New Toronto Union Adopts "Do It Yourself" Model, By-Passing Union Certification Process

A union formed earlier in 2014 called the Toronto Harm Reductions Workers Union (THRWU) has adopted a strategy they call “do it yourself” unionism.
This means apparently by-passing the formal union certification and collective bargaining process in the Ontario Labour Relations Act and instead trying to bargain outside that model, asking employers to voluntarily recognize the union on behalf of its members only.  Here is how the THRWU explains its outlook:

In a rare move, the union has opted to forgo certification with the Ontario Labour Relations Board, opting instead for a ‘do-it yourself’ model of unionism. Rather than relying on government officials, lawyers or professional union staffers, THRWU members will advocate directly on their own behalf. It’s a strategy that fits broadly into a growing movement of ‘solidarity unionism’ that seeks to innovate strategies to make gains for workers in a context where traditional, Labour Board-certified unions are unable or unwilling to do so.

The THRWU is an affiliate of the Industrial Workers of the World (IWW), an organization with a long and interesting history in the North American labour movement.
Here is a short video announcing the THRWU campaign:

I have no information about how the THRWU campaign is going, though I have read that it represents over 50 workers in the harm reduction industry.  This week, a group of workers employed at the Central Toronto Community Health Centre and the South Riverdale CHC announced that they had joined THRWU.  The workers informed their employer that they had joined THRWU and they requested that the employer “recognize the THRWU as the legitimate organizational representative of Central Toronto Community Health Centres harm reduction workers”.  They also “demand(ed) that no worker be retaliated against for lawful union activity.”
The letter to the employer stated that THRWU has elected to by pass the “highly regulated and bureaucratic” OLRB certification process “in favour of a unionism that allows workers and management to discuss and negotiate directly and without interference by lawyers and professional union bureaucrats.”  The workers request a meeting with the employer “to discuss important matters of workplace equity and industry conditions”.
The scenario presented in this little story should be interesting to labour law students.  It raises a number of interesting legal questions.
Can THRWU Bargain on Behalf of Workers Already Covered by a Collective Agreement?
Firstly, my understanding is that some of the harm reduction workers who have joined THRWU are already unionized.  The UFCW represents them, and a collective agreement is in effect.  If that is the case, then we are dealing with a group of employees already covered by a collective agreement seeking a right to have another union speak for them in dealings with the employer. [The workers involved call THRWU a “union”.  Whether THRWU meets the definition of a “union” for the purposes of the OLRA is a question for the OLRB to decide, were an application involving THRWU to come before the OLRB.  Other affiliate branches of the IWW have been recognized as a union in the past. ]
Assume the  workers are already in a bargaining unit represented by the UFCW.  Now read Section 73 of the ORLA:

No employer… shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union… on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

Do you think that section prohibits the employer from meeting THRWU and the employees who are covered by the UFCW agreement to discuss “workplace equity and industry conditions”?  What if THRWU says that it is not attempting to bargain specific working conditions on behalf of employees (wages, benefits, etc), but rather is interesting in speaking to employers at a higher industry level, to address systemic industry level issues and how to improve them?  Would Section 73 apply to that scenario?
Interestingly, Tim Hudak and the Conservatives had proposed to amend Ontario’s labour laws to permit any bargaining unit employee to opt out of a collective agreement.  Were such a law in place, then any employees falling within the UFCW bargaining unit could have simply opted out of the agreement, joined THRWU, and then approached the employer to “discuss” working conditions.  Of course, the Tory law presumably would not have required the employer to discuss or even acknowledge those employees or their union.  The labour movement mobilized to resist Hudak and his labour policies.
An Application of Graduated Freedom of Association?
Secondly, in relation to THRWU members who are not covered by a collective agreement, other interesting legal issues arise.   If the employer is private sector, so the Charter does not apply directly, there is no legal machinery available to the THRWU members to force the employer to meet to discuss working conditions.   The employer has no legal duty to recognize or talk to a non-certified minority union.  The union and the workers could attempt other methods to try and get the employer to the table.  But the legal ‘duty to bargain’ would not apply.
I argued in my paper Graduated Freedom of Association that the law should be reformed to create just that obligation.   Majority unions would still have the right to certification and to access the full machinery of the OLRA, including a protected right to strike as exists now.  However, a secondary model would be grafted onto to that majority union model that grants the minimal collective bargaining rights that the Supreme Court has recognized are guaranteed by the Charter to minority unions or worker organizations that do not wish to use the full certification model.  This secondary model would protect the right to non-reprisals for associational activity, a right of employees to meet with their employer through their chosen association, and a corresponding obligation on the employer to engage in “meaningful dialogue” with the employee association.  These are the rights that the SCC recognized in the Fraser case.  I argue that employee associations could put this ‘thin’ version of freedom of association to some valuable use if they were able to gain the support of a decent sized percentage of workers in an industry or of a single employer.  This is the strategy that IWW/THRWU seem to have in mind.
An interesting question is whether the employers here (if they are public institutions) are required by the Charter to meet with THRWU and engage in meaningful dialogue right now, without any legal reform required.  That seems to follow from Fraser and earlier cases, such as Delisle, where the SCC said that public sector employees can bring direct Charter challenges against their employers who violate Section 2(d) ‘freedom of association’ rights and freedoms.  A similar issue is percolating right now involving Legal Aid Lawyers, who are excluded from the OLRA, but have joined a union and requested “meaningful dialogue” with Legal Aid Ontario.  LAO has refused, arguing that it has no legal obligation to recognize a lawyer’s union since then lawyers are excluded from collective bargaining legislation.  Whether a government employer can ignore any union that represents its employees that has not gone through the formal certification process in labour legislation is a question that will need to be addressed.
Of course, employee associations may not seek to rely on a “legal” obligation on employers to meet and bargain with them.  Instead, they may seek to use other means of persuasion, ranging  from attempts at building a cooperative relationship with employers right through to various forms of direct action to get the employer’s attention, as well as that of the community.
Questions for Discussion
1.   What do you think of THRWU’s stated strategy of by-passing the formal legal union certification model of majority unionism in favour of attempting to develop a “voluntary”, members only bargaining relationship with employers ?
2.   Our laws only protect a right to strike without being fired if the workers are represented by a majority union recognized under the OLRA.  Therefore, THRWU workers will likely not have access to a legislated right to strike protection.  Do you think that the union can achieve any gains for its members without that right?
3.   What do you think about the idea of a Graduated Freedom of Association model that recognizes both a ‘thick’ version of unionism (the current model of majority trade unionism) alongside a ‘thin’ version that grants employee associations a protected right to meet and engage in “meaningful dialogue” with employers, without a full-fledged right to strike?