Tuesday 28 October 2014

Saskatoon Transit: The Final(?) Chapter (plus some Ghomeshi)

It feels a bit odd to be writing this post (probably the last one) about the Saskatoon Transit situation, because, first, this blog was started, at least in part, because of the lockout; second, because it all seems a distant memory now that Transit is running again; and third, because of the bizarre news of Jian Ghomeshi's dismissal from the CBC over "sex allegations" (to use the Toronto Star's wording), which I think we can all agree is a much more lurid story than the minutiae of Saskatchewan labour law. Regardless, I'm going to ignore the Ghomeshi story as others have already written about the legal aspects of that case. For example:

Professor David Doorey's comments on the labour and employment law aspects of Ghomeshi's firing are on his blog, The Law of Work, here. In particular: could the CBC fire Ghomeshi for off-duty conduct? And can Ghomeshi bring an action against his former employer in tort, or is he limited to a grievance under his collective agreement?

Professor Brenda Cossman, meanwhile, writes about BDSM and the law of consent in the criminal law context (under Canadian law you can't consent to bodily harm, for a start) for the Globe & Mail, here.

Finally Howard Levitt, an employer-side labour lawyer, characterizes Ghomeshi's lawsuit against the CBC as "hopeless", here. Of course, Levitt being Levitt, he takes the opportunity to go after unions in general, because that's what he does. "How's the weather today, Howard?" "Terrible, and you know who's to blame? Unions." So while Levitt's basic legal analysis may have some merit, take his comments in general with a huge grain of salt. And by "salt" I mean "bias."

Anyway. On to The Saskatchewan Employment Act, which has nothing to do with BDSM, at least not overtly. Reading my analysis of this particular specific point may qualify as masochism on your part, mind.

So, here's a thumbnail sketch of the situation:

  1. The City locked out its transit workers while an outstanding, unrelated, Unfair Labour Practice application was still pending before the Labour Relations Board.
  2. The Board ultimately ruled that the lockout was illegal, because the SEA makes it illegal for an employer to lock out, or for a union to strike, when there is "any application" pending before the Board.
  3. The City argued that the application had nothing to do with collective bargaining or the lockout, and that any application should be read in a more narrow sense than the plain language would suggest.
  4. The Board, in my view rightly, did not accept the City's argument and enforced the law as it is plainly written.
Meanwhile, as I've mentioned before, the Saskatoon Star-Phoenix has argued that the SEA needs to be changed in this regard. Which is ironic, given that the Saskatchewan government implemented numerous restrictions on strikes and lockouts in 2013 - such as a requirement to bargain to an impasse (which employers already had, but unions didn't), to respect a 14-day "cooling off period" prior to striking or locking out, and to attend mandatory mediation/conciliation - and the Star-Phoenix seemed to think the new legislation was just fine.

I don't mean to single out the Star-Phoenix here, but that's my big issue with the outcry - such as it is - about these provisions. Restrictions on strikes and lockouts, apparently, are fine. But one employer makes one bad call, and all of a sudden the legislation must be changed.

Employers argued in 1993 that these restrictions should be removed entirely. CUPE in 2012 suggested the restrictions could be tweaked (both mentioned here).  On the other hand, Larry Hubich, President of the Saskatchewan Federation of Labour, has commented that he believes the statutory restrictions should not be changed.

Note, again, that we're dealing with limitations on both employers (6-62(1)(l)) and unions (6-63(2)(b)) in the SEA.

So let's take a look at why these statutory limitations are there.

These provisions have been around since 1944, when The Trade Union Act, 1944 was proclaimed. At the time - and up until 1983 - Saskatchewan's labour legislation didn't prohibit strikes during the term of a collective agreement. The law has since changed in that regard. Now every piece of labour relations legislation in the country has the so-called "peace obligation", which set out that there is to be no strikes or lockouts while a collective agreement is in force. But, again, our labour laws have been revised in 1983, 1993, 2008, and 2012, and no change was made to these statutory limitations on strikes and lockouts.

Because a union could strike, and an employer could lock out, at any time, it was important to prevent either side from using economic pressure to subvert Board processes - from using a strike or lockout to cause the other side to hesitate or be coerced into pursuing its rights before the Board. (RWDSU v. Westfair Foods Ltd., [1993] S.L.R.B.D. No. 32, at p. 16 (Quicklaw)).

Okay, so historically, that was the purpose of the prohibition. What about now? Strikes and lockouts are now forbidden during the term of a collective agreement.

But, once a collective agreement has expired, strikes and lockouts are back on the table. And as the Board pointed out in Re Pepsi-Cola Canada Beverages (West) Ltd., [1997] S.L.R.B.D. No. 58 at para. 13 (Quicklaw):

...In this context, ss. 11(1)(j) and 11(2)(b) [now ss. 6-62(1)(l) and 6-63(2)(b) of the SEA] of the Act can be seen to play a role in containing disputes by not allowing a dispute that has been referred to the Board to become the subject matter of industrial action, although such action otherwise may be permitted under the Act. The prohibition contained in ss. 11(1)(j) and 11(2)(b) of the Act not only prevents the parties from upping the ante in a dispute that is already before the Board, as was suggested as its purpose in the Westfair Foods Ltd. case, supra, it also prevents certain issues from causing unnecessary or protracted industrial action.
Therefore, the risk remains. Contract negotiations can take months or, sometimes, years, especially with big employers. Applications can arise out of collective bargaining (for example, allegations of failure to bargain in good faith, or an employer communicating improperly directly with its employees), or they may be unrelated, but either way may be sufficiently serious that they need to be resolved before a contract can be finalized (as in Pepsi-Cola, above). Or, there may be completely unrelated applications which are not a barrier to finalizing a contract, as was the case with Saskatoon Transit. Either way, these provisions help maintain industrial peace.

