Union claims conflict in taking on member's case
Tuesday, February 9, 1999
This case-study feature provides expert advice on management and workplace issues. Examples are hypothetical or names have been changed.
Carolyn was hired to coach a university sports program. After several years, the program was dumped for what Carolyn thought were spurious reasons.
During her time at the university, a union was certified for the staff but it took years to negotiate a contract. In fact, it was not signed until after Carolyn was let go. However, she had paid union dues ever since the certification.
When she sought the union's help in clearing up her situation, she didn't get it. Two union officials said they couldn't handle the case because of a conflict of interest -- Carolyn's boss reported to their boss. Carolyn eventually hired a lawyer and got a settlement. But she is wondering if she could get her union dues returned, and whether the conflict of interest the union claimed was legitimate.
Stewart Saxe, employment lawyer, Baker & McKenzie, Toronto:
It is unusual, but perhaps not unprecedented, for union dues to be collected before a first collective agreement is signed, Mr. Saxe says.
But if the employer deducted them, there must have been some kind of interim agreement with the union. Therefore, "I can't see any way Carolyn could get the dues back." In Ontario, such an interim agreement would have to be ratified by the employees it affects.
The only circumstances under which Carolyn could get the dues returned would be if a labour board ruled the local union officials' failed to represent her, he says. Ontario law says the failure to represent an employee has to be arbitrary or discriminatory. It is hard to predict if this case would qualify, he says. But raising the issue might persuade the union to return Carolyn's dues on its own.
With regard to the conflict of interest, the union officials seem to hold a "common but misinformed" view of what constitutes such conflict, Mr. Saxe adds. Their job, from the moment of certification, is to represent employees.
Since the union was certified and negotiating for a contract, there may have been another remedy for Carolyn. She might have filed a complaint at the labour board suggesting the employer, while negotiating, was engaged in activities other than "business as usual."
Employers are prevented from changing employees' working conditions while a first contract is being negotiated. Unfortunately, "business as usual" is a difficult concept to work with. Closing down the sports program may or may not have qualified.
Chris Schenk, director of research, Ontario Federation of Labour:
Mr. Schenk doesn't buy the conflict-of-interest argument either. The union reps may have believed they had a problem because of their lack of experience, he says, but their first duty is to members.
If they were worried about their own boss, they could have asked a union staff person -- such as the one who headed the organizing drive -- to intercede for Carolyn.
There is nothing to stop the university dumping a program if it wants to, he adds. If a collective agreement had been signed, the union could have filed a grievance on Carolyn's behalf and at least tried to get her bumped into another job. After all, she had been on staff for several years. But because the agreement wasn't signed, she was in a sort of limbo.
Liz Hoffman, director of athletics, University of Toronto:
Ms. Hoffman says Carolyn should have signed a contract clearing outlining her duties and responsibilities, adding that is becoming the norm in university sports.
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