Imagine this:
You are a non-union employee of a huge employer whose unionized workers go out on a long (and stinky) strike. Your employer then orders you to do some ofthe tasks usually done by the striking workers, in addition to your own job. You get no extra compensation for that, beyond overtime pay if you are required to work OT to get all this done. The unionized workers then win a decent wage increase and other benefits when the strike is settled. But you–the non-union workers–get a wage freeze, because the employer announces there is no money left for you! Later, the employer announces that in fact there is more money! But you aren’t getting any of it.
Would that piss you off? Would it make you wonder if maybe you’d have done somewhat better if you too had a union to bargain for you? This is the background to the ongoing campaign by the 
Society of Energy Professionals (SEP) and a group of City of Toronto workers to organize the non-union, professional and managerial staff of the City. (See this National Post story discussing the employees’ anger at their treatment by the City)
Organizing Managerial Employees?
There are some interesting aspects to this campaign. One is that many of the workers involved are ‘managerial’. So if the SEP were to apply under the Labour Relations Act, there would no doubt be a lot of the workers who would be challenged as being excluded from the right to join a union under the Act (Section 1(3)(b) says that a person is not an ’employee’ if they exercise managerial functions, and only ’employees’ are covered by the protections in the LRA). The Labour Board would then have to sort out which workers exercise managerial functions and which really don’t.
Of course, the very fact that the LRA excludes all managerial employees may itself be challenged under the Charter. It is very questionable in the post-B.C. Health Services era whether a mass exclusion of managerial employees is permitted under Section 2(d) of the Charter. Recently, the ILO’s Freedom of Association Committee ruled that Quebec had violated international law (and Convention 87, in particular) by excluding managerial workers from protections under the Quebec’s main labour legislation. The Supreme Court of Canada said in Health Services that the Canadian Charter requires a least as much protection of workers’ right to unionize as does Convention 87. So, maybe it is time to challenge Section 1(3)(b) in any event. This issue is tied up with the issues raised in the Fraser case that is currently before the Supreme Court, which involved the exclusion of agricultural workers from the LRA.
The Employee Association’s Campaign Against Unions
The other interesting aspect of this campaign is that the workers involved are already ‘represented’ by an employee association called the City of Toronto Administrative, Professional, Supervisory Association, Inc. This is not a union, but it assesses a fee and provides some services to the workers. The City dialogues with COTAPSA on some issues, but it is not legally required to do so under the labour laws of Ontario. There is no grievance procedure and no system of collective bargaining in place between the association and the City. That is why the employer can unilaterally freeze wages whenever it likes. The employees who are members of COTAPSA are governed by individual employment contracts and the common law, not the collective agreement laws and rules that govern the unionized staff.
What’s interesting about this campaign is that COTAPSA is playing the role usually played by employers.
It is distributing literature condemning unions as money-grabbing goons just trying to ‘line their pockets’! In fact, COTAPSA’s literature looks pretty much like the boiler plate employer letters we see all the time during organizing campaigns, which are written by management side labour lawyers. I wonder if COTAPSA has hired one of those firms?
Let’s review some of COTAPSA’s anti-union claims, just for fun:
1. “Unionized employees are not permitted to negotiate terms and conditions of employment on an individual basis. The Union does that collectively.”
That’s true, and it is really the point of unionizing. If employees believe they are doing well by ‘bargaining’ their own individual contracts, then presumably they would have no interest in joining a union.
2. “If you are in a union, you must participate if they go on strike. During that strike, you will not be paid and will lose significant amounts of money.”
Leaving aside the point that strikes are pretty rare, and that they only happen if a good majority of the workers elect to strike, that statement is false. You cannot be required to strike, even if the union that represents you goes on strike. Section 80 guarantees a right of workers to continue to work during a strike, provided there is work to be done. In fact, lots of unionized city workers continued to work during the strike. It’s true that you have to cross a picket line, which will be unpleasant. It’s also true that union “members” may be fined for crossing a picket line if the union’s constitution allows for that. But a worker can avoid that by not joining the union, and lately courts have shown some reluctance to enforce those fines in any event.
3. “In a union, individual employees do not have a right to refer a grievance to arbitration. Even if you feel you were wronged, you must depend on the union to raise the case on your behalf.”
That one may be true. It depends on what the collective agreement says. Most agreements do say that only the union can decide which grievances go to arbitration–which makes sense, since the union has to pay the costs of arbitration and has to be concerned about all the bargaining unit employees’ interests. No one benefits from allowing employees to go to arbitration with stupid grievances, so employers are usually quite happy to have the union act as gatekeeper. The LRA imposes a duty on unions to exercise that power without discrimination, bad faith, or arbitrariness (see section 74). But, if the workers in any particular bargaining unit want to be able to take any grievance to arbitration, then they could try to get the union to bargain that right into the agreement.
Of course, the City workers involved in this campaign presently have no right to even file a grievance, let alone bring the grievance to arbitration. Those workers would need to sue their employer in court if the employer breaches the employment contract. I doubt that COTAPSA funds individual lawsuits by the workers for breach of contract by the City, whereas unions would usually proceed to arbitration with a meritorious grievance. That is why part of the cost of union dues should really be understood as a litigation insurance: unions do tend to litigate grievances with merit with no cost to the employee, whereas nonunion employees must hire lawyers and use the very expensive private litigation system.
4. “The seniority system typically in place in a union only benefits the most longest serving employees.”
Again, this depends on what the union and the employer agree to. If the employees in a bargaining unit strongly believe that promotions, etc., should be based purely on merit, they could insist that the union bargain that language into the collective agreement. There is no law requiring seniority based systems. Of course, under the common law model that currently governs these workers, the employer can confer benefits on employees according to whatever criteria it likes, or no criteria at all (subject only to some limited statutory limitations, like those in human rights codes or some specific term in an employment contract). For example, consider whether the City could promote a nonunion employee on the basis that it ‘likes’ that person more than another, more qualified worker. One of the reasons people join unions is to inject some sort of objectivity and transparency into the management systems.
5. “You will have a large increase in dues.”
Unions don’t usually hide what their dues are, although employers (and here an employee association) often present the dues issue as some big, dark secret wrapped in conspiracy. Here, the SEP says its dues will amount to approximately $832 per year, whereas the workers now pay COTAPSA $260 per year. The dues are what they are, and they are tax-deductible. The employees have to decide whether they think the benefits outweigh the costs. It wouldn’t take much of a wage increase I’d presume to cover off that amount for these workers, and statistics do show that unionized workers tend to earn more than nonunion workers. Certainly, one trip to arbitration would quickly rack up thousands of dollars in expenses that the employee would not pay any more for. But if the SEP can’t persuade the workers that their services are worth the amount of dues, then the campaign will fail.
So, if you were one of these workers at the City of Toronto, would you be joining the union? Why or why not?