On Aug. 31, 2013, the founding convention of a new union, Unifor, was held at the Metro Toronto Convention Centre and heralded what unionists hoped would be a new era for Canada’s struggling labour movement.
The convention was the culmination of 18 months of intense activity to unify the Canadian Auto Workers and the Communications, Energy and Paperworkers as Unifor, the largest private-sector union in Canada and what Lewis Gottheil calls a “new union for the 21st century.”
Gottheil, who founded and (for 23 years) led the CAW’s legal department, became the new entity’s counsel. “I had the privilege of being on the dais when the motion was made for the adoption of the constitution,” he recalls. The next day, he celebrated by marching in the annual Labour Day parade, carrying the Unifor banner for the first time.
Gottheil played a significant role in the creation of Unifor. He served on the CAW/CEP proposal committee that in 2012 issued a detailed report calling for a new union (that would coalesce 300,000 workers in industries ranging from manufacturing and media to forestry and fishing).
Then, following votes in favour of the report’s adoption by CAW and CEP members at conventions in August and October, respectively, of 2013, Gottheil worked for five months as a co-chair of the 12-member working group that drafted the constitution for Unifor.
The group had to address a multitude of issues, he says. “How are local unions going to be structured? What will be the responsibilities of the leadership? What will be the rules regarding elections, at both the national and local levels? What will be the processes for treating alleged violations of the constitution?
“Would we affiliate with the Canadian Labour Congress [CLC]? If so, on what terms? What membership criteria will apply to workers who are laid off or terminated?” (In addition to recognizing Unifor membership based on certified bargaining units, Gottheil and his colleagues recognized “community chapters,” which enable precarious and unemployed workers to affiliate with Unifor.)
After the founding convention, the new union’s legal team had much to do, says Gottheil. “We had to update our successorship bargaining rights with labour boards across the country, obtain voluntary successorship agreements with employers in Ontario and elsewhere where that’s valid under law; and consolidate the various non-profit corporations sponsored by our predecessor unions, such as the non-profits that hold our property.”
While Unifor faced many integration challenges, it didn’t have to mesh two separate legal departments. The CAW had in-house lawyers, but the CEP didn’t. Unifor now has six lawyers and two articling students in Toronto and one lawyer in Montreal.
At the CAW, the in-house lawyers regularly provided advice on issues arising from the administration of collective agreements. However, they did not routinely attend grievance arbitrations. Instead, the union usually assigned staff representatives to prepare and present grievances at arbitration.
CAW’s legal team regularly conducted educational seminars for staff and local union officers on subjects related to the filing, investigation, mediation, and arbitration of grievances.
“We’re moving toward that model in the new union,” says Gottheil. “All members of the legal department assist in staff training. It’s an important part of the job.”
In a minority of arbitration cases, however, a Unifor lawyer does attend, when “the judgment is made that there is a complicated issue of law or there’s an element of the dispute that takes it out of the ordinary.”
Gottheil, 59, aspired to be a trade union lawyer from his youth in Montreal. His parents were “progressives” who trained as social workers, and his older brother was an organizer with the Confédération des syndicats nationaux (Confederation of National Trade Unions), the second largest trade union federation in Quebec.
“In our household, politics and current events were always part of the discussion,” he says. “I was interested in progressive issues from a young age. When I did my [B.A.] degree at McGill University, it became clear to me that the way I could make a contribution was through the labour movement.”
After earning his law degree at Osgoode Hall Law School, Gottheil articled with the labour law boutique MacLean Chercover in Toronto. He remained with the firm during 1982-89. “I owe a lot to Barry Chercover, a very skilled lawyer and a good mentor,” he says. “He facilitated my move to the CAW.”
The CAW, having worked with Gottheil as an outside counsel, turned to him in late 1989 when it decided to establish an in-house legal team. “The prospect of working in-house for a leading private-sector union, particularly the CAW, led at the time by Bob White, was an exciting one,” he recalls.
In a protracted, high-profile case, the CAW had to defend against a wrongful death lawsuit arising from the deaths of nine replacement workers in the bombing at the Giant Mine in Yellowknife in 1992. The Supreme Court of Canada finally ruled in the CAW’s favour in 2010.
The litigation and the appeals were handled by external counsel Sack Goldblatt Mitchell LLP. “I made sure to be an effective liaison,” says Gottheil. “I would consult with counsel, provide instructions to counsel, and refer what I was being told back to the leadership here.”
The plaintiffs accused the union of vicarious liability, based on the CAW’s support for the miners’ cause. “We provided the miners with financial assistance and moral support,” says Gottheil. “But did that somehow translate to liability when that awful event occurred? Absolutely not. The [SCC] decision set out several rules that made good sense in terms of how do you examine liability in a union context when something like that happens.”
Gottheil was viewed by some in the labour movement as the “evil genius” behind the CAW’s strategy of growing its membership by raiding other unions, such as the Service Employees International Union Canada.
In 2000, SEIU Canada lodged a complaint with the CLC when one-third of its members migrated to the CAW. A CLC umpire found the CAW guilty of raiding, and the CLC imposed sanctions, though the conflict was eventually settled. Gottheil says it was his job to give legal advice and the CAW leadership’s job “to make the call” on strategy.
He defines his role in similar terms when discussing the CAW’s contract negotiations with the “Big Three” automakers. “My role isn’t substantial,” he says. “When there’s a legal question, the leadership will give me a call. But in bargaining, not that many legal issues arise.”
Gottheil has played a substantial role, however, in pension law disputes. In 2013, the CAW exulted as the Financial
Services Commission of Ontario adopted the union’s main submissions on the wind up of Navistar Canada Inc.’s pension plan. The tribunal’s decision, now under appeal, would benefit 800 workers, giving them an additional $25-million in income.
Gottheil also cites the CAW’s success in a 2008 arbitration involving a pension surplus at Scotsburn Dairy in Nova Scotia. Such cases “may not make the headlines,” he says, “but what’s gratifying is when you work hard and, on a day by day basis, you advance the interests of workers.” That’s what he intends to keep doing at Unifor.