And that, I think, is why they've been kept in, rightly or wrongly. It may be that these restrictions actually favour employers, because restrictions on strikes are more cumbersome on unions than restrictions on lockouts are on employers, and the majority of ULP applications are brought by unions, too. Regardless, these provisions "keep the peace", so to speak, in the industrial realm.

The value of the current language is certainty. The City of Saskatoon's arguments were flawed, in my view, because they flew in the face of the plain language of a pretty well-known statutory restriction. But on the policy level, they were also flawed because all of a sudden you're asking the Board to rule on what applications are "relevant" and what aren't. With such uncertainty it'll take an LRB hearing to determine if a particular application is a bar to a strike or lockout, or not. 

(Yes, it took an LRB hearing this time, but the City made a bad call. That happens. Given how public this has been, do you think anyone will make that mistake again?)

There's no question the legislation could be changed. Other jurisdictions in Canada don't have the same language in their various Acts. But I don't think the answer is just to add the words "relevant to collective bargaining" or somesuch to ss. 6-62(1)(l) and 6-63(2)(b). That's going to make things more complicated and uncertain.

Limiting strikes and lockouts to certification applications - to prevent an employer from locking out its employees just because they are trying to unionize, for instance - would be an option. The B.C. Labour Relations Code sets out:

32  (1) If an application for certification is pending, a trade union or person affected by the application must not declare or engage in a strike, an employer must not declare a lockout, and an employer must not increase or decrease rates of pay or alter a term or condition of employment of the employees affected by the application, without the board's written permission.
Similar language to our prohibition, but limited to certification applications; it doesn't include Unfair Labour Practices.(Other jurisdictions have similar prohibitions regarding strikes and lockouts when there's a pending certification application, though with different language.)

That's kind of what CUPE suggested in 2012: specifically exclude most Unfair Labour Practice applications from triggering the statutory prohibition on strikes and lockouts. Other types of applications (like certification applications) would continue to be included.

At the absolute minimum, I think a prohibition on strikes and lockouts while a certification application is pending must remain within the Act, because that is one of the most vulnerable times for both workers and their unions of choice. Now, that may fall under another type of unfair labour practice - a prohibition on using intimidation or coercion to keep an employee from exercising his or her rights under the SEA (s. 6-62(1)(a)) - but this is important enough that I think specific protections are required. And "recognition strikes" - where workers had to go on strike to get employers to recognize the union - are exactly what we've tried to get away from with our labour relations model.

But what if an employer refuses to bargain in good faith with the union representing its employees? That would have been an ULP under the old Trade Union Act (s. 11(1)(c)) and continues to be so under the SEA (s. 6-62(1)(d)). A union could bring an ULP application before the Board requiring the employer to begin to bargain in good faith; and you don't necessarily want an employer to be able to lock-out its workers in retaliation for their exercising their rights under the Act.

But of course the Union is also tying its own hands in such a scenario. Now the Union has to rely upon the LRB to resolve things; it can't strike to force the employer to bargain, either. Whether this is a desirable outcome or not depends a great deal on your policy goals. Saskatchewan governments of all political stripes have seemed to feel that they like the language as is. (Rightly or wrongly.)

Retaliatory strikes or lock-outs could be dealt with by making it illegal to lock out or strike for the purpose of influencing the other side to withdraw any pending application. Again, though, there would be a new subjective element (and therefore further uncertainty) in these prohibitions. Careful legislative drafting would be needed.

But given how rarely this situations arise; given that the present language is certain, and than many of the potential changes would create uncertainty; given that the statutory prohibitions do still have some value; maybe changes aren't all that urgent at all. A bit of a tempest in a teapot; I'd suggest that the government, if it embarks upon changing the law, should keep in mind why the provisions are there in the first place, and ensure that any changes are done in such a way that meaningful collective bargaining is protected and promoted.

Now, having said all that, what'll happen if/when the Court rules on the City's judicial review application? I haven't the foggiest. Judges have disagreed with me in the past and will disagree with me into the future, I'm sure.

Were the Court to overturn the LRB decision, if nothing else, at least I'd get one more blog post out of it.

Tuesday 21 October 2014

Saskatoon Transit: A Response to the Star-Phoenix's editorial.

In an op-ed piece today, the Saskatoon Star-Phoenix opined  on not only the city's "convoluted" response to the lockout and to media questions, but also on our old friend, s. 6-62(1)(l) of The Saskatchewan Employment Act which I've blogged about previously. The Star-Phoenix says, among other things:

This section of the employment act, which was the board's basis to deem illegal the lockout and council's changes to ATU's defined-benefit pension plan, warrants a rethink by the government. The provision would seem to open the door to employee groups engaged in contract talks filing trivial complaints with the LRB as a way to hamstring employers, especially when it takes the board months to issue a decision.
I'll say at the outset that I actually do think the provisions need a rethink, but I also think that the concerns raised by the Star-Phoenix are a bit one-sided. For a start, remember that s. 6-63(1)(b) puts a corresponding limitation on unions' ability to strike, so this would also allow - to use the S-P's words - "employers or employer groups engaged in contract talks filing trivial complaints with the LRB as a way to hamstring unions..."

