Labour lawyer predicts ugly negotiations between unions, province

Last evening, I was featured on Global TV News — fortunate to headline the top story of the day.  The subject was the Province of Nova Scotia’s relationships with its public sector unions.  The reporter did a competent job on the matter, although mislabeling me an “expert” in labour law.  Admittedly, I possess over a decade of labour law experience, representing predominantly public sector unions in the United States.  However, I have never been qualified as an “expert,” and the label came as a bit of a surprise.  The only area of law where I have been consulted as an “expert” is in the field of Constitutional Law, which I taught for over a decade in the United States.

Notwithstanding the above qualification, I thought that I would provide a bit more perspective on the sound bytes coming out the TV coverage.  Two days ago, the governing political party in Nova Scotia, the Liberal Party, invited its public sector labour union leaders for a ‘sit down’ discussion regarding upcoming, anticipated labour contract negotiations — also called “collective bargaining negotiations.”  The unions came to the meeting with trepidation — this particular provincial government has distinguished itself in the past year for engaging in questionable tactics including, most notably:  (1)  attempting to arbitrarily reorganize the health care union membership away from their present bargaining units — a likely violation of the right to association guaranteed under Canada’s Charter of Rights; (2) firing the arbitrator selected to rule upon the impasse that arose from the Province’s perceived inability to negotiate in good faith with its health care unions; and (3) expanding the scope of its governmental powers to prevent union reaction, i.e., striking.  Admittedly, removing oneself from the politics surrounding the matter, it seems like a good idea to reorganize the health care workers into fewer overall bargaining units.  However, it is never good public policy or politics to unconstitutionally and arbitrarily plot such reorganization; nor, is it effective policy making to attempt to undermine real collective bargaining negotiation.

This Province relies on its unions — it is in active competition versus other provinces for these trained professionals.  These trained professionals — like everyone else in society — deserve good living wages and benefits, alongside other workplace protections.  Indeed, what is notable about unions is that they deliver results for workers in a way that should be commonplace for all workers.  What I have observed from my experience in the United States is that government — especially when adopting austerity policies — often mistakenly target its workers, rather than making politically courageous decisions on taxation, other methods for collection of revenue or better spending policies (e.g., not dumping millions of dollars into a private company running a ferry; not privatizing utility services, etc.) to further bolster public funds and spending.

I am not attempting to be political.  I am a lawyer who has long-represented labour interests; I have always done so in a manner designed to, in good-faith, establish common ground between the parties.  Sadly, in many cases, it was the obstinacy and politics of public officials that undermined the ability to deliver fair bargains to both sides.  I will state, as an aside, that the Liberal Party in Nova Scotia has adopted several policies with which I can, as a citizen, agree.  Labour relations policy is simply not one of those items.

As I indicated during my interview, I anticipate that, based upon the recent history of failed negotiations, the sides will be unable to come to agreement during collective bargaining.  The distrust fueled by last year’s actions, described above, leave this Government with the insurmountable problem of attempting to regain the immediate trust of the unions during negotiations.  I simply do not see the Provincial Government making any real efforts to do so — hence, my prediction of impasse.  I certainly hope that the Government does not again attempt to bulldoze results.  The consequences from public backlash, when combined with other recent issues (including, but not limited to, the Film Tax Credit debacle), could make this Government’s tenure a short one.

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As former counsel to a prominent police union, and as the recipient of an award for my services to police labour efforts, I feel that I need to comment on the recent efforts made by the police unions representing police officers at NYPD.  First, I will reaffirm my extraordinary respect for most police officers:  I have seen first-hand the difficulties of police in both attempting to protect the public, as well as to maintain respect from the public and — as members of unions — the management of police agencies.  There are incredible demands placed upon these women and men.

That being said, and without treading into the recent, serious human rights issues arising from allegations of improper use of force against members of minority communities.  One issue arose from a videotaped death of an innocent black male at the hands of an member of NYPD in Brooklyn.  NYC Mayor Bill DeBlasio addressed these issues in sensitive fashion — recognizing the potential abuse of minority rights.  In other words, he did not simply blow the normal horn that is protective of police actions — even bad police actions.

