A union drive by Toronto city hall political staff took a bitter turn last month, with the union and the city blaming each other for delays at the Ontario Labour Relations Board — and experts warning the entire case could be upended if it drags past the municipal election this fall.
The process to join a union got rolling in March of last year, after roughly 170 political staff voted on membership cards. The Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO) then applied to certify a bargaining unit on behalf of the employees who work for Toronto’s elected officials.
The city filed its objections and the board sealed the ballot box until hearings could be held to determine key areas of dispute, including who the actual employer is — the city or the individual councillors.
Since then, more than half of Toronto’s councillors have sought intervener status in the hearings — originally scheduled for January — which are set to begin Friday.
The city is expected to present its case first, with dates scheduled through May, June and possibly September. Councillors are expected to eventually testify.
Here’s a look at how things have turned testy.
A public display of frustration
The case took a dramatic turn in March when staff who wanted to join the union, frustrated by procedural gridlock, launched a public campaign.
The campaign through AMAPCEO, which includes social media posts, urged Torontonians to pressure the city and councillors to drop their legal challenges.
It accused both the city and councillors of “wasting untold taxpayer dollars” to fight the union effort and of “delaying the process.” It cited “mental distress … harassment and intimidation” as among the reasons staff wanted to unionize.
The campaign led to an emergency meeting on May 1 at the labour board to determine if the hearings could even start on Friday.
There, Jack Siegel, a lawyer representing the 15 city councillors who are interveners, took AMAPCEO to task.
“I do want to express our extreme disappointment that the union would engage in a tactic that literally amounts to intimidation of … witnesses,” he said.
Siegel also argued that the ongoing campaign was a “public litigation” of an active case and a “potential breach” of the Labour Relations Act. Though he said he may file a complaint with the labour board about the union’s tactic, he didn’t think there was any basis to toss the case entirely.
Marisa Pollock, AMAPCEO’s main lawyer, responded by saying the union would fight any complaint filed.
“You don’t have the power, with all due respect, to make a determination and muzzle whoever it is that’s talking based on mere assertions,” Pollock told Siegel.
Siegel also acknowledged that a complaint might mean “lengthening or complicating” the case even more. He did not respond to the Star’s requests for comment.
Delay sparks finger-pointing
The city and councillors’ lawyers have rejected the union’s accusations that their side is the reason the hearings didn’t start months ago, as initially planned.
The city’s lawyers sent a pair of terse letters to the board last month that were obtained by the Star.
Instead of the union meeting its own deadlines to give everyone the necessary documents for its case, it “has instead opted to publicly lobby City councillors to agree to certification,” reads an April 2 letter from lawyers Michael Kennedy and Craig Rix, who did not respond to requests for comment. “The Union is seeking to apply public pressure to circumvent Board processes and its own obligations and timelines.”
The letter calls the campaign “inflammatory,” adding that if “the Union persists in delaying the proceeding, while simultaneously engaging in a misinformation campaign, the City reserves the right to seek dismissal of the Union’s applications as an abuse of process.”
In an equally blunt response, Pollock said in a letter to the board on April 7, and obtained by the Star, that the city’s claim AMAPCEO is delaying the process is “absurd.”
“It is clear that the City is simply lashing out in response to what it perceives as ‘bad press,’” Pollock’s letter continued, referring to a Star article that covered the public campaign.
Pollock’s letter detailed the delays over the past year that prevented the hearings from originally starting in January. Most notably, she wrote, the city said in December it wouldn’t be able to share about 16,500 documents for the case on time.
When it did produce them in February, almost all had redactions that Pollack said were unnecessary. The city sent a new batch in March, forcing AMAPCEO to review the material again.
A complex case
Carlo Fanelli, an associate professor of work and labour studies at York University, said it can take as little as a few weeks to certify a bargaining unit if it is a straightforward case — but Toronto’s is not.
“In more complex cases, generally, these are the disputes that extend it: Who is the true employer? Who belongs in the unit? Is it a viable unit? What are the job classifications?” said Fanelli, outlining the key questions the board needs to rule on before opening the ballot box. He added these disputes are compounded by objections from more than half of city council.
As a result, lawyers from all three sides — the union, the city and the 15 councillors — must write submissions, collect evidence, prepare witnesses and legal arguments in what experts describe as an unprecedented case.
At the May emergency meeting, even the city’s lawyer Kennedy referred to the case as “large” and “ponderous” in nature.
The role this October’s election could play
Harry Glasbeek, professor emeritus at Osgoode Hall Law School, said the Oct. 26 election will likely cause a turnover of councillors and their employees, which means the ballots cast last year may no longer be an accurate reflection of how many staff want to join a union.
“Any delays are good for the employers, as a rule of thumb,” Glasbeek said. “What the workers are exercising (with the campaign) is free speech and public support. That is not in and of itself wrongful.”
Fanelli said he doubts the matter will be resolved before the election, which might “upend” the case depending on how the board rules.
The city could argue a new vote is needed if staff turnover changes the makeup of the group. It could also use that turnover to support its position that a bargaining unit isn’t appropriate.
At the same time, Fanelli said, the union could argue that turnover is exactly why the board should open the ballot box, which is what it wants.
To prove they have a common interest — another key question in the hearings the city is disputing — the union could also argue “all staff are funded through the city and … they share working conditions like precarious employment tied to elections,” Fanelli said.