As I've mentioned previously, these are at best "equal opportunity" restrictions. At worst, they actually affect unions more than they affect employers. I think there's an unfortunate tendency in this case to portray the legislation as somehow "pro-union", because in this case it worked to the Amalgamated Transit Union's advantage. But to somehow suggest that those awful unions might abuse the terms of the SEA to their advantage, without mentioning that employers might do the same, seems a dubious and troublesome omission.

That said, I think the S-P's concerns are also exaggerated, for the following reasons.

First, this provision has been in the SEA and its predecessor, The Trade Union Act, since 1944. That's 70 years, and while hypothetical concerns have consistently been raised about these statutory restrictions, they've always, it seems, been just that - hypothetical. No flood of abusive or frivolous Unfair Labour Practices appears to have occurred. And, indeed, there doesn't seem to be any suggestion in this case that the ATU filed their application to defeat a potential lockout. (That's not to say they didn't, but I've seen no evidence or argument to that effect.)

Second, the Labour Relations Board has control over its own process, and it can deal with frivolous applications expediently. Section 6-111 (1)(p) of the SEA grants the Board the power "to summarily dismiss a matter if, in the opinion of the board, there is a lack of evidence or no arguable case"; s. 6-111(1)(q) allows the board to "decide any matter before it without holding an oral hearing." Applications for summary dismissal are generally done via letter - a full hearing is not necessary - and the Board is able to dismiss frivolous matters just as the Courts can.

Third, remember that for these provisions to apply, a matter must be "pending". That means more than simply filed, in my view. The Board, in my opinion, would need to have at least started to consider the matter, but not yet given its decision. It would take a canny, even psychic, union (or employer) to file an application that would:
  1. Survive an application for summary dismissal;
  2. Be filed early enough that a preliminary or full hearing of the matter would commence; but
  3. Be filed late enough that the Board could not render a timely decision;
 all so that the other side's opportunity to strike or lockout would be delayed.

As the S-P points out, in this case the outstanding application was "pending" for several months. This is unusual, in my experience, though the Board does have six months (s. 6-116(1)) to render a decision.

Fourth, and finally, keep in mind that these restrictions don't just apply to the other side. They also apply to the party filing the application. "Any application", right? So a union that files an application to block a lockout - which is a bit of a paper tiger in any event - would also be blocking its own ability to take strike action.  (Heck, I remember early in my career being told not to file an Unfair Labour Practice application on behalf of a union, because that would interfere with the union's ability to strike. As I say, this provision has been around for a long while, and it goes both ways.)

And the ability to strike is much more important to a union's bargaining power than the ability to lockout is to an employer's.

These restrictions have been around, and been subject to criticism, for literally decades. This isn't a new argument, nor has the statutory language in this regard changed. That doesn't mean the language shouldn't be changed now; but it should be done in a careful and measured way, and in a manner that promotes better and more effective collective bargaining, not as a knee-jerk response just because it once happened to benefit a union.

I think I've drawn enough water from this well. My plan for the next (and probably last) blog post on this topic is to look at the reasons behind these provisions of the SEA - why we have them in the first place. And then, barring new developments on the judicial review front, I'll move on to other legal topics of interest. Gasp!

Monday 20 October 2014

Saskatoon Transit: Judicial review and a bit of statutory history

So the saga of the ongoing Saskatoon Transit contract negotiations continues.

Mayor Don Atchison has now said he wants to take the matter to judicial review, according to the CBC:
Atchison said the city solicitor told council they were on safe legal ground when the first lockout notice was issued just over four-weeks ago. If they didn't believe it was legal, he said they wouldn't have gone ahead with the lockout. 
He said he's asking for a judicial review of the Saskatchewan Labour Relations Board's decision that the first lockout was illegal. He does not know when the decision will come out.
Prof. Dionne Pohler, in an interview with the Saskatoon Star-Phoenix, had hoped (as I think did many of us) that the LRB ruling would promote fresh bargaining, not a continuation of hostilities.
University of Saskatchewan assistant professor Dionne Pohler applauded city council's decision [to end the lockout].
"I have to say I'm very pleased. It shows the city is willing to take a step forward. I would hope the union would respond accordingly," said Pohler, who specializes in labour-management relations.
She said it's hard to tell whether this means an agreement is any closer. There could be a deal at any time, but there could also be more job action from either side.
She said there had been an escalation of resentment and a souring of relationships in the past month, but the weekend's events could cause everyone to take a fresh look at the issues.
But it looks like the City intends to pursue further litigation, which is too bad.

I won't repeat my previous discussion about the relevant sections of The Saskatchewan Employment Act except for a quick reminder that the lockout was declared illegal because there was an application "pending before the board" when the lockout notice was given, and that's forbidden under the SEA.

Keep in mind, however, that this provision is neither "pro-union" nor "pro-employer". Both sides are prevented from imposing a lockout or changing terms and conditions of employment (employers) or from striking (workers). On the other hand, most applications are brought by unions, and most industrial action is in the form of a strike rather than a lockout, so this limitation may actually hamper unions, in the big picture, more than it would hamper employers.

Also keep in mind, again, that these situations just don't come up that often. This has been a dramatic couple of weeks, but it's pretty rare for a situation like this to arise.

