By Heather Hettiarachchi, Lawyer.
When an employee becomes a union official, this changes her status significantly and places her in the situation of having to discharge two very different and contradictory roles. On the one hand, she must continue to abide by the rules and policies that govern the workplace in her capacity as employee. On the other, she becomes an integral part of the collective bargaining regime when acting as a union official. In this latter capacity, she must police the collective agreement diligently and advocate vigorously on behalf of the rights of coworkers.
While most union officials perform these dual roles admirably, sometimes the line between robust advocacy and insubordination gets crossed. When this happens, employers can be unsure how to respond.
Such uncertainty is not surprising. Originally, union officials enjoyed “blanket protection”, as efforts by employers to discipline an employee acting in his capacity as union official were unsuccessful. Labour arbitrators took the position that union officials could never be disciplined because, otherwise, they would not be able to carry out their official duties effectively.
This extreme approach was ultimately tempered, however, as arbitrators recognized that an employer has the fundamental right to discipline union officials for “just and reasonable cause”.
In Richmond Lions Long Term Care Society and Hospital Employees’ Union, the BC Labour Relations Board recognized the need to place some limits on the concept of shop steward immunity from discipline, in order to preserve the employment relationship between the employer and the union official. In recognizing the employer’s fundamental right to discipline a union official for just and reasonable cause, Vice-Chair Bruce noted that
the boundaries of steward immunity must be drawn in a manner that balances the need to preserve the viability of the employment relationship with the legitimate right of the union to carry out its responsibilities without undue interference from the employer.
This balance is achieved by requiring proof of conduct that is both beyond the bounds of lawful union activity and detrimental to the interests of the employer.
Implications for Employers
When faced with objectionable conduct by union officials, employers should keep in mind that union officials are entitled to some leeway to engage in conduct that would normally attract discipline to permit them to discharge their responsibilities effectively in the context of an adversarial collective bargaining system. The question to be asked in each situation is whether the conduct has crossed the bounds of lawful union activity because immunity does not extend to conduct that falls outside the normal scope or range of union responsibilities.
While each case turns on its own facts, the following are some examples of the types of conduct by union officials that may attract discipline:
- violent or abusive behaviour
- rude, aggressive, conduct that threatens or intimidates another individual
- making malicious statements, i.e., statements that are knowingly or recklessly false
- mounting a campaign to deliberately harass or publicly denounce or attack management
- participating in an illegal strike, or encouraging employees to participate in an illegal strike
- harassment of employees or management staff