A conundrum that unionized employers sometimes face, is whether and in what circumstances they can discipline union officials.
When a regular employee becomes a union official, the employee’s status changes significantly. This is because such an employee is called upon to discharge two very different roles which, by their very nature, are contradictory. On the one hand, the employee must continue to perform his/her role as an employee and abide by the rules and policies that govern the workplace. On the other hand, when he/she is acting as an union official, the employee becomes an integral part of the collective bargaining regime which requires him/her to diligently police the collective agreement and advocate vigorously on behalf of the rights of coworkers.
While union officials are generally able to perform their dual roles quite admirably, they sometimes cross the line between robust advocacy and insubordination. When this occurs, employers are uncertain about how they should respond.
Originally, arbitrators took the view that an employee could never be disciplined for their conduct if at the time they were acting in their capacity as a union official. This was based on a belief that blanket protection was necessary to protect the right of a union official to carry out their duties in an effective manner. Although arbitrators generally agree on the need to protect union officials in the course of carrying out their duties, the ‘blanket protection’ approach has since been rejected, and arbitrators have recognized the fundamental right of an employer to impose discipline for just and reasonable cause.
The law in British Columbia on the scope of shop steward immunity is found in Richmond Lions Long Term Care Society and Hospital Employees’ Union, BCLRB No. B375/94. This case recognized the need to place some limits on the concept of steward immunity in order to preserve the employment relationship between the employer and the union official. Vice-Chair Bruce noted that “the boundaries of steward immunity must be drawn in a manner that balances the need to preserve the viability of the employment relationship with the legitimate right of the union to carry out its responsibilities without undue interference from the employer'” He went on to note that such balance would be achieved by requiring proof of conduct that is both beyond the bounds of lawful union activity and detrimental to the interests of the employer.
When an employer is faced with conduct by a union official that is objectionable, it is important to remember that union officials are entitled to some leeway to engage in conduct that would normally attract discipline. This is because they need a certain amount of immunity in order to discharge their responsibilities in the context of an adversarial collective bargaining system. Nevertheless, not all conduct is protected and the employer must ask itself whether the conduct has crossed the bounds of lawful union activity. Immunity does not extend to conduct that falls outside the normal scope or range of union responsibilities. While each case will turn on its facts, the following are examples of the kinds of conduct that will warrant discipline being imposed on a union official:
- making statements that are malicious in the sense that such statements are knowingly or recklessly false;
- rude, aggressive, conduct that threatens or intimidates another individual;
- mounting a deliberate campaign to harass, publicly denounce or attack management;
- exhorting employees to participate in an illegal strike, or participating in an illegal strike;
- harassment of employees or management staff; and
- violent or abusive behaviour.