/>iEmployers have long faced the challenge of managing the conduct of union representatives who push the boundaries of acceptable workplace behavior. Three recent decisions from Ontario arbitrators and the Québec Administrative Labour Tribunal shed light on the delicate balance employers must strike between maintaining a harassment-free workplace and respecting union representation rights. These cases make clear that the correct approach varies depending on whether the union advocate is an employee-representative, such as a steward or chief steward, or an external business agent. And they offer guidance on how similar situations may be handled effectively and in compliance with applicable labour laws.
Quick Hits
- An employer’s response to the overzealous union representative varies depending on whether the representative is an employee.
- While union speech enjoys considerable latitude, threats, intimidation, and persistent hostility that disrupt the workplace cross the line and lose protection.
- In the case of nonemployees, employers must avoid self-help remedies. They can file an employer grievance and seek interim relief from a neutral third party.
Overview of the Cases
The first case, involving Agropur Cooperative and Teamsters Local 647, centered on a chief steward’s termination of employment. While off duty but present at the workplace, he became embroiled in a heated parking-lot exchange with his manager after a colleague was fired. Sitting in his car with the dismissed employee, the steward was said to have verbally attacked the manager as he passed. The steward called the manager “heartless,” used profanity, and, most notably, told him he would “face the consequences”—a statement the manager interpreted as a threat. This was not the steward’s first brush with discipline; his record included a last-chance letter for previous aggressive outbursts.
The employer responded swiftly, suspending the steward pending investigation and terminating his employment within three weeks. The union grieved the dismissal, but Arbitrator Adam Beatty upheld the termination. The arbitrator found that the “face the consequences” remark, delivered in anger and accompanied by profanity, crossed the line from protected union advocacy into the realm of personal threat. With four recent disciplinary actions on his record, including a final warning for aggression, the arbitrator concluded that progressive discipline had run its course. The grievor’s apology, offered late and without full acknowledgment of his conduct, was not enough to tip the scales in his favor. The arbitrator emphasized the importance of documenting each step in the disciplinary process and noted that contemporaneous accounts—such as the manager’s same-night email—carry significant weight. Ultimately, threats that compromise safety or suggest violence will often override any defense based on union activity.
The second case, Canadian Nuclear Laboratories Ltd. and the Professional Institute of the Public Service of Canada, involved a member of the local union executive who also worked for the employer as a health physicist. His conduct included sending combative emails challenging the legality of the company’s digital mailroom and threatening a private criminal prosecution if his mail was opened. He also took an accusatory tone with in-house counsel over drinking-water standards, insisting on policy changes. Management viewed his communications as persistent, dogmatic, and bordering on harassment.
Instead of formal discipline, the employer issued a Letter of Expectation (LOE). Crucially, the LOE was explicitly labeled as nondisciplinary and stated it could not be used to support future discipline. It set out expectations for respectful communication and directed the union representative to channel future concerns through appropriate union or committee structures. A grievance was filed, claiming the LOE was disguised discipline and retaliation for union and health-and-safety activity.
Arbitrator Russell Goodfellow dismissed the grievances, finding that the LOE, by its express terms, was not disciplinary and could not form the basis for progressive discipline. The arbitrator recognized management’s legitimate interest in coaching employees on respectful communication, especially in fulfilling its statutory duty to maintain a harassment-free workplace. Importantly, the arbitrator found that the union representative’s emails reflected personal crusades rather than formal union functions, and even if they had been union-related, the LOE addressed only the manner—not the substance—of his communications. The case illustrates that a carefully drafted, nondisciplinary LOE remains a viable tool for addressing problematic conduct without overreaching into formal discipline.
The third case, Syndicat des employé(e)s du CIUSSS de l’Estrie-CHUS v. CIUSSS de l’Estrie-CHUS, highlights the limits of employer authority over external union representatives. Here, a union counsellor known for his caustic language—calling managers “incompetent,” “liars,” and worse—was accused by management of harassment. An external investigation recommended his exclusion from meetings with management. Acting unilaterally, the employer barred the union representative from the premises (except the union office) and from any communication with employer representatives, cancelled meetings upon learning of his attendance, and instructed managers to end meetings if he appeared.
The union challenged these actions, and Administrative Judge Myriam Bédard sided with the union. The tribunal found that the employer’s unilateral exclusion of the union representative amounted to unlawful interference with union activities, as it sought to dictate who could represent the union. Because the union representative was not an employee, the employer had no disciplinary authority over him; its remedies lay in filing grievances, seeking civil injunctions, or negotiating protocols with the union—not in self-help exclusion. The tribunal ordered the employer to cease its interference and to post the decision, but declined to award damages to avoid further inflaming the relationship. The case underscores that employers cannot dictate the identity of the union’s chosen representative when that person is not within their employ. If an external agent’s behavior arguably breaches harassment policies, the employer’s recourse is to engage the union to negotiate behavioral ground rules, or to seek arbitral or judicial interim orders to protect against ongoing harassment pending resolution of the issue by a third-party neutral.
Key Takeaways
Taken together, these cases offer five important lessons for employers navigating the complex terrain of union representation and workplace discipline.
First, employers may want to determine their strategy based on the scope of their authority: disciplinary measures are available for employee-representatives, but almost nonexistent for external business agents.
Second, it is crucial to separate the message from the manner—while union speech is afforded considerable latitude, threats, intimidation, and persistent hostility that disrupt the workplace cross the line and lose protection.
Third, employers may want to use a hierarchy of responses: starting with coaching and written expectations, escalating to progressive discipline and termination of employment for employees if necessary, and for nonemployees, relying on negotiation, mediation, and grievance/arbitration.
Fourth, documentation is key; immediate, detailed, and contemporaneous records were pivotal in the Agropur and Canadian Nuclear Laboratories Ltd. cases.
Finally, employers must fulfill their dual obligations: safeguarding a respectful workplace while upholding statutory representation rights. Balanced, procedurally fair responses are far more likely to withstand scrutiny.
By internalizing these principles and adapting their approach to the status and conduct of the union representative, employers can protect both their workforce and their relationship with the union.
