In many workplace settings, one employee or union will have strong personal or financial reasons to claim similar compensation or terms of employment to what their co-workers enjoy. A recent Canadian labour arbitration decision involving Air Canada confirms, however, that simply want the same as what others have or claim does not satisfy the legal test for intervening in a case brought by others.
In his decision in Air Canada and CUPE, (2017) 283 L.A.C. (4th) 100, arbitrator Larry Steinberg dismissed an application by Uniform which sought intervenor status in a case brought by a different union, CUPE.
The underlying CUPE arbitration involved a grievance alleging breach by Air Canada of a promise made during collective bargaining concerning travel passes. Unifor has filed its own grievances with respect to the same issue, but also sought to participate in the CUPE case.
In support of their application to intervene, Unifor claimed that it had a direct and substantial interest in the outcome of the CUPE proceeding.
Air Canada opposed Unifor's request, in part based on the principle that an arbitrator only has jurisdiction to grant remedies to a union and persons covered by the collective agreement under which the grievance is filed. In addition, Air Canada as employer also argued that Unifor's request amounted to an improper attempt to consolidate the CUPE and Unifor grievances.
In dismissing the Unifor application, the arbitrator provided detailed reasons which focussed both on what the CUPE case actually involves, and the legal test for intervenor status.
Though the topic of each case was similar, the CUPE proceeding and the Unifor grievances involved different subject matter. In particular, the CUPE case focussed on the "very narrow issue" of an alleged representation made to a CUPE union official. This did not involve any communications with Unifor.
The potential remedies which Unifor might obtain, including for a potential estoppel based on statements by Air Canada management, could only be granted by an arbitrator hearing the Unifor grievances. This was not within the power of Mr. Steinberg as the arbitrator appointed in the CUPE proceeding.
With respect to the legal test for intervenor status, the arbitrator agreed with Air Canada's position, holding that Unifor's interest in the CUPE case was only "indirect and potential". This was then described as being more in the nature of a commercial or incidental interest, which the law makes clear is insufficient to support a request to intervene.
In summarizing the Unifor position, the arbitrator the said: "The 'me-too' which Unifor seeks in this case is not based on the representation which is at the core of this case". As a result, there was no proper legal basis to intervene.

Takeaway for Employers

Many employers are often faced with attempts by employees and unions to invoke the "me-too" argument, which is often couched as a request for equal treatment for all. However, from an HR and business standpoint, there are often legitimate and non-discriminatory reasons for not treating all employees or groups the same. Though based on unique facts, this decision provides a useful reminder that a mere commercial desire for uniform conditions is not necessarily a proper legal basis to require the employer to agree to a "me-too" approach.

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