By Grace Levy, Articled Clerk
In December 2021, the Canada Industrial Relations Board reaffirmed its longstanding practice of not intervening into union disciplinary decisions, except when discipline is discriminatory.
In David Nice v. General Longshore Workers, Checkers, and Shipliners of the Port of Saint John, N.B., Local 273 of the International Longshoremen’s Association, 2021 CIRB 1000, the Board considered whether ILA Local 273 violated sections 95(f) and (g) of the Canada Labour Code when it suspended the Complainant’s membership after he failed to pay a Union fine.
Background Facts
The Union levied a fine against the Complainant for crossing a third-party picket line. The picket line was organized by a different group in opposition to the shipment of armoured vehicles to Yemen. The Complainant’s membership in Local 273 was suspended after he refused to pay the fine.
The Complainant alleged the Union breached 95(f) and 95(g).
The Canada Labour Code
95(f) and (g) are two of the few Code provisions governing a union’s relationship to its members outside of the employment relationship, i.e., beyond the Duty of Fair Representation. The Code reads as follows:
95 No trade union or person acting on behalf of a trade union shall
(f) expel or suspend an employee from membership in the trade union or deny membership in the trade union to an employee by applying to the employee in a discriminatory manner the membership rules of the trade union;
(g) take disciplinary action against or impose any form of penalty on an employee by applying to that employee in a discriminatory manner the standards of discipline of the trade union;
Scope of review under sections 95(f) and (g)
The Board agreed with the Union that, under section 95 of the Code, the Board has limited authority to interfere with internal union affairs. Sections 95(f) and (g) do not empower the Board to consider whether a union made the correct or best decision, only whether the union acted in a discriminatory manner when imposing the discipline or penalty, or applying membership rules.
Finding
The Board found that, given its limited scope of review, it would not rule on whether the Union was ‘right’ in deciding to respect the picket line. The Board would not interfere with the Union’s position that the protest was a ‘picket line’ and that it should be respected as such. Finally, the Board concluded that it would not review or second guess the Union’s assessment that the Complainant’s actions were in breach of a rule, as it was up to the Union to decide what standard of conduct is in breach of its by-laws and constitution.
In this case, all members who decided to cross the picket line and report to work were charged and found guilty. Each member had the same opportunity to appeal their charges, was treated with respect, and faced the same penalty of a monetary fine and a written commitment. Thus, the Complainant allegation that he was treated in a discriminatory manner failed.
Key takeaways for unions
When considering membership rules or standards of discipline, the Board will not look into whether the decision was ‘right’. Instead, it will consider the following:
1) Has the union clearly articulated the applicable rules or standards?
2) Have members been made aware of their rights and responsibilities?
3) Has the union acted in a just and equitable manner – not singling out a particular member for individual treatment?
4) Have the union’s proceedings been conducted fairly?
Democratically elected union representatives, governed by the Code, should not be afraid to impose rules in furtherance of their members’ collective interests and enforce those rules as necessary to achieve their objectives. The Board will not sit as an appeal panel for members who disagree; it will only intervene if the rule, or its implementation, is discriminatory.
* This information is not legal advice. The answers to these questions will vary, depending on the circumstances of each case. Consult legal counsel for information and advice relevant to your individual circumstances.
Photo from: https://www.sjport.com/