Zealous union advocacy or harassment?: Drawing the line

Union representatives sometimes get some extra perks. Super-seniority is one example. But do they get super-immunity from engaging in conduct that would otherwise be harassment too?

I’m going to give you the lawyer answer: it depends – but not usually.

This question has been at the forefront of many of my workplace investigations in the last few years. I have gained some helpful takeaways from reviewing the caselaw that I wanted to share.

The line between union advocacy and harassment

Union representatives have a right to advocate fiercely for their members. But that right is not without limits. These passages from Brown & Beatty[1] summarize the basic principles:

[W]hile arbitrators have generally been protective of the freedom of action that union officers require to perform their duties in a way that will preserve the integrity of collective bargaining, this protection is not absolute. The right of a union official to vigorously push the union’s point of view in deals with the employer must be balanced against the latter’s right to conduct its business free of harassment and abuse. As a result, union officials will be liable to discipline, like any other employee for statements that are malicious, in the sense that they are knowingly or recklessly false, or that threaten or intimidate or publicly attack their employers or a member of management. Nor would such protection extend to conduct which falls outside the normal scope or range of union responsibilities, such as abusive behaviour towards other employees or third party-contractors. … [A] union official discharging representational duties will generally have no, or very little immunity for abusive behaviour towards other employees rather than management.

In drawing the line between harassment and vigorous but appropriate union advocacy, these arbitrator insights are helpful:[2]

• A union representative who intimidates, bullies or harasses other employees in the workplace in performing union duties is out of bounds of acceptable union representative behaviour.
• Being a union representative does not provide latitude to be abusive under the guise of performing union duties.
• Immunity does not shield a union representative from their responsibility to refrain from bullying and abrasive behaviour toward employees in the bargaining unit.
• Status as a union representative does not provide an employee licence to be unnecessarily disrespectful and confrontational toward management and challenge management in any way at any turn.
• Aggressive ways of speaking and demeanour or personal insults are not acceptable.

Conduct between union members and at union meetings: the “spill over” effect

But what if the conduct happens at a union meeting between union representatives or towards a bargaining unit employee? Or not, strictly speaking, at the workplace?

Employers can investigate misconduct that happens during union business if the employer can show a greater institutional interest in investigating than the union’s institutional interest in avoiding scrutiny of its internal affairs. The assessment considers:[3]

• Employers have an interest in maintaining a safe, harmonious and effective workplace.
• Workplace relationships can be impacted by animosities caused by employees’ roles in the union.
• Employers have a proprietary interest in personal behaviour on employer property.

In weighing the employer and union’s competing interests, the nature of the alleged conduct and proximity in the workplace of those involved in the conduct are factors in determining whether there is a “substantial risk of spill over” to the workplace.[4] The more serious the conduct and greater proximity or interaction between the parties at work, the stronger the case that an employer investigation and response are warranted.

If some behaviour has taken place in the workplace, or there is evidence of the issues having already affected the workplace, the “spill over” has already happened and the employer’s obligation to maintain a safe, harmonious and efficient workplace is triggered.

Strike a balance

Union representatives have the right to advocate and carry out their duties fervently and zealously. But it must be balanced with the employer’s right to maintain a safe and respectful workplace. Acrimony is sometimes part of a union-management relationship. Yet where union advocacy teeters towards abusive, aggressive, intimidating or degrading conduct toward management or other employees – union members or otherwise – these rights become unbalanced, leaving targets unfairly exposed. Insisting that union advocacy align with your organization’s culture of respect and holding union representatives accountable for behaviour that steps over the line ensures a fair balance between union and management’s rights and obligations, and employees’ rights to a respectful and harassment-free workplace.   

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[1] Canadian Labour Arbitration, 4th ed.; Mount Royal Faculty Association v. Mount Royal University, 2011 CanLII 81627 (AB GAA) (Mount Royal).

[2] Sun-Rype Products Ltd. v. Teamsters, Local 213, 2010 CarswellBC 2047 (McPhillips); Toronto Hydro Electric System Limited v. Canadian Union of Public Employees, Local 1, 2015, CanLII 1698 (ON LA).

[3] Oakville (Town) v. Oakville Professional Firefighters’ Association (I.A.F.F., Local 1582), 2015 CanLII 23825 (ON LA).

[4] Mount Royal.