By David Doorey, York University
Nearly 20 years ago, I published an article about an emerging strategy being deployed by American unions to organize workers. Known as “neutrality agreements”, the strategy involved leveraging various power levers to obtain private agreement from employers to a privately bargained framework that would govern union organizing, voluntary recognition, and sometimes collective bargaining if a majority of workers supported the union as its representative in collective bargaining. Neutrality agreements are examples of private law usurping and also operating alongside public law.
Typical provisions found in neutrality agreements include requirements for employers to “remain neutral” and not campaign against unionization, to voluntarily recognize the union if a majority of employees vote to unionize in a supervised vote or through a check of union membership cards, to allow the union to speak to employees at the workplace or to provide the union with contact information, and sometimes even for the employer to express support for collective bargaining.
Neutrality agreements grew in popularity in the U.S. as unions came to realize in the 1980s that the statutory model that regulates unionization there had become virtually impossible to navigate. When I began looking at the subject in about 2000, there were few Canadian examples of neutrality agreements. At that time I was a practicing lawyer and I was asked by a union client to draft a neutrality agreement. I argued in my article that Canadian labour law would continue to devolve towards the American version of the Wagner model in the coming years, such as by replacing card-check certification with mandatory ballots and other changes that would make obtaining certification under our statutory model more difficult.
My thesis was that as this happened and union density in the private sector fell, Canadian unions would similarly turn to private models of union organizing and neutrality agreements would grow in popularity. I concluded that “we can anticipate greater interest in neutrality agreements as we move forward.” My paper was eventually published in 2006 and was entitled, “Neutrality Agreements: Bargaining for Representation Rights in the Shadow of the State” and you can read it here.
American unions had been surprisingly successful in the 1990s at organizing workers under neutrality agreements. A 2001 study had shown that unions using neutrality agreements were successful at obtaining voluntary recognition 78% of time, a rate substantially higher than organizing campaigns taking place under the NLRA unioncertification process. Unions have continued to use neutrality agreements in the U.S. and President-elect Biden has floated the idea that businesses receiving federal contracts would be required to have a neutrality agreements in place in which they agree not to resist unionization.
There are a number of interesting legal issues that arise in relation to the interaction of statutory labour law and private neutrality agreements that I discussed in my paper. In the U.S., anti-union forces have long argued—and still argue—that it is illegal for employers to sign neutrality agreements, demonstrating the sheer lunacy of labor law in that country. Imagine a legal model intended to facilitate access to collective bargaining that makes it unlawful for an employer to not try to impede their employees’ attempts to establish majority support for collective bargaining! Many of the legal concerns relating to neutrality agreements in the U.S. do not arise in Canada because of differences in our legal models. However, there are some legal concerns and I discuss some of these in my paper.
In the intervening years, there have been some interesting developments in the use of neutrality agreements in Ontario. One controversial and not particularly successful neutrality agreement involved a deal reached between the Canadian Auto Workers and Magna known as the “Framework of Fairness”. Under the agreement, Magna agreed to recognize the CAW if it proved majority support through membership cards and Magna was required to express support for the CAW and permit organizers to address workers at the factories. In exchange, the CAW agreed to never strike and to accept some pre-existing human resources processes at Magna, among other conditions. The Framework of Fairness fueled a bitter feud within the CAW and the labour movement more broadly, as captured in this 2009 post on this blog by a retired CAW staff representative.
However, more recently there are examples of successful use of neutrality agreements, particularly involving employees who are excluded from the statutory collective bargaining entirely. A few provinces, including Ontario, still exclude practicing lawyers and other professionals from their labour relations legislation. This is a curious holdover from the 1940s when virtually no lawyers were employees (they were self-employed practitioners). Today, most lawyers are employees and the exclusion of lawyers is conspicuous in light of recent Supreme Court of Canada jurisprudence recognizing a right of employees to collective bargaining and to strike under Section 2(d) of the Charter. Employees who are excluded from all protective labour relations legislation, like practicing lawyers, can be terminated for associational activities and have no lawful means to force their employers to bargain collectively.
Unions in Ontario have used the Charter vulnerability of the professional exclusions to harness private voluntary recognitions agreements that include sophisticated bargaining frameworks that mimic and incorporate the statutory collective bargaining model. By threatening to launch a Charter challenge against the statutory exclusions, these unions have persuaded employers to sign these neutrality agreements.
This tactic worked for the Society of Energy Professionals after a years long campaign to win bargaining rights for lawyers employed by Legal Aid Ontario. Only after the Society launched a Charter challenge in 2015 against the lawyer exclusion in the LRA did LAO finally agree to a Framework Agreement that included an agreement to voluntarily recognize the union if a majority of employees voted for the union in a vote conducted by the Labour Relations Board. The LAO lawyers voted overwhelmingly for the union and the parties then commenced collective bargaining for a collective agreement and a process for resolving future bargaining impasses. In a 2017 interest arbitration hearing, the employer argued that bargaining disputes should be resolved by the usual strike/lockout provisions in the LRA, but Arbitrator Kaplan sided with the Society in ordering that bargaining disputes be resolved through interest arbitration. All of this took place outside of the LRA, since the employees involved are excluded entirely from that legislation.
OPSEU similarly has been busy organizing bargaining units comprised of employees excluded from the LRA. For example, OPSEU has successfully organized several workplaces in units that include practicing lawyers. When employers argued that they can simply ignore the union’s attempts to represent the lawyers, OPSEU instructed its lawyers to launch a Charter challenge against the professional exclusion in the legislation. In most instances, the employers thereafter agreed to a voluntary recognition framework agreement. Those agreements required the employer to recognize the union if a majority of employees voted for the union in an extra-statutory vote supervised by the OLRB.
Therefore, the government’s labour tribunal plays a crucial role in the implementation of a private neutrality agreement bargained outside of, but in the shadow of the statute. A particularly interesting aspect of these framework agreements is that they essentially incorporate a public statute (the LRA) into a private extra-statutory framework. For example, OPSEU’s agreements with several employers incorporate the statutory duty to bargain, first contract arbitration, unfair labour practice provisions, and voluntary interest arbitration provisions. All of these provisions can be enforced through binding private arbitration.
Therefore, I think I can claim that my prediction that we would see more neutrality agreements come to Canada has proven at least partially correct. What I did not predict was that the threat of Charter litigation would prove to be an important source of leverage by unions to win these agreements. That is not surprising given that when I wrote the paper over 15 years ago, there wasn’t a Charter recognized right to collective bargaining or to strike. How times have changed.
David Doorey, “Reflecting on the Use of Neutrality Agreements in Canadian Labour Relations” Canadian Law of Work Forum (November 27 2020): https://lawofwork.ca/?p=13100
