I chose not to write anything about the lockout because as soon as it lifted, I got several versions of the in-camera discussions and to be honest, the stories shocked me. Instead I put together some excellent posts, columns and articles from other people observing the lockout.
The first comes from October 10th and is by University of Saskatchewan law professor Keir Valance who said back then that the lockout was illegal. He was right.
More importantly, though, the lockout may well be illegal, and so may be the City’s unilateral changes to the pension plan. And the Union quickly brought an application before the Labour Relations Board, arguing exactly that.
On Sept. 26, 2014, the Labour Relations Board issued an interim Order (LRB File No. 211-14). That Order didn’t end the lockout, but it did prevent the City from implementing any further unilateral changes to the pension plan. On October 14th, the City and the ATU are back in front of the Board to argue about the legality of the changes to the pension plan and to the legality of the lockout.
The language that potentially renders the City’s actions illegal is the same now, under the new
Saskatchewan Employment Act (“SEA”), as it was under the now-repealed Trade Union Act. Section 6-62(1)(l)(i) of the SEA reads:
6-62(1)It is an unfair labour practice for an employer, or any person acting on behalf of the employer, to do any of the following:
(l) to declare or cause a lockout or to make or threaten any changes in wages, hours, conditions or tenure of employment, benefits or privileges while:
(i) any application is pending before the Board…
["Pending" means that the hearing of the application has begun but the Board has not yet rendered a decision, so an Employer or Union could not, for instance, file a frivolous application just to prevent a lockout or strike.]
Unfortunately for the City, there was an Unfair Labour Practice (“ULP”) application pending before the Labour Relations Board when the lockout notice was issued. It appears the ULP was unrelated to the lockout – it related to discipline of a bus driver and was heard back in May – but the language in the SEA doesn’t say a “related” application, or anything of the sort. It says any application.
In order for the lockout and the pension plan changes to be legal, the City has to convince the Labour Relations Board that when the SEA says “any application”, the statute really means “any related application”. That flies in the face of the plain wording of the legislation. However, in fairness to the City’s position, most of the time the ULPs in such situations are related either to the lockout itself, or to the collective bargaining process that was underway. The intention of s. 6-62(1)(l) is to ensure that employers don’t “raise the stakes” on a ULP by trying to place economic pressure on a Union that has decided to pursue its rights before the Board. It’s about protecting the integrity of the Board’s process, and not allowing the rule of law to be undermined by economic power.
Still, the Board can’t simply decide what it thinks the law should be. It’s got to operate within the terms of the legislation that gives it its authority (the SEA). Without getting into the intricacies of statutory interpretation, the City would have to have some strong evidence that the Legislature somehow did not intend for the statute to mean what it says it means. That’s not impossible. But the Union has in its favour the fact that the Legislature could have changed the language of the statute when it implemented the SEA – but didn’t.
Okay, so it got weird from the start. I knew that law and when I probed members of council about it, they started telling me that the city didn’t like the law and it was ruining their strategy so the Board would have to overturn it. When I brought up voices like Valance, they looked at me like I was mad. Again, kind of weird.
Oh yeah, there is also this sentence from Valance from that post
Ironically, had the City waited two weeks, there would have been no question that the lockout had been properly issued – because the outstanding ULP was decided on October 3, 2014.
Saskatoon City Council wasted over $1 million of “ratepayers” (you know those of us they are trying to protect) money because they could not wait two week? Think about that for a while. If they had waited two weeks, it would have been a legal lockout and they probably would have won.
So now the Mayor wants a judicial review on the ruling. According to Valance, that stands little chance of succeeding.
If the City pursues judicial review of the LRB decision, the question will be whether the LRB’s interpretation of the SEA was “reasonable”. In my view, it was (though I hasten to add we still don’t have the Board’s written reasons for why it ruled as it did). The Board has the jurisdiction, responsibility, and expertise to interpret its governing statute. It’s owed deference in its decision. And in my view, finding in the City’s favour would have flown in the face of the plain language of the legislation, and would have flown in the face of the fact that the Legislature has apparently – at least twice – refused to change the section in question.
Whether ss. 6-62(1)(l) and 6-63(1)(b) are good or bad for labour relations is not the point. That’s for the Legislature to decide. And the Legislature has decided at least three times (in 1944 when it proclaimed The Trade Union Act, 1944; in 1993; and in 2013) that these sections were to stay. It should be up to the Legislature to change them.