That said, here's a fun fact: the sections that prevent a strike or lockout while "any application is pending before the Board" - s. 11(1)(j) and 11(2)(b) of the old Trade Union Act, and s. 6-62(1)(l) and 6-63(1)(b) of the new Saskatchewan Employment Act - have been before the Legislature at least twice before, when revisions to the legislation were being considered, and both times, the provision was left "as is".

In 1993, the "Priel Committee" compiled the "Report of Committee Considering Proposed Amendments to the Trade Union Act." This was after the NDP had returned to power, and was considering changes to the old legislation. At that time the Committee noted:

Sections 11(1)(j) and 11(2)(b) make it an unfair labour practice for an employer and a trade union respectively to lockout or strike while an application is pending before the Labour Relations Board. Business takes the view that pending applications may have nothing whatsoever to do with the matters in dispute which give rise to a potential strike or lockout and can be the subject of abuse. Business takes the view, therefore, that section 11(1)(j), section 11(2)(b) and section 11(3) of the Act should be deleted.
[Emphasis added. Pages 44-45 of the Report, cited in CUPE's submissions in 2012, referenced below.] 
Okay, in 1993 employers wanted the provisions gone. The language wasn't changed. Then, in 2012 with a Conservative government in power (okay, fine, "Saskatchewan Party"), Saskatchewan undertook a new consultation process regarding changes to labour legislation. And lo and behold, in the Canadian Union of Public Employees' submissions to the government, what do we find? The above paragraph from the Priel Report. Oh, and:
 We observe that the filing of unfair labour practices can be used as a manipulation of the other parties' rights. A union expecting to be locked out or the employer expecting to be struck can file a complaint. This would then prevent the respondent's access to their statutory rights in a way that defeats rather than advances collective bargaining. ...
...CUPE supports a refinement to this provision that would limit its application. CUPE proposes an exception to sections 11(2)(b) and 11(1)(j) so that they do not include LRB proceedings commenced under any part of Section 11.
(CUPE submissions, p. 139-140, full document here)
 Remember this is a union putting this forward. I won't comment on whether I think CUPE's proposals would be a good thing or not; that's a question for another time (...or for a future blog post, maybe).

Now, given the Saskatchewan Party's general lack of love for the labour movement (and for collective bargaining overall), I rather suspect that CUPE's submissions were given little consideration and that the "consultation" was more of a fig leaf for the government than anything. In fact, given that (as I mentioned above) these limitations may affect unions more than employers, the SaskParty may well have decided they like having these provisions. But, still, the government had again been told by at least one party: these provisions are in the legislation. You can change them.

Once again, no change. The Saskatchewan Employment Act was proclaimed in 2013. Ss. 11(1)(j) and 11(2)(b) of the TUA became ss. 6-62(1)(l) and 6-63(1)(b) of the SEA.

If the City pursues judicial review of the LRB decision, the question will be whether the LRB's interpretation of the SEA was "reasonable". In my view, it was (though I hasten to add we still don't have the Board's written reasons for why it ruled as it did). The Board has the jurisdiction, responsibility, and expertise to interpret its governing statute. It's owed deference in its decision. And in my view, finding in the City's favour would have flown in the face of the plain language of the legislation, and would have flown in the face of the fact that the Legislature has apparently - at least twice - refused to change the section in question.

Whether ss. 6-62(1)(l) and 6-63(1)(b) are good or bad for labour relations is not the point. That's for the Legislature to decide. And the Legislature has decided at least three times  (in 1944 when it proclaimed The Trade Union Act, 1944; in 1993; and in 2013) that these sections were to stay. It should be up to the Legislature to change them.

Friday 17 October 2014

Saskatoon Transit: the results are in

Unfortunately I don't have time for a lengthy blog post regarding the Labour Relations Board's order ending the City's lockout of its transit workers. But I did want to post something about it; after all, I've been waiting for this Order for a while.

First, I should note that we don't have the Board's reasons as yet. The Board (as I thought they might) clearly made it a priority to release its decisions quickly. So we have an Order, but not the reasons for why that order was made.

In any event, here's  thumbnail sketch of what the Order says. I'm paraphrasing here; this isn't the actual text of the Order, obviously.

  1. The ULP filed in April was "pending" for the purposes of s. 6-111(2)(a) of the SEA. The Board had considered (remember the "deemed pending" section?) the file during an "in camera" meeting on June 3, and it was therefore pending from June 3 to October 3 (the date of the hearing and Order in that matter).
  2. As a result three actions by the City were found to have been illegal: the lockout notice, the lockout itself, AND the unilateral changes to the City pension plan.
  3. The ULP from April (the Board found) is no longer pending.
Wow. Pretty much a solid win for the ATU.

What does that mean? Well, the Board goes on to order:

  1. The City must end the lockout.
  2. The City must pay compensation to the locked out workers for the period during which the said application was pending before the Board.
  3. The City and the ATU are to meet to discuss the quantum (amount) of monetary losses arising from the lockout (and which the City must pay), with leave to return to the Board for a ruling if they can't reach agreement on that point.
  4. The Board does not make any definitive Order on what happens to the changes to the City pension plan. Rather, the City and the Union are to make further submissions to the Board on this issue.
Pretty straightforward, but there are a couple of points here. First, note that the compensation does not appear to be full back pay for the locked out workers from September 20th to today. Instead, it seems to be compensation only up to October 3. A Solomonic decision by the board - a victory for the Union, for sure, but some comfort to the City that the locked out workers will only get around two weeks' back pay, rather than a month's. As I discussed previously, full back pay would have given the Union a big advantage in bargaining. This decision certainly helps the Union's position, but it looks like the workers are still out their pay from October 4 onwards.

