This is not something I spend a lot of time thinking about, but I came across a case out of the Alberta Court of Appeal that got me asking (myself) some questions. The case is Armstrong v. International Brotherhood of Boilermakers Local 146. It's fact specific and may not be of broad application, but it's an interesting case.
The Court of Appeal considered:
- the right of a union to discipline a member, in this case for taking non-union work, and
- the right of that member to a full and fair disciplinary hearing.
Armstrong, a union member, informed his union that he accepted a position as a construction superintendent (a management position) with a non-union contractor. He did not seek their approval to his doing so. Article 17.1.20 of the Union’s constitution "prohibits members from accepting employment with a non-union contractor without prior written approval of the business manager". A hearing was arranged and, according to the Union's procedures, neither the Union or the member could be represented by an attorney (they could be represented by a member in good standing of the Union).
Only Union members would be allowed in the hearing room. Armstrong did not attend at the hearing. He was fined $5000 payable within 30 days and informed of his right of appeal. He did not appeal and did not pay the fine. He was suspended from the Union for failing to do so.
Section 26 of the Alberta Labour Relations Code provides that:
No trade union shall expel or suspend any of its members or take disciplinary action against or impose any form of penalty on any person ... unless that person has been. . .
(c) afforded a full and fair hearing, including the right to be represented by counsel . . .
The Court of Appeal held that there was a breach of Section 26 in this case:We do not say that the Union bears a positive obligation to advise members of their right to counsel. However, the Union cannot explicitly mis-inform a member about those rights, as was done here, without running afoul of s. 26. The actions of the Union are in clear violation of s. 26(c) of the Code and the Board erred in concluding otherwise. Armstrong’s failure to attend the disciplinary hearing is, in all the circumstances, ultimately irrelevant.
Section 151(i)(ii) of the Code provides that a union cannot discipline a member:
... for engaging in employment with an employer who is not a party to a collective agreement with the trade union if the trade union fails to make reasonable alternate employment available to that person within a reasonable time with an employer who is a party to a collective agreement with the trade union...
The Court found that "if a union fails to make reasonable alternate employment available with an employer with which it has a collective agreement, then it cannot discipline a member for taking employment elsewhere. " However, the Court noted:
As the Union points out, it does not preclude Armstrong from pursuing a career in management; rather, it requires him to obtain prior approval in accordance with the Union’s constitution if he wishes to remain a Union member while pursuing that career.
Makes sense, but when I read the case, it sort of struck me as a little counter-intuitive.
Armstrong didn't jump through the hoops of maintaining membership as set out in the constitution while he pursued non-union employment opportunities. I assume (though I don't know) that such requests would be common and where made would be granted as a matter of course? Who wants to hold someone back in their career? So maybe getting permission isn't a big deal.
In the end, though, for failure to pursue the proper approvals he was fined $5,000 and, ultimately, suspended for failing to pay the fine. I suppose, the Union constitution being a form of contract, I can understand the suspension part - no question, they need rules that govern the relationship between the union and the members and among members . But it's a bit of a struggle, for me at least, to get my head around a fine. Maybe that was of concern to the court as well?