Court limits liability of union members in pilots’ spat.
Two new labour-relations cases raise interesting questions about the liability of individual members and the use of management as replacement workers.
Q Union-man Joe Hill breaks the union’s constitution. Is he liable to every other member of his union?
That important question was recently before Ontario’s top court, in a very dramatic fashion involving Air Canada pilots.
In 1991, the pilots became part of the 4,000-member bargaining unit of the Canadian Airline Pilots Association (CALPA). CALPA’s constitution permitted the union president to issue a merger declaration, requiring employees of all the unions merging into CALPA to participate in an integrated seniority list.
That is, when the president took advantage of this option, he was indicating that he wanted to make one seniority list out of what had been lists respecting six different airlines.
Air Canada and Air Ontario could not agree about an integrated list, so, as the constitution stipulated, the dispute went to binding arbitration. The arbitrator rejected the Air Canada pilots’ argument that they should have seniority over Air Ontario pilots. He ordered that the bottom 15 per cent of the Air Canada pilots was to be “dovetailed” with all senior pilots on the general list.
CALPA’s president accepted this award, but the Air Canada pilots refused to disclose their seniority list. They voted to reject the arbitral award and left CALPA to form their own union.
Two years later, CALPA members brought a class action suing the Air Canada pilots personally for $300 million in damages. They claimed that, by refusing to accept the arbitral award, the Air Canada pilots breached the CALPA constitution. But on a pre-trial motion, a judge shut the lawsuit down, ruling that there was no contract between the Air Canada pilots individually and the CALPA members individually.
A The Ontario Court of Appeal now has upheld that view. Justice Robert Sharpe has held for the court that “since the rights and obligations of individual (union) members exist in relation to all other members as a whole, a direct, one-on-one individual contractual relationship...would be contrary to the essential nature of the union as a group of members...
“It would be a distortion of the very nature of the complex of contracts between each and every member to suggest that members are individually contractually liable to each other. Thus, it follows that the contractual right of an individual member to damages lies against the membership as a whole and not against other individual union members.” (The italics are Justice Sharpe’s.)
In 1957, the Supreme Court of Canada endorsed the view that each member of a union has a contract with each of his union colleagues, committing himself to the group on the specific terms in the union constitution. Here, the court is limiting the extent of such contracts, declaring that damages lie against the union membership as a whole where the claim is based on a breach of the union constitution or “contract.”
For more information: Berry v. Pulley, 48 Ontario Reports (3d) 169, Apr. 28/00 (Ont. C.A.).
Q British Columbia’s Labour Relations Code forbids the use of replacement workers during strikes and lockouts. The employer cannot even bring in a manager “who ordinarily works at another of the employer’s places of operations.” But what if the managers work at several of their employer’s locations, including the struck location?
That conundrum recently landed in the province’s Supreme Court. While attempting to negotiate a first collective agreement, 10 of the 22 offices of the B.C. Automobile Association went on strike. The association brought managers in to run the 10 offices. It claimed that, although the managers usually worked at head office, they also occasionally worked in the struck offices, even if only once a month.
Two separate panels of the B.C. Labour Relations Board agreed with the association that this did not breach the Code. The first panel decided that the managers ordinarily spent a significant period of their work time at the struck offices.
The “reconsideration panel” agreed, noting that the first panel’s approach “precludes a person who, for example, works 50 per cent of the time at each of two locations of an employer from being able to do replacement work at either location in the case of a strike or lockout.
“The result reflects the pre-strike/lockout makeup of the workplace, by allowing as replacement workers only those persons with an established work attachment to the struck or locked out place of operation. This approach...allows the board to implement a sensible labour relations approach consistent with the purposes of the whole of” the relevant section in the Code.
A But the court has said that both panels took the wrong approach to the section.
It has required them to look at what the regional sales managers did, if anything, at other places of operations of the BCAA. “Instead, both decisions look at the struck places of operations,” the court has ruled.
“This amounts to the substitution of an entirely different test than that formulated by the legislature in (the Code section)... To say a person works at a struck location is not an alternative way of saying he or she does not work at another location. Furthermore, the board’s formulation seems to me inconsistent with the underlying thrust of (the section), which is oriented to the exclusion of replacement workers.”
The evidence showed clearly, the court has found, that the managers did not ordinarily work at the struck locations where they performed replacement duties.
The court was particularly critical of the panels for saying that their decisions in the employer’s favour manifested “labour relations judgment” and that they were “sensible labour relations approach.”
“The board cannot clothe itself with immunity from judicial review merely by using self-congratulatory forms of words like a kind of magical incantation,” the court says, “no more (sic) than I could ward off the Court of Appeal by saying that this judgment is a correct exercise of the court’s power of judicial review.”
For more information: O.P.E.I.U., Loc. 378 v. British Columbia (Labour Relations Board), 2000 BCSC 939, Vancouver registry no. AS991490, June 16/00.
