Real Pleadings: Has Uber Created a New Service to Avoid Unionization?

Thanks for labour lawyers Brendan McCutchen and Michael Wright of the law firm Wright Henry in Toronto for providing the pleadings in an interesting new unfair labour practice complaint filed last week at the Ontario Labour Relations Board (OLRB) by the United Food and Commercial Workers (UFCW).

Read the pleadings here.

Background

In January 2020, UFCW applied to represent Uber Black and Uber Black SUV drivers registered or licenced as limousine drivers by the City to Toronto to drive in Toronto and Mississauga.  Ballots were cast and sealed and we are awaiting the OLRB’s decision on whether the drivers are “employees” for the purposes of the OLRA.  There is good reason to believe that the OLRB will decide that Uber drivers are “employees” after the Board ruled last February that Foodora couriers are employees. However the facts are not identical, so we will see. If the OLRB rules that the Uber Black drivers are employees, then the ballots will be counted to determine if a majority of the drivers voted in favour of the UFCW.

The bargaining unit recognized by the Labour Board is as follows:

all Uber Black and Uber Black SUV drivers registered/licensed as limousine drivers by the City of Toronto engaged by the Responding Party d.b.a. Uber Black and Uber Black SUV as direct employees and/or dependent contractors in and out of the City of Toronto and the City of Mississauga, Ontario, including those operating in and out of Toronto Pearson International Airport, save and except any managers, those above the rank of manager, office staff, dispatch staff, marketing and/or sales staff, technical and/or information technology staff, human resources staff, reception and/or administrative staff, and accounting staff.

NOTE: The bargaining unit proposed by the Applicant Union includes Uber Black and Uber Black SUV drivers exclusively. The bargaining unit does not include Uber drivers who are not Uber Black or Uber Black SUV.

As we wait for the Labour Board’s decision on the employee status issue, Uber has quietly introduced a new service that it called Uber “Premier” and “Premier SUV” which looks almost identical to Uber Black and Uber Black SUV except that the drivers are not required to have limousine licences.  The ULP complaint alleges that Uber is now phasing out Uber Black in favour of this new service, Uber Premier.

Uber is promoting Uber Premier ahead of Uber Black in the hopes of diverting passengers away from Uber Black.  You can see this if you go to the Uber Toronto website. If you scroll to “choose a ride” you see “Premier” not Uber Black.  You have search harder to find Uber Black, which can still be found on the second page of Premium rides. The cars depicted for Premier and Black are identical.  UFCW argues that this is a deliberate strategy designed to eventually replace Uber Black with Uber Premier.

The complaint alleges that Uber has violated Sections 70, 72, 76 and 86 of the Labour Relations Act.

For Labour Law students, a couple of questions to think about after you read the Schedule A (the part of the complaint that sets out the alleged facts).

1. Explain why Uber might benefit by substituting the new Uber Premier service for Uber Black?
2.  What does UFCW need to provide to win its unfair labour practice complaint?
3. If you were representing Uber, what defence might you argue to this complaint?
4. Lastly, UFCW argues that Uber has violated Section 86, which is the “statutory freeze” provision. Explain the basis for this allegation.

David Doorey, “Real Pleadings: Has Uber Created a New Service to Avoid Unionization?” Canadian Law of Work Forum (February 15 2021): https://lawofwork.ca/uberblackulp/