There’s a curious little story circulating on the web involving labour law and football players.
This story explains that Cincinnati Bengals running back Cedric Benson has filed what we call a duty of fair 
representation complaint against the NFL Players Association. His complaint is that the Union allegedly signed an agreement with the NFL (the employer) that prohibited the employer from disciplining some 25 NFL players for misconduct taking place during the recent NFL lockout, but allowed 8 other “repeat offenders”, including Benson, to be disciplined. The result is that the NFL suspended Benson for 3 games “for two misdemeanor assault cases that landed him in jail for five days.” Nice.
There’s a few interesting legal issues here. Let’s assume Ontario law applied.
First, can an employer discipline an employee for misconduct taking place during a strike or lockout? Yes. Section 1(2) of the Labour Relations Act tells us that a worker does not cease to be an employee during a strike or lockout. An employee is not free to engage in any sort of unlawful conduct they like during a strike. The key question that arises is whether the discipline was imposed to punish an employee for exercising union-related activities that the legislation protects. In other words, was the employer motivated by “anti-union animus”, or motive, in its decision to discipline the employee? If so, the employer would be in violation of the Act.
An example is considered in the OLRB decision Toromont Cat, where the Labour Board ruled that the employer did not violate the Act when it terminated a union member for making a fake bomb threat against the workplace. The Board ruled:
Toromont chose to terminate the employment of a person who brought whatever business Toromont was conducting that day to a halt. Mr. Valerio frightened employees, customers and their families. He caused a highway to be closed and the police and their bomb squad to attend. Mr. Valerio’s employment was terminated. In doing so, Toromont did not violate section 70 of the Act.
Would a union violate its duty to a member if it signed an agreement protecting some, but not all workers from discipline for conduct during a strike or lockout?
I’d say in answer to that question: maybe.
The key provision in Ontario is Section 74, which says this:
A trade union…, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit…
Certainly, if a union makes a side deal with the employer that sells out a few workers while protecting others and there is no reasonable explanation for the different treatment, the union could be in trouble. However, if the union can give some explanation for the agreement that is not “arbitrary, discriminatory, or in bad faith”, then the union is likely fine. This usually means that the union need only show that it based its decision on some sensible grounds.
Here, the Union’s explanation looks like it may be:
(1) the workers (like Benson) excluded from the “protection from discipline list” were “repeat offenders”. The employer was fighting hard to preserve a right to discipline the repeat offenders, but was prepared to allow the first time offenders off in order to get a deal in the labour dispute; and
(2) the Union did not waive its right to file a grievance against any discipline imposed.
If it was Ontario law applying, I suspect this explanation would be accepted by the Labour Board if true. It is a rationale explanation not related to discrimination or bad faith. A union is entitled to sometimes make difficult decisions in order to protect the greater good, even if it pissing off one union member.
What do you think about this? Should a union be able to enter into a deal like the one discussed here, that protects some but not all bargaining unit employees form discipline?