The following analysis focuses on two unrelated cases before the Ontario Labour Relations Board (hereinafter the “Board”), which consider whether it is an unfair labour practice to expel a member from a trade union after that member has joined another union. In other words, the following assesses how dual unionism is dealt with in under the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (hereinafter the “Act”).
The Carpenters’ District Council of North America’s v. Labourers International Union of North America, 2013 CanLII 28943 (ON LRB)[Labourers’ case]
Under section 96 of the Act, applications were brought by the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (hereinafter the “applicants”) against the Labourers International Union of North America and Labourers International Union of North America, Local 1059 (collectively hereinafter the “respondents”).
The applicants alleged that the respondents violated section 76 of the Act when they took the position that a member (hereinafter “Garcia”), who had joined a rival trade union, could not also remain as a member with the respondents. More specifically, the respondents’ upon learning that Garcia was considering joining the applicants, threatened to expel Garcia from the respondents. Nevertheless, Garcia joined the applicants. Once again Garcia was approached by representatives of the respondents and was told he would be expelled if he did not renounce his membership with the applicants as well as that he would be required to quit his job at a specific job site. Garcia did not quit his membership with the applicants and therefore, the respondents began proceedings to expel Garcia and to disentitle him to his years of accrued benefits under the respondents’ collective agreement. Garcia did not formally resign from the respondents contrary to their constitution.
The respondents argued that the application did not establish a prima facie violation of the Act and made a motion to have the applicants’ application dismissed. This motion was heard and the Board issued a decision on February 2, 2012 (hereinafter the “first decision”).
In the first decision, the Board agreed with the respondents and concluded that “it is not intimidation or coercion to expel a person from membership on the basis that they support another union.” (para 9). The Board also noted in the first decision that although the consequences may seem unfair and harsh, it does not change the respondents’ legal entitlements to enforce their rules of membership. The Board does not take a supervisory role with respect to the enforcement or internal union rules, matters and processes.
Between the time the motion was argued and the first decision, Garcia was expelled when a regular membership meeting of the respondents was held prior to the respondents Trial Board. However, the Trial Board did find Garcia “guilty of violating the policy and constitution of the Labourers prohibiting dual unionism.” (para 7). Garcia applied for an internal appeal of the Trial Board’s decision under the respondents’ constitution. Before the appeal was heard, but following the first decision, Garcia’s benefit coverage had been terminated.
As a result, shortly after the first decision was issued, the applicants brought a second application, alleging again that the respondents had violated section 76 of the Act. The applicants argued that the respondents, contrary to their constitution, failed to stay the penalty given by the Trial Board until the internal appeal process was concluded, which amounts to an unfair labour practice. The applicants also alleged that the respondents were posting misleading and inaccurate information with respect to the first decision. The relief sought by the applicants included quashing Garcia’s expulsion and reinstating his membership with the respondents. The applicants also filed a reconsideration of the first decision.
The Board dismissed the applicants request for reconsideration of the first decision, but did not use their discretion to dismiss the outstanding labour relations issue.
In a decision penned by the Chair of the Board, the principle issue for consideration related to this discussion was whether the second application described in the preceding paragraphs should be allowed.
DECISION OF THE ONTARIO LABOUR RELATIONS BOARD
The Board concluded that the allegation that the respondents’ failure to exhaust the internal appeal procedure and premature implementation of the Trial Board’s decision were not violations of the Act. The Board noted that given its first decision that “the Labourers charging and expelling Garcia in accordance with their constitution and bylaws … did not constitute a violation of section 76 of the Act” (para 19), it was difficult to comprehend and reconcile how another allegation related to the internal procedures of a union could be considered a violation.
In relation to the dissemination of misleading and inaccurate information, the Board again stated that “if the fundamental action … is not a violation of the Act, it is difficult to understand how details about its implementation … or overstating the conclusion of the Board reach about it in a union newsletter, can therefore convert what is not intimidation into intimidation.” (para 21). The Board did not find the events following the first decision made a prima facie case for a violation of the Act and therefore would not grant the relief requested.
In addition to dismissing the application, the Board was persuaded by the respondents’ submission “that to allow the second application to proceed ‘would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.’” (para 24).
