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court allows immunity for union officials
September 4, 2002

The British Columbia Court of Appeal has restored the decision of the Labour Relations Board that had been set aside by the BC Supreme Court last year. In Pacific Press v. Graphic Communications International Union, the Court agreed with the Labour Relations Board that the doctrine of limited immunity from discipline for union officials arises from the concepts enshrined in the Code, not the collective agreement.

The union had grieved the suspension of a shop steward who had been disciplined for insubordination. The company provided the union with a schedule of its manning requirements and the union was required to supply competent men. The company was the sole judge of competency. The General Foreman and the Shop Steward disagreed about the competency of one of the men, the General Foreman requesting that the Shop Steward provide someone else for the shift. The Shop Steward refused and was suspended for insubordination. The union grieved.

The Arbitrator followed the traditional Wm. Scott analysis and reviewed the relevant arbitral principles including: work now, grieve later, the test for insubordination and union official immunity. The Arbitrator observed that while union officials were given considerable latitude in pursuit of their responsibilities, this was a case about following the lawful instruction of an employer. The grievance was dismissed.

The union’s application for review of the award under section 99 of the Labour Relations Code was heard in 1998 by a panel of three vice chairs: Paul Johnston, Irene Holden and Michael Fleming.

The Labour Relations Board characterized the issue of whether the employer had just and reasonable cause as a question of the law of the statute. The Board concluded that the principle of immunity for the shop stewards arose by implication from the just and reasonable cause provision of the Code. The Board referred to the general purposes found in section 2 and the board meaning of “dispute” and stated that:

“The intent of these Sections is that employers and unions engage in wider forums other than simply collective bargaining and grievance handling. That intent is further illustrated in other Sections (see for example, sections 53 and 54). Cooperation participation requires the parties to be placed on an equal footing. As a result, there is a need for a more expansive definition of immunity afforded to an employee acting in his or her capacity as a union official than is set out in the Award. The immunity afforded to union officials is not limited to collective bargaining or the grievance procedure.”

“Once an employee is chosen for union office, his or her status in the workplace undergoes a fundamental change. The right of the person to carry out his or her union duties must be protected. This is so in order to ensure the ability to carry out those duties, as well as ensuring the furtherance of the policy objectives set out in the Code. However, a union official is not entitled to abuse his or her responsibilities in the work process. Whenever a union official is acting in that capacity, there is a general immunity from discipline which is only lost where the person does something which undermines the viability of the employment relationship.” …

“In his capacity as a union official, [the Shop Steward] is afforded a general but not absolute immunity from discipline. The question is whether the Grievor did something while acting in his capacity as an official of the union which cannot be confined to the union/employer relationship.”

The Board referred the matter back to the arbitrator to consider the suspension in light of the union official status. The original decision was confirmed later in 1998 by an appeal panel of the Board consisting of Keith Oleksiuk, then chair, and two vice chairs, Hans Brown and Walter Pylypchuk.

On judicial review, the BC Supreme Court found the Board’s decision to be patently unreasonable, refusing to read into the Code an expansive definition of immunity from discipline for union officials. The Court ruled that the limited immunity for union officials flows from arbitral principles or the law of the contract rather than the law of the statute. The Court stated (at para 25):

“The principle of union official immunity from discipline is one of the considerations — perhaps an integral part of the inquiry — in assessing whether the employer had just and reasonable cause for some form of discipline; but that does not mean it is a principle implied in the Code. It may be, as the Board stated in its Reconsideration Decision, that the principle is ‘inextricable connected to the just and reasonable cause requirement’. But no matter how important or fundamental the Board may consider certain principles of industrial relations, without an expression of legislative intent, those principles cannot be said to be implied terms of the Code.”

The Union appealed this decision to the BC Court of Appeal. Mackenzie J.A., speaking for the court, stated:

“In my view, the union official immunity exception is a principle that limits just and reasonable cause. It does not depend on specific provisions of particular collective agreements although no doubt the agreements form part of the context in each case. It is linked to the Code by the explicit reference to just and reasonable cause in s. 84. Consequently it is part of the Board’s jurisdiction mandated by the Code. This view is confirmed by this court’s judgement in Sunshine Coast School District No. 46 v. Sunshine Coast Teachers Association (1997), 36 B.C.L.R. (3d) 237 (C.A.), which held that the appropriate standard of proof for just and reasonable cause was a matter within the jurisdiction of the Board.”

The result of the appeal being allowed is that the Labour Relations Board’s decision which was quashed by the BC Supreme Court has now been restored.

(click here for full text of the BC Court of Appeal judgment)
(click here for full text of the BC Supreme Court judgment)