Q Union-man Joe Hill breaks the union’s constitution. Is he liable to every other member of his union?
That important question was recently before Ontario’s top court, in a very dramatic fashion involving Air Canada pilots.
In 1991, the pilots became part of the 4,000-member bargaining unit of the Canadian Airline Pilots Association (CALPA). CALPA’s constitution permitted the union president to issue a merger declaration, requiring employees of all the unions merging into CALPA to participate in an integrated seniority list.
That is, when the president took advantage of this option, he was indicating that he wanted to make one seniority list out of what had been lists respecting six different airlines.
Air Canada and Air Ontario could not agree about an integrated list, so, as the constitution stipulated, the dispute went to binding arbitration. The arbitrator rejected the Air Canada pilots’ argument that they should have seniority over Air Ontario pilots. He ordered that the bottom 15 per cent of the Air Canada pilots was to be “dovetailed” with all senior pilots on the general list.
CALPA’s president accepted this award, but the Air Canada pilots refused to disclose their seniority list. They voted to reject the arbitral award and left CALPA to form their own union.
Two years later, CALPA members brought a class action suing the Air Canada pilots personally for $300 million in damages. They claimed that, by refusing to accept the arbitral award, the Air Canada pilots breached the CALPA constitution. But on a pre-trial motion, a judge shut the lawsuit down, ruling that there was no contract between the Air Canada pilots individually and the CALPA members individually.
A The Ontario Court of Appeal now has upheld that view. Justice Robert Sharpe has held for the court that “since the rights and obligations of individual (union) members exist in relation to all other members as a whole, a direct, one-on-one individual contractual relationship...would be contrary to the essential nature of the union as a group of members...
“It would be a distortion of the very nature of the complex of contracts between each and every member to suggest that members are individually contractually liable to each other. Thus, it follows that the contractual right of an individual member to damages lies against the membership as a whole and not against other individual union members.” (The italics are Justice Sharpe’s.)
In 1957, the Supreme Court of Canada endorsed the view that each member of a union has a contract with each of his union colleagues, committing himself to the group on the specific terms in the union constitution. Here, the court is limiting the extent of such contracts, declaring that damages lie against the union membership as a whole where the claim is based on a breach of the union constitution or “contract.”
For more information: Berry v. Pulley, 48 Ontario Reports (3d) 169, Apr. 28/00 (Ont. C.A.).
Q British Columbia’s Labour Relations Code forbids the use of replacement workers during strikes and lockouts. The employer cannot even bring in a manager “who ordinarily works at another of the employer’s places of operations.” But what if the managers work at several of their employer’s locations, including the struck location?
That conundrum recently landed in the province’s Supreme Court. While attempting to negotiate a first collective agreement, 10 of the 22 offices of the B.C. Automobile Association went on strike. The association brought managers in to run the 10 offices. It claimed that, although the managers usually worked at head office, they also occasionally worked in the struck offices, even if only once a month.
Two separate panels of the B.C. Labour Relations Board agreed with the association that this did not breach the Code. The first panel decided that the managers ordinarily spent a significant period of their work time at the struck offices.
The “reconsideration panel” agreed, noting that the first panel’s approach “precludes a person who, for example, works 50 per cent of the time at each of two locations of an employer from being able to do replacement work at either location in the case of a strike or lockout.
“The result reflects the pre-strike/lockout makeup of the workplace, by allowing as replacement workers only those persons with an established work attachment to the struck or locked out place of operation. This approach...allows the board to implement a sensible labour relations approach consistent with the purposes of the whole of” the relevant section in the Code.
A But the court has said that both panels took the wrong approach to the section.
It has required them to look at what the regional sales managers did, if anything, at other places of operations of the BCAA. “Instead, both decisions look at the struck places of operations,” the court has ruled.
“This amounts to the substitution of an entirely different test than that formulated by the legislature in (the Code section)... To say a person works at a struck location is not an alternative way of saying he or she does not work at another location. Furthermore, the board’s formulation seems to me inconsistent with the underlying thrust of (the section), which is oriented to the exclusion of replacement workers.”
The evidence showed clearly, the court has found, that the managers did not ordinarily work at the struck locations where they performed replacement duties.
The court was particularly critical of the panels for saying that their decisions in the employer’s favour manifested “labour relations judgment” and that they were “sensible labour relations approach.”
“The board cannot clothe itself with immunity from judicial review merely by using self-congratulatory forms of words like a kind of magical incantation,” the court says, “no more (sic) than I could ward off the Court of Appeal by saying that this judgment is a correct exercise of the court’s power of judicial review.”
For more information: O.P.E.I.U., Loc. 378 v. British Columbia (Labour Relations Board), 2000 BCSC 939, Vancouver registry no. AS991490, June 16/00.