The question of what the Board can do regarding the City's changes to its bylaws re; the pension plan is another open question. Further argument will be forthcoming; the Board has broad powers to order a variety of remedies but it may not have the power to order the City to re-amend a Bylaw. We'll have to see what happens there.

Finally, this doesn't resolve the question of the appraisals of the pension plan; or the merits of each side's position. And the City could now re-lockout its workers, if it wished. This was a win for the ATU, no question, but labour unrest may yet continue.

As I touched on previously, the City has no right to "appeal" the decision as such, but they can apply to the Court of Queen's Bench for "judicial review". In that case the Court has the jurisdiction to decide whether the Board's decision was "reasonable" or not, and the Court should, generally speaking, defer to the LRB on matters within the Board's jurisdiction. Doesn't mean a Court won't overturn the LRB's decision - Courts can and have done so - but the Board has some latitude in interpreting its governing legislation (the SEA). Again, I don't want to bog down things with a discussion about administrative law principles, but suffice to say the City has the right to put this decision before the Courts. I'm not sure it would be to anyone's benefit for the City to do so, but we may see further litigation on this point.

Thursday 16 October 2014

Saskatoon Transit: "Slightly Pregnant" and Partial Revocation of Lockouts

Earlier today, Saskatoon Mayor Don Atchison said (here) that returning some of the City's locked-out workers to their jobs in order to provide scaled-down bus service (as City Councillor Darren Hill has proposed here) sounded "like someone saying they're slightly pregnant." In the Mayor's view, "[y]ou're either in a lockout, or you're not."

I'm not sure if the Mayor means the City shouldn't bring some of its workers back, or that the City can't. If the former, from the City's perspective, the Mayor might be right. If he means the latter, he's almost certainly wrong.

Partial revocation of the lockout - bringing some workers back to work while other workers remain locked out - is a tactic that would be open to the City. Nothing in The Saskatchewan Employment Act says that a lockout can't be partially or fully revoked by an employer. The City could move from a total lockout of all transit workers to a partial lockout of just some of them; just as it could have done the reverse, locking out some workers and then moving to a full lockout later.

The parties could also negotiate a deal for some workers to return, as happened in 2007 - during a strike, not a lockout, but the principle's the same - when striking members of SGEU agreed to return to work to operate snowplows during a terrible blizzard (as recounted here).

Similarly, strikes need not involve all striking workers at all times. The "rotating strike" is a tactic of long standing in labour relations - not that long ago, members of the Health Sciences Association of Saskatchewan used rotating strikes during their dispute with their employers back in 2011 (as mentioned here).

(The interaction between rotating strikes and partial lockouts can get pretty damned complex. See, for instance, the scenario that played out in B.C., where the B.C. Teachers Federation commenced rotating job action and the employer retaliated with a partial lockout, briefly summarized here.)

In theory, in the context of a strike, striking workers could even walk off the job en masse and then, some time later, have a number of them propose to return to work. It's difficult to see what advantage this tactic would have for a union (I don't see how it could do anything but doom the strike to failure), but it's something that could be done.

But in either case, the other side doesn't have to accept it. An employer faced with rotating strikes could impose a lockout. A union faced with a partial lockout (or partial end to a lockout) could call a strike. (The ATU got a 90%+ strike mandate from its members earlier this year.)

But the main reason why it's not common for an employer (in the case of a lockout, as we have here) or workers (in the case of a strike) to "downgrade" from a total lockout or strike to a partial one is that it can drastically reduce bargaining power..

In the case of a strike, workers' bargaining power comes from their ability to "vote with their feet" and withdraw their labour. Pressure on the employer comes from the fact that - barring the use of "replacement workers", which is a whole other story - the employer's operations are shut down. In the private sector, that hits the pocketbook. In the public sector, it causes public unrest and political pressure. So the union's strength comes from the strength of the withdrawal, and a partial return to work is usually going to weaken that position. In fact during protracted strikes some employers do try to lure striking workers back to work in order to weaken the strikers' resolve and lessen the impact of the strike. "Solidarity" is the watchword of the labour movement for a reason.

But in the case of a lockout, it can weaken an employer's bargaining position, too. It can make the employer look hesitant - if a partial return-to-work is needed, why did the employer impose a total lockout in the first place? Is the employer really ready for a protracted labour dispute? And lifting the lockout on some workers would reduce financial pressure on the locked out workers and on their union's resources. (The fact that some workers will remain locked out would still be an issue, of course - nothing says an employer would have to allow all locked out workers an equal opportunity to return to work - but there are ways to deal with that, on the union side.)

It also sends the ball back into the union's court; the union would now have the option of calling a strike - pulling whatever workers were back on the job - at a time where the union would be at an advantage.

But all of that being said, there's no question the City could implement a partial return to work. (It could just voluntarily end the lockout entirely, too, but that doesn't seem very likely.) It could try to negotiate terms of a partial return to work with the ATU (which, from the City's perspective, would certainly have to include a no-strike promise from the ATU), as Councillor Hill suggested he might try to do. There are reasons why the City might not want to do so - and reasons why the Union might not want its members to return.

