Law Times

Law TiMes • May 5, 2014 Page 13 www.lawtimesnews.com Changing union environment means new realities for labour, employment firms t's a difficult time to be a union in Canada. e percentage of private-sector workers who are union members has been dropping while governments have taken aim at public-sector unions over pensions and sick days. Even the right to strike has diminished with back-to-work legislation be- coming increasingly the norm at the federal level and some services offered by municipal govern- ments, such as the TTC in Toron- to, now declared essential. So how does that affect the labour and employment firms that represent unions or employ- ers? According to some lawyers, unions, like their corporate adver- saries, are becoming increasingly frugal with their legal spending. Glenn Wheeler, in-house counsel with the Canadian Office and Professional Employees, says the financial pressures are lead- ing unions to spend their money more carefully. "I think that the cost concerns in some cases leads to a useful rationalization around decision-making." Wheeler says he's seeing more unions starting in-house legal of- fices as they respond to the same pressures as corporations. "e billable hour is less and less attractive to our client, wheth- er it be a union or any other client," says Wheeler. "With external counsel, it's harder to control the cost." While in-house counsel aren't new to the union environment, lawyers say they're increas- ingly becoming the norm. Dan Shields, an employment lawyer and managing partner at Shields O'Donnell MacKillop LLP, oen finds himself across the table from union counsel. Shields says he has noticed a definite trend towards an increased reliance on in-house counsel. "Most of the larger local unions and the district councils do have in-house lawyers and it would be my observation that they are do- ing more than they would have done in the past," he says. Shields points to the expanding legal teams at the United Food & Com- mercial Workers Local 175 and Unifor as examples. But using in-house counsel isn't the only way unions are trying to keep costs down. Ac- cording to Wheeler, other prac- titioners and staff are handling some of the non-legal work lawyers would otherwise do. For instance, other staff will handle interviews with employees filing grievances and then send them to the legal team. In some cases, staff representatives are even dealing with arbitration matters. "Very oen, the reps who ne- gotiated the collective agreement are in a better position to know the language and are more famil- iar with it than the lawyer coming from the outside who is dealing with the collective agreement for the first time," says Wheeler. However, Wheeler says that in his experience, unions haven't started to rely on alternative providers like legal process out- sourcing firms and document review companies in the same way corporations have. Shields says that in addition to a greater use of in-house law- yers, he has seen fewer arbitra- tions going ahead. "Some things that might have been arbitrated before don't get ar- bitrated now because the unions may well be watching their money a little more," he says. According to Wheeler, that's not just about reducing costs but also an effort to demonstrate to members that they're not spending their union dues on issues affecting only a handful of workers. "Why should we spend our members' dues on things that aren't worthy of expensive litiga- tion?" he asks. Some employment lawyers, however, say they're seeing the opposite. Barry Kuretzky, se- nior partner at Kuretzky Vas- sos Henderson LLP, says some unions are more willing to push for legal action in order to show their members they're fighting for them. "In the past, in my opinion, they would have looked for reso- lution, but there's no doubt in my mind that they're trying to dem- onstrate to their membership that the money they're paying is well spent because they're going to fight the company," says Kuretzky about a case a he's working on. "Some unions will do every- thing they can to try to keep their representation going and will fight things to make it look like they're representing their membership," says Stacey Ball, a lawyer with Ball PC. "So it's like a political cam- paign [that says], 'We can actu- ally do something for you.'" In Shields' view, the atmosphere between unions and employers is actually getting healthier. "It's less about ideology and more about dispute resolution in the most cost-effective way," he says. "And if we as lawyers are contributing to that in some fashion, then I think we're doing our jobs." 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