Proceedings before the Labour Relations Board often involve complex legal issues. Most employers will choose to be represented by counsel at such applications. Some of the more common applications before the Board are:
Certifications – labour relations legislation determines the process by which a union gains the right to represent the employees at a particular workplace. Issues about the composition of the bargaining unit and whether the union has the necessary support often arise in the context of a certification application.
Decertifications – labour legislation also dictates how employees can end a union’s right to represent them. The decision to continue with or end union representation is to be made by the employees without undue influence by the employer. Decertifications are usually hard fought by the union, who will typically raise the issue of employer influence when trying to defeat the application.
Unfair Labour Practices – these cases typically arise in the context of certification or decertification drives, and will often involve allegations that an employer has improperly influenced employees’ support for the union through direct or indirect threats, intimidation, changes in working conditions or improper employee dismissals.
Successorship / Common Employer applications – will arise where a business is being sold or restructured, and an application is made by the union to ensure that union representation continues with the new business.
Bargaining in bad faith claims – in the course of negotiating a collective agreement, both the union and the employer have a legal obligation to make best efforts to reach a collective agreement. Bargaining in bad faith claims usually involve an allegation that one of the parties through its actions is deliberately trying to avoid reaching an agreement.
Duty of Fair representation – this application is brought by an employee who believes that he or she has not been properly represented by the union. Even though the complaint is against the union rather than the employer, and these applications are rarely successful, an employer needs to participate in the process. Should the application be successful, the remedy imposed by the Board is often that the employee’s grievance must proceed to arbitration, and the employer is dragged back into a grievance process that it thought had been resolved.
Grievance Arbitrations – grievances that are not resolved between the employer and union may ultimately be determined by an arbitrator. The hearing process is analogous to a court trial. Although an arbitration is intended to be faster and less formal that court proceedings, rules of evidence and legal precedent still apply to the process.
An arbitrator has almost complete authority to hear the case, to determine what evidence to admit and to render a decision. An arbitration is a legal proceeding that will bind both the employer and union, so it is critical that the employer’s case be presented properly and completely.
An arbitration is a fairly complex legal process, so most employers will retain legal counsel to represent them at arbitration.
Mediation – mediation is a non-binding settlement process where the employer and union involve a neutral third party to assist them to resolve the grievance before it goes to arbitration. Most arbitrators are of the view that the parties voluntarily reaching a settlement is preferable to the arbitrator imposing one, so even where a grievance has been referred to binding arbitration, the arbitrator will often conduct a mediation first, to see if he or she can get the parties to settle their differences directly.
Even though mediation is a voluntary process, it is critical that an employer is able to effectively present its case. Preparing for mediation requires much of the same preparation as for an arbitration, and the leverage you will have to get a settlement will depend entirely on the strength and presentation of your case. Most employers will retain counsel to represent them at the mediation process.
Responding to a Union Certification Drive
Dealing with workplace campaigning by the union
When faced with a union certification campaign, an employer’s first inclination is to do whatever is necessary to remain non-union. While this may seem like a natural reaction, the decision to unionize or not is the employees’ decision, and there is decades of legal precedent dictating what an employer can and can not do to influence a certification campaign.
An employer’s actions during the certification campaign will be carefully monitored by the union, and the union will make an unfair labour practice complaint against the employer should the employer go too far in trying to affect the outcome of the campaign. What an employer can or can not do during the campaign is a complex area of the law that requires timely legal advice.
In general terms, the employer can not use intimidation or coercion to influence the employees’ decision to support the union. Whether the employees have been intimidated or coerced depends upon the circumstances of the campaign, but often involves the employer making threats about the company’s future should it be unionized, changing terms and conditions of employment, or terminating employment during the certification drive (contrary to the Labour Code).
The Board also takes a dim view of the employer holding a “captive audience” meetings of the employees where employees are required to attend a workplace meeting to hear the employer’s views on the union being certified to represent the employees.
What can the employer do? Generally speaking, it is permissible for an employer to:
Speak to the employees to identify their concerns – finding out why the employees think they will be better served with a union in the workplace is useful information.
Challenge any improper or erroneous assertions by the union – while the employer will not be permitted to make the certification drive a campaign between the union and employer, if the union has said something erroneous, or has made promises that are not within its power to deliver, the employer can correct these misstatements.
Provide the employer’s position on whether the employees should unionize – an employer must be cautious when doing this, since it is easy for such statements to go too far and ultimately be deemed intimidating or coercive. An employer can not threaten job security or make promises of additional benefits to the employees after the certification drive is defeated, but straightforward statements about working directly with the employees without the need for a union are often acceptable.
Prevent disruption to the workplace – while a certification campaign will create discussion in the workplace and often involve the union leafletting near the workplace, the employer is entitled to keep the campaign from affecting production. Requiring the employees to limit the discussions to non-working time and preventing the union from coming onto the company’s premises is generally acceptable. An employer should be cautioned however not to be too heavy handed in trying to limit discussion, since this will be used by the union to convince the employees that they need “protection” from the employer.
While at one time employers had to remain virtually silent during a union certification drive, the relevant labour legislation now (at least in BC) allows employers to communicate with employees about union certification to some extent. The Labour Code allows an employer to express its views to its employees provided that “it does not use intimidation or coercion”. Where the Labour Board draws the line between appropriate speech and “intimidation and coercion” is a fairly complicated legal issue. Employers are well advised to plan any communications to employees in advance, and to get whatever advice is necessary to ensure those communications don’t cross the line.
Copyright 2018 Anctil Labour Law - This site is intended for information purposes only and should not be construed as legal advice.