But "you're either in a lockout, or you're not" is a very simplistic way to look at this situation, and it's misleading to suggest a lockout - or a strike - has to be an all-or-nothing affair.

And of course there's still the question of whether the lockout is legal in the first place, which would render much of this moot. The City seems to be hunkered down and waiting for the decision of the LRB before it makes any new moves.

(As an aside, it rings a bit hollow for Mayor Atchison to say that City Council "gives direction" but does not get "involved in negotiations", given that it was City Council that voted to make unilateral changes to the municipal pension plan. Attempting to pass the buck to the City's human resources department (or legal department) is poor form, in my opinion; does City Council the Mayor back the City's play or not?)

[I had originally referenced City Council in the above paragraph, but since it's the Mayor who said it, it seemed unfair to tar all of Council with the same brush. If any Councillors have made similar comments, I'd make the same comment about them, obviously.]

Tuesday 14 October 2014

Saskatoon Transit: When is An Application "Pending"?

I've been following the Tweets from reporters at the LRB for most of today, thereby ensuring that I'll probably be working on class prep until midnight or so. Oh well. There's a bewildering flurry of arguments, legal points, and evidence from today - the extent of damages and/or backpay that should be ordered; whether the ATU had in fact agreed to changes to the pension plan; whether it mattered that the outstanding ULP was irrelevant to the lockout; and so on. I'm not going to attempt to sort through all that.

There is, however, one point I want to address: When is an application "pending"?

As I mentioned previously, s. 6-62(1)(l) of The Saskatchewan Employment Act makes it an Unfair Labour Practice for a Union to strike, or an Employer to lock out, while "any application is pending" before the Labour Relations Board.

I had assumed that it wasn't an issue whether an application was pending in this case. The ULP regarding the discipline of a bus driver was filed in April; I had assumed it had already gone to its full hearing and that the parties were just waiting for a decision. But looks like I was wrong.

(Article on the disciplinary hearing here. Note that it appears that the bus driver who had been disciplined did not present his testimony to the Board until the same day as the Order - October 3.)

If a hearing had commenced, there'd be no question that it was "pending", by virtue of s. 6-111(2)(a):

(2) For the purposes of this Part:
(a) An application is deemed to be pending before the board on and after the day on which it is first considered by the board at a formally constituted meeting until the day on which the decision of the board is made....

Now, note, that's deemed to be pending. That doesn't mean that's the only time an application is "pending". But if a hearing has commenced, that's guaranteed to be a "formally constituted meeting" so the "deemed" bit kicks in.

Why is this important? Well, imagine my surprise on Twitter today:

[Patricia Warwick is counsel for the City.]

Wait, what? Well, as mentioned above, the formal full hearing of the disciplinary ULP maybe wasn't held until October 3rd. Okay, on the face of it, that doesn't look good for the Union's position.  On the other hand:

[...and Gary Bainbridge is counsel for ATU.]

ATU counsel is of course correct - s. 6-111(2)(a) isn't exhaustive, and just because a hearing on the merits of a case wasn't convened doesn't mean that an application can't be pending. Further, if 6-111(2)(a) was meant to mean just "once a hearing has commenced", it would have been easy enough for the Legislature to have said so.

So, for instance, where a preliminary objection had been heard, but the full hearing had not commenced, that application was nonetheless found to be "pending". (R.W.D.S.U. v. Canadian Linen Supply Co. Ltd., LRB File No. 150-89.) Where an application for rescission/decertification was before the Board and the Board had ordered a vote, that application was "pending" until the final decision - an application remains pending until either granted or dismissed. (Re Beautiful Plains Villa, LRB File No. 221-88.)

I don't know if there have been any preliminary applications or objections before the Board on the disciplinary ULP, though it's unusual for an ULP - especially a disciplinary one - to remain "on the books" for some five months without getting to hearing. I suspect there has been at least some Board involvement with the file prior to October 3rd.

But it seems clear that a matter can be "pending" even if the main hearing on the merits has not begun. What's important - as Mr. Bainbridge argued - is that the Board has "considered" the matter (which would bring the application under 6-111(2)(a) - though, again, it's possible for a matter to be "pending" even if s. 6-111(2)(a) doesn't apply). And "considered" is a broad term. It probably doesn't mean that an application has simply been filed, because that could lead to all manner of abuses (with frivolous applications being brought purely to frustrate a strike or lockout). But it also doesn't mean, as the City seems to suggest, that a full hearing must have been convened.

Anyway, long story short, the question of what is "pending" is squarely before the Board. These latest updates haven't really changed my opinion of the matter - I still think the Union has a decent shot here - but much will depend on the specifics of the disciplinary ULP.

It's been a frustrating experience to be on the outside looking in, I admit. I would love to get my hands on the LRB file regarding that disciplinary ULP, for instance. If anyone knows what actually went down with that ULP and is willing to share, feel free to contact me. (I've avoided contacting counsel for ATU or the City about my posts here while the matter is ongoing.)

Sunday 12 October 2014

Saskatoon Transit Lockout: What's at Stake (and what isn't) in the ATU LRB application

My previous (and first-ever!) post on this blog talked about the Saskatoon Transit lockout, and why the Amalgamated Transit Union - which represents the City of Saskatoon's transit workers - was, and will be again, arguing before the Labour Relations Board that the lockout was illegal. Needless to say, labour nerd that I am, I'm awaiting the Labour Relations Board's decision on the application with bated breath. But here's the bad news.

