Let’s get the obvious out of the way. While most Unions do a good job of representing their members, some Unions could and should do a much better job of educating, communicating with, representing, and being accountable to the workers that they represent. The fact that this is uncontroversial speaks to the fact that there is no shortage of online commentary and media coverage about what Unions can do better.
It is rare however to see online content about what Unionized employees can do to better exercise their agency, speak truth to power, and navigate their relationships with their Unions in addressing employer misconduct. Rarer still is online commentary about what social justice-oriented law firms could or should do to better support, educate, advise, represent and otherwise work with Unionized employees who have become disenfranchised from their Unions in these situations.
This post is an attempt on my part to add to the discourse about the challenges faced by Unionized employees who are disenfranchised from their Unions when law firms use conventional approaches to working with them.
In the interest of transparency, my name is Ron Franklin and Franklin Law is a social justice-oriented law firm that is located in Toronto, Ontario that provides legal advice and representation to employees across Ontario, many of whom are Unionized. As the founder of the firm with roots in the legal clinic system and a strong commitment to workers’ rights, I believe that informed and empowered employees make Unions more accountable, and accountable Unions create possibilities for stronger, broader, and more impactful labour movements.
Law firms play a relatively small but important role in the big picture. It is important for us to be critical of, and to reflect about, the ways in which we practice and the challenges that disenfranchised Unionized employees face when they work with us. It is equally important for law firms to discuss shared challenges and experiences in an open and public way without fear of competition or embarrassment. In my experience, many disenfranchised Unionized employees need help but can’t find relevant legal supports and information in the community or online, and many lawyers and paralegals want to support these employees but are constrained by their scopes of practice, conflicts of interest, and/or institutional clients. Ultimately, I believe that we can help each other and accomplish a lot more if we share ideas and work together instead of in silos.
Turning to Franklin Law, we have spent years supporting, educating, advising, and representing Unionized employees who have become disenfranchised from their Unions for one reason or another. Over those years, we have seen first-hand the precarious situations that these workers often find themselves in, especially when they are unable to secure the support they expect or need from their Unions in the face of serious employer misconduct.
Many of them feel vulnerable, isolated, and angry. Many of them feel betrayed by their Unions. Many of them feel powerless to hold their Unions accountable. Many of them are desperate to find a lawyer or paralegal who will listen to them and tell them that they have a strong case and can pursue legal redress. Many of them consult with us about filing duty of fair representation complaints or suing their Unions. Many of them are at incredibly high risk of being misled or exploited by legal professionals who are primarily interested in profit. Invariably, their concerns are serious, and their experiences are compelling and troubling.
While no two lived experiences are the same, there are a number of concerning themes that I have observed that speak to the challenges that disenfranchised Unionized employees may face when they engage our services through one-on-one consultations. Although we can and frequently do represent employees in situations in which their human rights have been violated or in which they have been reprised against for health and safety reasons, the employees that consult with us who have been disenfranchised from their Unions often raise concerns that do not fall within those areas. Less frequently, we represent employees in duty of fair representation complaints and in civil actions against their Unions. It is rare, however, for disenfranchised Unionized employees to allege Union misconduct of a nature that might support a successful duty of fair representation complaint or create space for a viable civil action. As a consequence, we frequently spend a significant amount of time advising employees about the challenges that they will face in bringing civil actions or establishing that their Unions have represented them in an arbitrary, discriminatory, or bad faith manner, and how they might repair their relationship with their Unions, communicate more effectively with their Unions, and salvage what goodwill remains between them and their Unions.
While generally appreciative of the information and legal advice that they have received, some disenfranchised Unionized employees lament the fact that they may have been able to avoid the expense of a consultation if their Union, a government agency, or someone else had simply provided them with basic legal information about their rights, what they could reasonably expect from their Union, and how they could communicate more effectively and constructively with their Union.
