Written by David Doorey, York University
Back in January of this year, I posted a story about a surprise deal negotiated by Uber and UFCW that provided UFCW with a package of rights to represent Uber drivers in various disputes and dealings with Uber. Uber also agreed to send out messages to drivers sharing the ‘good news’ that UFCW now represents them. In that earlier post, I explained how a deal like this sets up a potential unfair labour practice complaint against Uber to be filed by any other union that is not given the same representational rights. In particular, CUPW (through its Gig Workers United) was actively organizing Uber drivers when news of the Uber-UFCW deal dropped.
I wrote then that, “CUPW or any other union that is organizing Uber drivers in Canada might want to demand that Uber also distribute an announcement promoting that union as well. Uber is in dangerous unfair labour practice territory if it claims that it will only communicate with drivers about the UFCW and no other unions.” This week, CUPW filed that unfair labour practice complaint. As I understand the facts, as reported in the Toronto Star, CUPW did in fact request access to the benefits given UFCW in the deal, and that request was denied by Uber.
This complaint sets up the potential for some very interesting litigation, provided it doesn’t settle beforehand, which is a real possibility given the stakes involved.
I haven’t seen the pleadings yet. However, it appears that CUPW is alleging a breach of Section 70 of the Labour Relations Act, which as I explained in my earlier post, prohibits “employers” from “participating or interfering with the formation, selection, and administration” of a union or from providing “financial or other support” to a union. Therefore, the new CUPW complaint puts before the OLRB some important legal questions, including: (1) is Uber an ’employer’ of Uber drivers; (2) did the secretly negotiated deal amount to interference with the formation and selection of a union by Uber drivers given that both UFCW and CUPW were actively organizing drivers at the time UFCW was given special access to the drivers; and (3) does the deal amount to Uber providing UFCW with “financial or other support” contrary to s. 70.
So far, Uber has managed to avoid a finding that it is the employer of Uber drivers. The issue was before the OLRB in a pending application for certification by Uber Black drivers, but that application disappeared after the Uber-UFCW deal was announced. There is a case before the OLRB (remember Heller v. Uber?) that could decide whether Uber is an ’employer’ under the Employment Standards Act, which arguably has a narrower scope of ’employer’ than the OLRA. However, because the OLRA expressly defines ’employee’ as including ‘dependent contractors’, my belief is that Uber will be found to be the employer of the drivers once the OLRB gets to decide that issue. The Board’s finding in the recent Foodora case that the gig company employed its couriers does not bode well for Uber’s argument that it is not an ’employer’.
Therefore, while Uber could object to CUPW’s unfair labour practice complaint by arguing that Section 70 does not apply because it is not an ’employer’, that is a risky gamble given Uber’s well-known and high stakes claim that it employs no drivers. By raising this objection, Uber would be putting the issue of its employer status squarely before the OLRB. UFCW is not named in the complaint, but it would be interesting to see if it will attempt to intervene and, if so, what position it would take on this issue of employer status. One would hope that UFCW would side with CUPW on this issue of employer status or at least not side with Uber, but we’ll see.
On the question of whether the Uber-UFCW deal violates section 70’s prohibition on an employer providing support to a single union when multiple unions are actively organizing workers, I think Uber faces an uphill battle. As I have explained in a couple of papers I wrote years ago about the law of ‘neutrality agreements’ (see here and here), in the United States, the NLRB has ruled that it is unlawful for an employer to give preferential representational rights to only one union if another union requests the same rights. Section 70 deals with the same problem and is designed to prevent an employer from stepping into an ongoing organizing campaign to provide assistance to a particular union over other union(s). While there is room for nuance here, my prediction (not that anyone cares) based on the facts as I understand them today is that the OLRB would rule that the Uber-UFCW provides such substantial and obvious support to UFCW that excluding ‘competing unions’ from the same package of entitlements would amount to unlawful interference in the formation and selection of a union by workers. Do you have a different take?
An interesting question though is what is the remedy? Presumably CUPW is asking for an order requiring Uber to provide equal treatment: whatever Uber is giving UFCW it must also give CUPW. That could mean, for example, that messages must be sent out to Uber drivers over the App telling workers that they have the option to have CUPW represent them in the various types of proceedings mentioned in the Uber-UFCW deal. CUPW would be entitled to a place at the table in the consultations mentioned in the deal. And so forth. There would no doubt be some challenges in terms of implementing such an order in practice, but this is the sort of thing you’d expect from an order in a successful s. 70 interference case.
There are a variety of other issues lurking around this case. What if Uber argues that CUPW could have had the same deal as UFCW if it would have supported Uber’s lobbying efforts for a watered-down legal model that did not treat Uber drivers as full employees? Is this a valid defence to a s. 70 complaint: that the company offered the same package to any union that would accept the quid pro quo that apparently UFCW accepted of siding with Uber in its legislative lobbying efforts (see this Globe and Mail story describing how UFCW worked with Uber in lobbying the government to adopt Uber’s preferred legislative model)? Is CUPW required as a condition of benefiting from the deal to accept the full terms of the deal (whatever they are, seeing that the deal is not publicly available)?
What if Uber responds to the complaint by simply reneging on the deal with UFCW? Could UFCW do anything about that? Is the Uber-UFCW even an enforceable contract?
If UFCW and CUPW are both given preferential representation rights under the ‘deal’, are they effectively banned from later applying to represent Uber drivers in a formal application for certification because of Section 15 of the OLRA, which prohibits the certification of any union that has received “employer support”? In other words, does participation in an informal representation scheme like that described in the Uber-UFCW deal effectively block access to the formal union certification process set out in the LRA?
I have some thoughts on the answers to these questions, but at this point, it’s all hypothetical. Until we know more, we will need to just wait and watch how all of this unfolds. I’ll end with one final point though. When it comes to organizing ‘gig’ workers (and many other historically under-represented workers too), unions are fighting against the tide in battling one another to try and organize workers under the traditional Wagner model. It will never work. In a perfect world, UFCW and CUPW and any other union that has devoted resources to organizing and representing Uber drivers would be working together as a coalition to bring real collective bargaining and voice to the industry. Our system encourages union competition to represent workers rather than cooperation and sharing of resources to build a formidable counter to corporate power. We are seeing the results of that model here. This whole battle between CUPW, UFCW, and Uber detracts from what should be the ultimate mission of the Canadian labour movement, which is to build worker power from the ground up and to provide effective representation for workers across all sectors. No one benefits from Uber’s success at pitting unions against each other in a battle for scraps on the organizing battlefront, except perhaps Uber.
David Doorey, “CUPW’s Unfair Labour Practice Complaint Against Uber Raises All Sorts of Issues” Law of Work (September 16, 2022): https://lawofwork.ca/uberulp/