Bad news the first: we probably won't get the LRB decision on Tuesday. The hearing of the ATU application is set to be argued on Tuesday, Oct. 14, and Wednesday, Oct. 15. It's likely argument will go through to Wednesday, and even then, the LRB may not give its decision that day. That said, I suspect the Board will render its decision and issue an Order as soon as it can (as it did with the interim Order of Sept. 26). The Labour Relations Board hasn't hesitated to act swiftly when workers or unions engage in illegal strike action. One would assume that they would act equally swiftly to shut down an illegal lockout, if they decide in favour of the Union.

But - sadly - we probably won't see the written reasons for that decision for some time after that. Which is really only an issue for law wonks like myself (sigh) - and of course for the losing side, who might decide to apply for judicial review. 

[There's no right of appeal, as such, from a decision of the LRB. But our Court of Queen's Bench retains jurisdiction to review Board decisions based on principles of administrative law. But that's a whole 'nother kettle of fish. Point is, if one party's dissatisfied with the result and they think it's worth trying to get the Board's decision overturned, then they do have recourse to the Courts and litigation may continue.] 

Bad news the second: As I mentioned in my previous post, this decision won't, in itself, end the dispute between the parties. A fresh lockout - or a strike by ATU - may commence. And the application, needless to say, won't say anything about the merits of each side's position in bargaining generally. In my view, it's not really relevant to this application whether the City misrepresented the state of the pension fund (as the ATU and, now, CUPE's national office, allege); nor is it relevant whether the ATU's wage demands are reasonable. This application is really only concerned with whether the City's lockout notice was legal.

[CUPE National's allegations about the City and the pension plan are here. I don't pretend to know the truth of the matter.]

That's not to say the application is meaningless. In fact, it has the potential to have a significant impact on ongoing bargaining. 

On the one hand, the ATU has a lot riding on this application. They've got a strong case, in my view, but few things are certain in litigation and this isn't a guaranteed win for the Union. It's possible the LRB may yet find that the purpose and intent behind The Saskatchewan Employment Act requires a more restrictive reading of s. 6-62(1)(l) (which I summarized last time) than the statute's plain language would suggest. If the LRB finds that the lockout notice was legal, that can't help but take wind out of the ATU's sails, both with the public and with its members. 

On the other hand, the City has a lot riding on this application, too - perhaps more than the Union. If the ATU is successful, the City is almost certainly going to be on the hook for almost a month of back pay (from the date of the lockout - September 20th - to the date of the Order). That has the potential to strengthen the Union's position quite dramatically, I'd think. ATU members have been off work for almost a month and some of them will no doubt be starting to feel the financial pinch - they've been subsisting on strike pay from their Union, and strike pay is usually a small fraction of a worker's regular wages. But if the ATU's application is successful, those members will potentially have almost a month's pay coming to them. Even if they're subsequently locked out again, in some ways it'll be a blank slate - the City's economic pressure to date wasted, which will no doubt irritate even those city residents who are sympathetic to the City in this dispute.

And this is just regarding the lockout. The Board has broad powers to grant remedies, and it has already enjoined the City from doing any further unilateral changes to its pension plan. What if the LRB determines that the City's unilateral changes to the pension plan were also illegal, for the same reasons?

[An aside: I was asked at one point whether the ATU's application is "just a bargaining tactic." To this I will say two things: one, a Union or an Employer is perfectly entitled to rely upon its legal rights, and the protections of the SEA, regardless of motivation - just as the City would have been had the ATU gone on strike before the outstanding Unfair Labour Practice application had been dealt with. And second, and perhaps more importantly - the City's lockout, in itself, is a bargaining tactic. Indeed, the lockout (and the strike) is the quintessential bargaining tactic, where one side attempts to use economic force and social pressure to get its way. So this application may well be a bargaining tactic but that's because at this point, almost everything is.]

But both sides should be nervous about public opinion. Public sector disputes are different from private sector disputes in that the profitability of the employer isn't really at stake in the public sector. As such, the court of public opinion is the main pressure point. And this application, in itself, isn't going to bring a final resolution to the ongoing dispute between the City and the ATU. The ongoing struggle for public support will continue.

Professor Dionne Pohler, of the Johnson-Shoyama School of Public Policy at the U of S, suggested early in the lockout that (and here I'm paraphrasing) both sides could find a way to meet in the middle and come to a satisfactory resolution. Prof. Pohler also notes, however, that public pressure at that point (Sept. 23) had not risen to the level where it would have an impact on the parties. It's now three weeks later and public pressure is mounting. At risk of being a bit Pollyanna-ish, here's hoping that regardless of which side prevails before the LRB, the application serves as an incentive for both parties to do exactly what Prof. Pohler suggests and negotiate a resolution where they both get most of what they want.

Professor Pohler's comments are found in an interview here.

[As a further aside, I suggested last time, based on City HR Director McInnes' comments, that the City's motivation for issuing the lockout notice in the first place was to prevent a labour dispute during winter. A bit of additional reading seems to bear this out; Councillor Charlie Clark, in what I think is a very well-written statement of his views on the situation, says the same thing, here.]

[And as a last, self-aggrandizing link, my brief interview with Global TV is found here. Apparently I'm an expert. Sweet!]

Friday 10 October 2014

The City of Saskatoon transit lockout, and why it may be illegal.