In my experience, one-on-one consultations like these represent the status quo. They are emblematic of conventional approaches to lawyering in which a premium is placed on solicitor-client privilege and on prioritizing an employee’s interest in securing legal advice on the basis of their own experience after they have experienced injustice at work. Little if any space exists within that context to connect that employee’s experience with the experiences of other Unionized employees, and use those experiences to proactively support, educate, and empower similarly situated employees before problems arise.
In my view, while one-on-one consultations can be invaluable and serve some disenfranchised Unionized employees extremely well, they are untenable as a means of engaging disenfranchised Unionized employees as a group, promoting increased accountability within Unions, and building a stronger workers’ rights and labour movement. They are relatively expensive, often do little to promote access to justice, and do little to address the root causes of the issues that many of these workers face. They “miss the forest for the trees” insofar as they support one employee at a time, do not address broader structural issues, and fail to consider other ways of supporting, educating, and empowering disenfranchised Unionized employees with a view to preventing and avoiding problems before they arise.
While reflecting on these issues, I realized that disenfranchised Unionized employees might benefit from a resource that is relatively inexpensive and accessible, is available to groups of employees, and focuses on the root causes, common needs, and shared experiences that have emerged during consultations over the years. In my experience, those root causes, common needs, and shared experiences include but are not limited to the following:
- The absence of basic legal information available to Unionized employees about their rights in relation to their Unions;
- The creation of heightened and unreasonable expectations amongst Unionized employees;
- Misleading legal information provided to Unionized employees by their Unions and others;
- Difficulties that Unionized employees face in communicating effectively and persuasively with their Unions; and
- The uncertainty, insecurity, and doubt that Unionized employees experience in making informed decisions about whether or not to file a duty of fair representation complaint, file a human rights application, file a reprisal application, pursue a civil action, take a more conciliative or restorative approach, or do nothing at all.
A frequent critique of social justice-oriented lawyers is that we are all “doom and gloom”. We have plenty to say when critiquing systems and identifying problems but far less to say when identifying solutions. That critique weighs heavily on my mind and I would be remiss if I did not take a moment to pass on some information about one of the solutions that may help to address law firms’ overreliance on conventional one-on-one consultations.
In January of 2024, Franklin Law launched its Duty of Fair Representation Self-Help Video and Tool Kit to provide disenfranchised Unionized employees with a downloadable, relatively inexpensive, accessible, and proactive, non-consultation-based resource that they can use to get reliable legal information and practical insights before problems arise and/or before deciding whether or not to consult with a law firm. Our hope is that this resource will not only save disenfranchised Unionized employees a lot of money but will also help a much larger group of them to transition from a place of doubt, insecurity, and uncertainty to a place where they possess the legal and practical information necessary to better navigate their relationships with their Unions and make decisions about their legal options in an informed manner from a position of confidence.
The video focuses on the duty of fair representation under section 74 of the Labour Relations Act, 1995. It positions duty of fair representation complaints as a legal option of last resort, highlights some of the pitfalls that other employees have faced when bringing those complaints, and highlights steps that employees can take to avoid those pitfalls. Perhaps more importantly, the video focuses on other steps that disenfranchised Unionized employees may want to take, and other options that they may want to consider, before consulting with a lawyer or filing a duty of fair representation complaint on their own. The tool kit supplements the video and provides links to important legal resources and templates that employees can modify and use to communicate constructively with their Unions. It also includes a sample duty of fair representation complaint for reference purposes.
Back to where I began. Ultimately, we need to do a better job of sharing our stories, challenges, and ideas, and I encourage you to share yours openly and publicly with others who are committed to promoting workers’ rights and strengthening the labour movement. If you are a Unionized employee, or if you are from a law firm, legal clinic, advocacy group, or other organization that is in need of resources to refer disenfranchised Unionized employees to, I encourage you to download the Duty of Fair Representation Self-Help Video and Tool Kit, let others know about it, and pass on your feedback. We are open, receptive, and committed to improving and refining the resource over time. Thank you for taking the time to read about Franklin Law’s efforts to empower disenfranchised Unionized employees in Ontario by moving beyond conventional one-on-one consultations. For more information about the services that Franklin Law can provide please visit us at: https://franklinlaw.ca/.