Saskatchewan Government v. General Employee’s Union [SGEU], 2011 SKPC 139

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 139 Date: August 26, 2011 File: 380 [2010] Location: Saskatoon _____________________________________________________________________________ Between: Saskatchewan Government and General Employee’s Union [SGEU] - and - Antonia Gossner Heather L. Robertson For the Plaintiff Jon W. Danyliw For the Defendant _____________________________________________________________________________ JUDGMENT B.M. SINGER, J _____________________________________________________________________________ Introduction [ 1 ] The Plaintiff, is a trade union, and sues the Defendant pursuant to

section 36 of The Trade Union Act. [1] That

section provides, inter alia, that a trade union may assess a fine upon any member who has continued to work for an employer during a legal strike. The fine assessed shall not exceed the employee’s net earnings during the strike and the union constitution must provide for such a fine or assessment. Section 36(6) states:

A fine imposed on a member … is deemed to be a debt due and owing to the trade union and may be recovered as a debt owed pursuant to a contract in a court of competent jurisdiction. [ 2 ] The Defendant concedes that during a legal strike she worked for the employer. She agrees that the union held a hearing and assessed a penalty of $6,964.00, a sum equal to her net earnings during that period. She agrees that the union constitution permitted this fine. The Defendant, however, alleges that at the time of the strike she was not a member of the trade union. She also alleges that

section 36 of the Act infringes the Canadian Charter of Rights and Freedoms [2] and is of no force and effect. Facts [ 3 ] From December 6, 2006, to February 7, 2007, a lawful strike occurred when employees of the North Battleford Youth Centre walked off the job, as part of a larger strike of the P.S.C. Bargaining Unit of SGEU. SGEU was the certified bargaining agent for approximately 12,000 – 14,000 government employees.

The Defendant worked for a number of years as a supervisor for the Government of Saskatchewan in the Young Offenders Branch of the Department of Corrections and Public Safety at the North Battleford Youth Centre. Approximately 18 months before the strike she had been assigned, temporarily, to an out-of-scope position – Acting Director of Operations – at the Youth Centre. The collective agreement provided for union members to act temporarily in out-of- scope positions.

The agreement further provided that temporary out-of-scope employees continued to be union members, continued to maintain their seniority, continued to pay union dues and to have all the rights of union members including the right to vote on strike action. The pay

schedule for temporary out-of-scope employees was based in part on the negotiated salary of in-scope employees. [ 4 ] The evidence established that during the time the Defendant worked in the out-of-scope position she continued to pay union dues and contribute to the union sponsored Long Term Disability plan. She paid these dues and fees before the strike, during the strike and after the strike. [ 5 ] The Defendant admits that she continued to work in her position of Acting Director of Operations during the strike.

Indeed it was part of her job, ironically, to make the necessary preparations for management for the orderly operation of the Youth Centre before and during the strike. She felt she had a personal duty to continue in this job. The Defendant approached union officials to determine what would happen if she “crossed the picket line”. She was told that she would be fined. She sought to determine the rationale for this but was unsatisfied with the answers given to her. She was offered jobs by the union officials during the strike, such as phoning members, which did not require her to be on the picket line.

She did not attempt to give up her membership in the union but determined that she would work for the employer because she was in a management position and felt that she should continue to manage. [ 6 ] The constitution of the union sets out a procedure for punishing employees who continue to work during a strike. Following that procedure, the Defendant was invited to a hearing on June 11, 2007. She did not attend. A fine of $6,964.02 which was equal to her net earnings during the strike was assessed. The Defendant did not appeal that fine, as was her right.

Issues Was the Defendant, at the time of the strike, a union member and therefore subject to union discipline? Is

section 36 of The Trade Union Act unconstitutional as infringing on

section 2(

d) of the Charter ? [ 7 ] The constitution of the union does not mention temporary out-of-scope members, indeed the only qualification for eligibility for membership is that the employee be employed within the bargaining units of the union pursuant to orders of the Labour Relations Board. To receive designation as members in good standing, employees must sign an application for membership and be actively employed in a bargaining unit of the union. [3] [ 8 ] It is clear that everyone, including the Defendant, at the time of the strike, thought she was in the union. She continued to pay dues during the strike.

She continued to maintain the benefit of the union sponsored Long Term Disability Benefit program and she continued to maintain her seniority. [ 9 ] She also benefitted from the negotiated benefits that the union acquired in their new Collective Agreement after the strike. [ 10 ] It is clear that her position as a temporary out-of-scope manager did not affect her union membership. To now say that she was not a “member of the union” is insincere and self-serving. This “late in the day” assertion does not provide a defence to this lawsuit.

[ 11 ] The Defendant argues that

section 36 of the Act, which allows for unions to require union membership as a condition of employment, coupled with the right of a union to enforce penalties for working for an employer during a strike, as a civil debt, violates the worker’s right not to associate. [ 12 ] The freedom from association was canvassed by the Supreme Court of Canada in the very context of union security arrangements. In Levigne v. Ontario Public Service Employees Union [4] the type of union security arrangement as set out in section 36(1) and 36(3) of The Trade Union Act was challenged.

The Court unanimously stated that the union security rules were valid under the Charter . McLachlan J. (as she then was) described the very limited circumstances where there might exist a freedom from association. She stated: [5] The justification for the right not to associate would appear to be the individual’s interest in being free from enforced association with ideas and values to which he or she does not voluntarily subscribe.

She goes on to describe this as coerced ideological conformity. [ 13 ] Two judges stated that a freedom from association should not be recognized at all and three justices held that any violation that might exist from freedom from association was justified, in these circumstances under

section 1 of the Charter . [ 14 ] The Supreme Court also considered whether a worker’s rights were violated by a “closed shop” statutory system in R. v. Advance Cutting and Coring Ltd. , [6] holding that they were not. The majority held that in the particular circumstances before them the right from association was not engaged. [ 15 ] If there is a freedom not to associate to be found in

section 2(

d) of the Charter , any such freedom would depend upon the circumstance giving rise to its assertion. The purpose of

section 36 is to advance the interests of workers by providing for union security. Allowing members to opt out of membership at any time would create chaos and destroy the delicate balancing of interests created over many years of labour relations and collective agreements. [ 16 ] In the case before me, freedom from association does not arise. The only consistent reason given by the Defendant for working for the employer was a sense of duty she felt towards that employer. After being an acting manager for 18 months her loyalty was with the other managers. While she felt she faced a dilemma, her membership in the union required her to take

part in the strike. She did not opt out of membership in the union, nor did she forgo her union responsibilities for reasons of conscience or coerced ideological conformity. She was not exercising her right to be free from association but rather she was acting in accordance with her loyalty to her employer’s management staff. She consciously decided to work for the employer even though she knew she would be subject to union discipline. Conclusion [ 17 ] The Plaintiff has proven its case.

The defences raised by the Defendant are not accepted and therefore Plaintiff will have judgment against the Defendant as follows: Judgment in the amount of $6,964.02 Costs in the amount of $70.00 Dated at the City of Saskatoon this 26th day of August, 2011. _______________________________________________ B.M. Singer J.