When the NDP introduced in 2019 numerous changes to the Labour Relations Code (“Code”) largely in favour of unions, it opted to keep the secret ballot vote in union certification applications where unions seek to become the exclusive bargaining agent for all the employees in the bargaining unit.  This was largely seen as a concession to the Green Party who insisted on keeping the secret ballot vote and preserving democracy in the workplace.

At the same time the government introduced a number of changes to the Code that made it more difficult for employers to defeat a certification drive.  This included shortening the time frame to hold a secret ballot vote and greatly reducing employer free speech.   One of the key changes in 2019 was found in section 14 (4.1) which allows the LRB to certify a Union without a vote where it finds there has been an Unfair Labour Practice (“UFLP”) committed by the employer and the LRB “believes it is just and equitable in order to remedy the consequences of the prohibited act.”

In its first decision on section 14 (4.1) the LRB automatically certified a union for a bargaining unit of more than 80 employees because the employer had terminated the two inside union organizers. Only one employee had signed a union card.  The LRB justified this extra ordinary response by saying that this involved “hit hard, hit early” tactics that were intended to and did in fact achieve stopping the organizing “in its tracks”.  Given these considerations the LRB found that it would be impossible to remedy the UFLP by a vote which would  not disclose the true wishes of the employees:  Salade Etcetera Inc v UFWC 1518 2020 BCLRB 109 (appeal of 2020 BCLRB 34 dismissed) 2020 BCLRB 109.pdf.

In Waste Control Services Inc v. OE’s Local 115, 2022 BCLRB 13 2022, the LRB dismissed a Union’s request for remedial certification in circumstances very similar to the facts in Salade Etcetera Inc.

The employer learned of a union organizing drive and promptly fired the lead union organizer, an employee of 1 ½ years with 22 years experience in the waste management business.  He had never been disciplined by the employer. There were 100 employees at the location where the organizing drive commenced.  Shortly after learning of the organizing drive the employer fired the union organizer without cause.

The LRB found that the dismissal of the Union organizer was without proper cause and more importantly was tainted by anti-union motivation while a certification drive was ongoing in contravention of section 6 of the Code.  It held that the Employer’s witnesses’ evidence “regarding the issues they testified to about the Dismissed Employee’s performance was unreliable and did not establish proper cause for dismissal.” (para 41)

Turning then to the issue of remedial certification as a remedy for the UFLP the LRB found that this case was distinguishable from Salade Etcetera Inc.  It stated:

“In the case before me, I find the Employer's actions were relatively severe in that they involved the dismissal of the Union's chief organizer at the very start of an organizing campaign. However, I find the dismissal was not done in a way which would make it impossible for the Dismissed Employee to return to the workplace. No cause for dismissal was alleged at the time, and it was not done in front of other employees. I find the likely effect of dismissal on the employees and the Union's ability to organize them is not such that only remedially certifying the entire workforce would constitute a just and equitable remedy. With this decision, the Employer's dismissal of the Dismissed Employee will quickly be reversed and remedied. I further find any damage to the Union's ability to organize can be remedied by the orders given below. I am satisfied the following remedies are just and equitable as well as appropriate for the facts before me.” (para 50)

However the LRB did make a number of orders intended to rectify the damage done by the blatant UFLP committed by the employer.  It ordered:

“I make the following declarations and orders:

I declare the Employer has breached the unfair labour practice provisions of the Code, contrary to Sections 6(1), 6(3)(a), 6(3)(b), 6(3)(d), and 9. I order the Employer to immediately cease and desist from committing further breaches of the Code.

I order the Employer to immediately reinstate the Dismissed Employee to employment with compensation for all wages and benefits lost by reason of the unlawful dismissal.

I order that within 5 calendar days of the receipt of this decision, the Employer shall post a copy of the Board's decision in a conspicuous place at the worksite and mail a copy of the decision to each of the employees at the Employer's expense.

I order that within 30 calendar days of the date of the decision, the Employer must allow the Union to have a 60-minute meeting with the Employer's work crews at the Employer's expense during work time and in the workplace without management or relatives of persons related to the owner present.”

TAKEAWAYS

Unions continue to utilize the tools given to them in 2019 to enlarge their membership base and certifications.  Avoiding a vote is very important as unions are not always successful in winning the employees over when they are entitled to express their views in a totally secret ballot vote.  So, a remedial certification is very useful in assisting in their organizing efforts.

The circumstances when a remedial certification will be granted are now very unclear.  The facts in both these two cases are very close yet a remedial certification was denied in Waste Control. As an employer you do not want to be rolling the dice at the LRB.  Further even though no remedial certification was ordered, the employer in Waste Control was subject to many orders all geared towards providing the union with a platform to organize the employees.  Further any action taken by the Employer will be highly scrutinized in light of the findings of UFLP.

One other key factor to note in this case.  Under section 5(2) a union can demand a hearing into an  UFLP complaint within 3 days.  So that means the employer has very little time to instruct counsel and prepare for the hearing. Therefore, employers are advised to take steps to familiarize themselves with the provisions and procedures under the Code before a union comes knocking on its door.

The Labour and Employment Group at Kane Shannon Weiler will be glad to provide you with an overview of the provisions and procedures and suggest steps to be taken to avoid an UFLP complaint and consequent remedial certification.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.