Watson  O.L.R.D. No.784, 241 C.L.R.B.R. (2d) 271
Several members of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (hereinafter “Boilermakers”), including the former Business Manager (hereinafter “Watson”) of its Local (128) invited the Brick and Allied Craft Union of Canada (hereinafter “BACU”) to form a division known as the Canadian Brotherhood of Boilermakers (collectively herein the “applicants”). As a result BACU began an organizing campaign “with a goal of displacing the bargaining rights held by the Boilermakers” (para 5). This involved some of the applicants actively soliciting other Boilermakers’ member to join BACU or its Boilermakers’ division. In response, Boilermakers, its Local 128 and its officers and agents (collectively hereinafter the “respondents”) “took steps to dissuade their members from joining the BACU” (para 5), including expelling some of the applicants from membership with Boilermakers and its Local 128.
The applicants brought an application to the Board under section 96 the Act. The applicants sought a declaration and relief from some of the individual applicants’ expulsion from membership in the respondents’ union. The respondents sought to dismiss the application, “asserting that the applicants had not made out a prima facie case.” (para 2). The respondents also argued that there was no live labour relations issue.
The applicants argued that the respondents violated section 5 of the Act, which states that:
Every person is free to join a trade union of the person’s own choice and to participate in its lawful activities.
The respondents had made it clear that if members, including some of the applicants, were to join BACU they would have their membership expelled, which would result in termination of eligibility for referral to employment through the Boilermakers’ hiring hall.
Originally, after hearing the respondents’ submissions, the Board found the applicants had established a prima facie case. However, when the matter reconvened to hear submissions from the applicants with respect to the arguments made by the respondents, the respondents brought a motion for reconsideration. The request for reconsideration was granted to determine if the finding that the applicant established a prima facie case was inconsistent with the decision in Labourers’ case. During this reconsideration the Board stated that the decision, “made it clear there was a significant difference between causing someone to be dismissed from their current employment by reason of being a member of a rival trade union and depriving some one of their future work opportunities through a hiring hall if they join or support a rival trade union.” (para 7). At that point the Board acknowledged the new uncertainty about whether the applicants established a prima facie case. The matter was adjourned.
The Board was tasked with determining whether Boilermakers’ conduct constituted a violation of the Act.
DECISION OF THE ONTARIO LABOUR RELATIONS BOARD
The applicants argued that s. 51(2) of the Act, which protects the individual from losing employment, renders the Board’s pervious findings that terminating someone’s membership is not a violation of the Act inapplicable in the hiring hall context. The Board disagreed with the applicants’ submission, stating “[s]ection 51 of the Act does not preclude a trade union from expelling a member who has joined another trade union.” (para 17). The Board noted the significance of the opening words of section 51(“despite anything in this Act”), which in their view, allows a trade union to take all steps to enforce the provisions of the collective agreement. To put it bluntly, the Board held that “there can be no doubt that making it clear to members that they will be expelled from membership if they join or support another trade union does not contravene the Act.” (para 22)
Further, the Board held that a trade union is entitled to impose sanctions on its members, in accordance with its constitution and by-laws, who choose to join and/or support a rival union that is trying to secure bargaining rights. From this right flows the right of the trade union to inform its members of the consequences of being expelled, which is not in and of itself a contravention of the Act.
The applicants also argued that the Act does not allow a trade union to deprive an expelled member of work opportunities and/or threaten such economic consequences that would result in such deprivation. However, the Board, relying on the Labourers case stated that “[t]he principle that expulsion from a union for joining or supporting another union and the consequent economic impact that result as a consequence of that loss of membership cannot be a violation of the Act” (para 26).
As such, the application was dismissed in its entirety.
From both decisions discussed above, it is clear that a trade union is entitled to expel a member, in accordance with its constitution and by-laws, if that member joins or supports a rival union. This is true even if the expulsion appears harsh, unfair or has long term economic consequences. Both trade unions and union member should be aware of their rights and obligations under the trade union’s constitution and by-laws, particularly because of the Board’s apparent reluctance to take on a supervisory role in internal trade union procedures.