I decided this summer to start using public transit in Saskatoon. I made this decision primarily for environmental reasons; I'd moved further away from my workplace at the University of Saskatchewan and didn't want to drive every day. The fact that a monthly bus pass is cheaper than the cost of parking certainly didn't hurt. So much for saving the Earth - barely a month after I started taking the bus, on September 18, the City of Saskatoon issued a lockout notice to the Union representing transit workers.

The City said its lockout of its transit workers, who are represented by the Amalgamated Transit Union (ATU), was "carefully timed."  From the City's comments, it seems the goal was to push the ATU and its members into accepting the City's offer before the snow starts to fly. 

[City HR Director Marno McInnes' comments are here. ]

There's nothing wrong with that, in theory, of course. An employer is entitled to impose a lockout on its employees in the same way that workers are entitled to strike to strengthen their bargaining position. Strikes and lockouts aren't equivalent - an employer has numerous tools at its disposal to put pressure on a union, while a union's strongest (and often only) weapon is the ability to strike - but strikes and lockouts serve the same purpose, which is to put economic pressure on the other side to encourage them to settle.

Another factor here is that the City may have viewed a lockout as a necessary pre-requisite to City Council making changes to its municipal pension plan without negotiating with ATU. In Saskatchewan, an employer must negotiate to the point of impasse before it can make unilateral changes to terms and conditions of employment. A lockout isn't strictly necessary, but it's evidence that the parties are at an impasse. Under the new strike and lockout provisions in The Saskatchewan Employment Act, the parties can't issue a strike or lockout notice unless they are at a point of impasse in any event, so it's not clear that the lockout was necessary for this purpose. 

[Director McInnes again over here]

More importantly, though, the lockout may well be illegal, and so may be the City's unilateral changes to the pension plan. And the Union quickly brought an application before the Labour Relations Board, arguing exactly that.

On Sept. 26, 2014, the Labour Relations Board issued an interim Order (LRB File No. 211-14). That Order didn't end the lockout, but it did prevent the City from implementing any further unilateral changes to the pension plan. On October 14th, the City and the ATU are back in front of the Board to argue about the legality of the changes to the pension plan and to the legality of the lockout.

The Law

The language that potentially renders the City's actions illegal is the same now, under the new
Saskatchewan Employment Act ("SEA"), as it was under the now-repealed Trade Union Act. Section   6-62(1)(l)(i) of the SEA reads:

6-62(1)It is an unfair labour practice for an employer, or any person acting on behalf of the employer, to do any of the following:
(l) to declare or cause a lockout or to make or threaten any changes in wages, hours, conditions or tenure of employment, benefits or privileges while:
(i) any application is pending before the Board...

["Pending" means that the hearing of the application has begun but the Board has not yet rendered a decision, so an Employer or Union could not, for instance, file a frivolous application just to prevent a lockout or strike.]

Unfortunately for the City, there was an Unfair Labour Practice ("ULP") application pending before the Labour Relations Board when the lockout notice was issued. It appears the ULP was unrelated to the lockout - it related to discipline of a bus driver and was heard back in May - but the language in the SEA doesn't say a "related" application, or anything of the sort. It says any application. 

[Details on the outstanding ULP here]

In order for the lockout and the pension plan changes to be legal, the City has to convince the Labour Relations Board that when the SEA says "any application", the statute really means "any related application".  That flies in the face of the plain wording of the legislation. However, in fairness to the City's position, most of the time the ULPs in such situations are related either to the lockout itself, or to the collective bargaining process that was underway. The intention of s. 6-62(1)(l) is to ensure that employers don't "raise the stakes" on a ULP by trying to place economic pressure on a Union that has decided to pursue its rights before the Board. It's about protecting the integrity of the Board's process, and not allowing the rule of law to be undermined by economic power.

Still, the Board can't simply decide what it thinks the law should be. It's got to operate within the terms of the legislation that gives it its authority (the SEA). Without getting into the intricacies of statutory interpretation, the City would have to have some strong evidence that the Legislature somehow did not intend for the statute to mean what it says it means. That's not impossible. But the Union has in its favour the fact that the Legislature could have changed the language of the statute when it implemented the SEA - but didn't. 


So, what if the Board determines that the lockout is legal?

Obviously, the lockout will continue until the parties agree on a collective agreement. But such a decision would have implications beyond this specific case.

The thing is, this provision is one that goes both ways. Unions are under similar restrictions on strikes (s. 6-63(1)(b) of the SEA). So in this case, ATU would have also been prohibited from striking until the outstanding ULP was decided! If the Board rules that the lockout was legal, and that "any application" actually means "any related application", that will affect the ability of both employers and unions to engage in industrial action.

What if the Board determines that the lockout is illegal?

Just as workers who strike illegally can be ordered back to work, an employer who engages in an illegal lockout can be ordered to end the lockout and allow its employees to return to their jobs, probably with back pay for the time they were illegally locked out. But because the outstanding ULP has now been resolved, the City could simply re-issue the lockout notice. It would, I'm sure, be an embarrassment to the city, and it may further damage an already difficult collective bargaining relationship, but the City could legally do that. On the other hand, the Union would now be in a legal strike position; they may take advantage of the opportunity.

With an experienced mediator from British Columbia in Saskatoon to assist with negotiations, the parties may yet resolve their differences. But if they don't, the Board will have to rule on the Union's application.

Ironically, had the City waited two weeks, there would have been no question that the lockout had been properly issued - because the outstanding ULP was decided on October 3, 2014. [The City lost that one, by the way.]