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Directed Remedial Certification

10-May-18

By Allie Laurent

On March 12, 2018, the Alberta Labour Relations Board (the “Board”) released its remedial decision in United Food and Commercial Workers Canada Union, Local No. 401 v. Widewaters Calgary Hotel Management Company, ULC (“Widewaters”), which represents the first instance of a Board directed certification in Alberta since the amendments to the Labour Relations Code (the “Code”) last year. Under the previous legislation (from 1988 to 2017), certification could only result from a positive employee vote. That is no longer the case.

The Board’s direction was made under section 17(1)(d)(i) of the Code, which permits the Board, when satisfied that an employer has failed to comply with any provision of the Code, to issue a directive to rectify the employer’s actions, including an order granting certification of a trade union.

The employee in this matter worked as a dishwasher for the Respondent hotel. He was terminated for being late on multiple days within a three week period. The employer argued the employee’s termination was justified as he had been given a warning that future tardiness could result in termination. However, there were concerns about the credibility of the employer’s evidence, and the coincidence of the timing of the termination with the employee’s involvement as an internal organizer in a union organizing campaign. The Union brought an application alleging unfair labour practices, seeking reinstatement, damages, access to the workplace to continue the organizing campaign, and directed certification.

The Board found that the employer breached sections 149(1)(a)(i), 149(1)(a)(viii) and 149(1)(c) of the Code, having failed to establish that the employee’s discharge was unrelated to his union organizing activities. The Board also found that the organizing campaign came to a halt because of the termination.

After a second hearing on the issue of remedies, the Board directed reinstatement and ordered a certification be issued. In directing certification, the Board reasoned that section 17 of the Code, as amended, broadened the Board’s remedial powers in terms of when the Board can direct certification.

Rather than focusing on the severity of the employer’s conduct, the likely success of the organizing campaign but for the employer’s conduct, and the viability of the potential collective bargaining relationship (as was the case under previous jurisprudence), the Board determined that it was now more appropriate to simply assess the consequences of the employer’s conduct and tailor a specific remedy aimed at overcoming those consequences.

The Board went on to indicate that unions need only establish that their campaign has been “harmed in some manner” to obtain a remedial certification, and that “normally” evidence to indicate a stalled campaign or failed vote will suffice provided there is a causal relationship between it and the employer’s conduct. In regard to causation, the Board emphasized that the consequences of the employer’s conduct will be assessed on an objective basis.

In determining that remedial certification was appropriate in this particular case, the Board noted that while the employer had not engaged in a pattern of anti-union activity, the employee termination nonetheless had a clear chilling effect on the union’s organizing campaign.

Bottom Line for Employers

The Board’s decision in Widewaters represents a substantial lowering of the bar as to when unions may obtain remedial certification. All that need be shown is that the employer committed an unfair labour practice which negatively impacted the union’s organizing campaign. Accordingly, employers must be more careful than ever in how they conduct themselves during union organizing drives.

In particular, all communications to employees regarding an organizing campaign should be carefully prepared and reviewed to avoid allegations of intimidation or undue influence, and all human resource decisions (terminations, layoffs, disciplinary measures) should be vetted with caution to ensure that bona fide reasons for such decisions are well-documented.

This decision is a significant departure from the previous law and very concerning. We can only hope that the standard identified in this decision is scaled back by the Board or the courts.

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