I am extremely troubled by the NYPD police union’s attacks on Mayor DeBlasio — both from a reality-based and a political direction.  First, it is extremely poor politics for the union to attack a mayor who has traditionally been extremely supportive of labour rights.  Effectively, the union has turned against perhaps its strongest government advocate.  Why?  In order to protest DeBlasio’s failure to stand by a cop who — on videotape — appeared to clearly abuse his authority by continuing to pummel, to death, a prone black male?

This then segues into the interrelated second issue — the reality of the situation.  Although there may have been occasions to question some union “PR — public relations” moves, I do not recall my Florida-based police union ever standing up for a member — in the media — who appears to clearly violate the standards for use of force.  Certainly, the union is required to protect its members when they are subject to administrative discipline and/or criminal prosecution.  However, it is unfathomable for a union to publicly attack — viciously and repeatedly — a public official (and one traditionally viewed as a supporter of police union rights and issues) who refuses to simply tow a political line under circumstances where there is nothing to tow.

As a result, the head of the NYPD Patrolmen’s Benevolent Association, a branch affiliated with my former client-union, the Florida Police Benevolent Association, has squandered its relationship with both City Hall and the public.  The NYPD PBA has — in the long-term — undermined its strength by choosing to pursue a questionable and dubious public relations strategy.  By doing so, I believe that it has not strengthened the union, but undermined it, its members, and other police unions through the United States.  In the meantime, Mayor DeBlasio should arise from this fight with his honour and political standing well-intact.

The post Holiday Blog Posting: Comment on Police Union Protests Against NYC Mayor appeared first on Halifax Law.

This is a tough case.  For those who have not reviewed the above link, or are otherwise unfamiliar with the case, there remain ongoing perjury prosecutions against Mounties involved in the TASER-induced death of a suspect, Robert Dziekanski, back in 2007.  The case represents an interesting, albeit not so rare, cross-section between Criminal Law, Human Rights Law and Labour Law.  Interestingly, I was involved — as lawyer — in two, similar matters.  In both cases, I was representing the police officers.  There was always an interesting di/trichotomy between my trio of roles as both Human Rights Lawyer and Labour Lawyer, especially as it pertained to representation of police officers involved in either administrative disciplinary and/or defence of criminal charges.

The troubling aspects of the case commence with the events leading up to Dziekanski’s death.  The use of TASERs, especially in what appears such brash and unbridled fashion, would appear to constitute an extreme, disproportionate use of force.  Surprisingly, the Crown refused to pursue charges of manslaughter against these officers.  The use of TASERs, the subject of so much publicity in both the U.S. and Canada, has shed light on both the dangers of the device, and its dangerous — at times, arbitrary — use against citizens.

Notwithstanding, it appears that the Crown instead decided to pursue perjury charges against the four RCMP troopers.  This is bizarre:  as Crown documents apparently support, there is no real chance to secure convictions on perjury due to the very nature of the offense.  Boiled down, per the Criminal Code, at secs. 131, 132, the charge requires that the defendant(s) knowingly and intentionally make a false statement of fact.  Further, I would inject that any such misstatement should be a material one — a misstatement that was essential to the underlying facts of the death of Mr. Dziekanski.  Already, the Crown failed on one of its prosecutions.

Now, that being said, even though I believe that the Crown will have difficulty securing convictions from any of these RCMP troopers, I do believe that there is a reasonable basis for proceeding with the prosecutions, based upon the events surrounding the case, and the public purpose to ensuring that these troopers are prosecuted in some regard.  Why?  The disproportionate use of force appears evident from the video footage.  Indeed, there is likely additional video footage; unfortunately, that footage — per at least one news report — was seized by law enforcement, and then lost.

So, the result is a man killed by — from the footage — the unlawful use of force by law enforcement; the failure of the Crown to prosecute on one front; and the failure of the Crown to be able to successfully prosecute on a lesser fronts.  I have defended police officers on use of force that falls squarely within the defined matrix; I do not see where — based upon the video footage — how, in this particular case, there was not more done to address the failure of law enforcement to conform to acceptable uses of force to apprehend a troubled individual who did not seem to present any real danger to the public at the time of his assault by RCMP.

On the more mild labour front, it would be interesting to discover what administrative charges were leveled against the four, and the status of their positions within law enforcement.  At present, I only know that one of the troopers has resigned his position with the agency.

The post Human Rights/Criminal/Labour Law: The Perjury Prosecutions of Mounties in the Dziekanski Case appeared first on Halifax Law.