So let’s get Les MacPherson’s take on it as he arrived at many of the same conclusions as Valance and also the Labour Relations Board (and might as well toss this in there, the Government of Saskatchewan in 1944, 1993, and in 2013)
I find myself mystified by this transit fiasco.
I’m no lawyer, but, to me, at least, it seems crystal clear that the lockout was illegal in the first place. The labour act says there can be no strike or lockout with a pending grievance before the labour board. There was a pending grievance before the labour board, filed by the union in June. On the face of it, the lockout was illegal.
City lawyers argued that the grievance was not relevant to negotiations. Except the act doesn’t say anything about relevance to negotiations. It says “any” grievance. The city, unwisely, was betting the board would read into well-established law what isn’t there. For that to happen would be almost freakishly rare.
The city further argued that the grievance was not really pending because the board had not started formal hearings. Except the act doesn’t say anything about whether hearings have started. It just says there can be no strike or lockout if a grievance is pending. Again, the city gambled that the board would interpret the law to mean what it doesn’t say. Losing this bet will cost Saskatoon taxpayers into the seven figures in refunded wages for lockedout bus drivers, for refunds on transit passes and for legal costs. For the damage done to those who rely on transit to get to work, to get to the store, to get the kids to daycare, there is no accounting.
The city argued that the law as it is invites labour turmoil. Any looming strike or lockout, otherwise perfectly legitimate, could be thwarted by filing a bogus grievance. Maybe so, ruled the labour board, but the law is the law. There are many legislated restrictions on strikes and lockouts, the ruling explained. This is one of them.
“It is not for this board to rewrite the Saskatchewan Employment Act in the fashion suggested by the city.” The city should not have to go to the labour board to be told the law is the law.
By appealing this decision, the city now will be asking the Court of Queen’s Bench to rewrite the law. Why the court would be any more likely than the board to do so, no one has explained. The board is appointed by a Saskatchewan Party government, and not because it is labour-friendly.
As for the labour turmoil predicted by city solicitor Patricia Warwick if the decision is allowed to stand, I wouldn’t bet on that, either. The prohibition on a strike or lockout when a grievance is pending is nothing new. It has been a part of Saskatchewan labour legislation since 1944, and has remained in place after multiple revisions and amendments in the decades since. The idea is to prevent undue pressure on the board while it adjudicates a grievance. Why a law in place for 70 years suddenly would cause labour turmoil is no more clear to me than it was to the labour board.
He summarizes with this
To me, it looks like council got lousy advice. On a case that might have gone either way, an expensive defeat is bearable. In this case, council was advised to gamble taxpayers’ money on a crazy long shot for something it could have had anyway, and legally, in two weeks. If I were the client here, I would be angry.
What kind of shocks me in this whole thing is that the city has several solicitors to draw advice from. They also have a lawyer on Council (Tiffany Paulsen) and someone who is a labour expert (Ann Iwanchuk) who also overlooked or ignored the act. There are also some other councillors who bragged to me about their knowledge of the labour act and were 100% confident that this was a legal lockout. How did the all get it wrong?
What goes on in that bunker where everyone gets it wrong and is utterly shocked when a ruling where all of these outside voices are saying you are going to lose goes against you?
There is a weird reality that council puts itself in sometimes. Remember snow removal when council voted against residential snow clearing. Then it snowed a bunch that winter and in an “emergency debate” on it, many of them played the victims and used phrases like “under siege” and seemed shocked that it snows in Saskatoon in the winter. The city wasn’t under siege but as councillors they were. It was all about them. Then the mayor starts to lecture manager who do not have the funds to do snow removal to do a daily press conference because it must be a misunderstanding right?
The same thing happened with the outrage over roads. The city for over a decade (it started when Atch was elected) cut back on road repair and maintenance. What happened? The roads fell apart and again council acted as it they were victims of this. Now we have the same thing. A hashtag, website, new pylons (no I am not talking about new politicians but actual pylons with “Building Better Roads” on them) and congratulatory radio ads about doing what other cities just do, maintain the roads. I don’t get it but it is a weird group dynamic. There are some intelligent members on council but for whatever reason the sum of the whole is far less then the total of the parts and the result is a very, very low functioning city council and we as a city suffer because of it.