong’s comments violates the Labour Relations Act?
- Do you think the law should regulate the comments of people who control the flow of work to an employer, as well as the employer itself?
- If you were a Green for Life employee, would you be concerned by the Councillor’s comment?
- What do you think the Labour Board would/should do about a situation like this?