Canada: Employers Beware: ALRB Decision Lowers Threshold For Remedial Certification

Co-authored by Jordan Magidson

On April 20, 2018, the Alberta Labour Relations Board (the "Board") released its decision on remedy arising from its February 7, 2018 decision in United Food and Commercial Workers Union, Local 401 v Widewaters Calgary Hotel Management Company, ULC, and in so doing, lowered the threshold for granting remedial certification in Alberta.

The Unfair Labour Practice Decision

Widewaters Calgary Hotel Management Company, ULC ("Widewaters") terminated one of its employees for just cause as a result of tardiness. At the time of the termination, he was an internal organizer for the United Food and Commercial Workers Union, Local 401 (the "UFCW").

In response to the employee's termination, the UFCW brought an unfair labour practice application against Widewaters. The UFCW alleged Widewaters had discharged the employee because of his involvement and support for the UFCW organizing drive, contrary to the Labour Relations Code (the "Code"). The UFCW argued the employee's termination caused the UFCW's organizing drive to come to a halt and sought an order for remedial certification.

Recent amendments to the Code, place the onus on the employer to prove on a balance of probabilities that it did not act with anti-union animus when discharging an employee. In this case, the Board found that there was no direct evidence that Widewaters terminated the employee because of his union activity and that there was no pattern of anti-union activity at Widewaters. Nonetheless, the Board found that Widewaters was unable to satisfy its burden in proving that it did not terminate the employee for his involvement with the UFCW. Irregularities in Widewaters decision to terminate the employee, his concurrent union activity, along with other circumstantial evidence provided to the Board, gave rise to an inference that Widewaters had knowledge of both the UFCW's organizing drive and the employee's role in the campaign. Therefore, the Board concluded Widewaters discharged the employee for his contribution to the UFCW's organizing activities.

The Remedial Decision

In crafting an appropriate remedy, the Board considered for the first time the newly amended directed certification provisions under the Code. The Board's ability to order remedial certification without a prior vote of the bargaining unit was recently reintroduced by the NDP government. Prior to these amendments, the Code required a majority vote of employees in favour of the certification of a trade union before the Board could order remedial certification.

The Board considered older Alberta authorities on directed certification when the Code permitted remedial certification without the requirement of a representation vote. The leading authority at that time was AFCW 401 v TAS Communications ("TAS"). In TAS, the Board outlined two situations where remedial certification would be appropriate:

  1. Where the actions of the employer result in an unfair labour practice so outrageous and pervasive and with such dire consequences upon employees that any wish of those employees to organize would be totally frustrated. In such a case, the Board may decide to certify even though the Board may not be able to assess with any certainty whether the campaign would have, in due course, resulted in a bona fide claim of majority support by the trade union; or
  2. Where a campaign has commenced and has made significant progress before an unfair labour practice of the employer has impeded it or brought it to a halt. If the campaign was likely to succeed and the collective bargaining relationship would be effective then the Board may decide to certify.

Surprisingly, the Board ultimately rejected its previous approach in TAS. The Board reasoned that the first aspect of the TAS test focused more on the severity of the employer's conduct rather than its consequences. With respect to the second branch of the test, the Board suggested it allowed employers to commit unfair labour practices based on calculations related to the ultimate viability of the bargaining relationship. Therefore, the Board adopted a more holistic approach focused on remedying and counteracting the consequences of an unfair labour practice. The Board indicated that where a remedial certification is sought, the union needs to establish its campaign has been harmed from the employer's unlawful conduct, assessed on an objective manner.

In this case, the Board found that the employee's termination resulted in the UFCW campaign coming to a halt. Despite mixed evidence as to whether the UFCW carried on organizing efforts after the employee's dismissal, the Board concluded the evidence established a clear chilling of employees' support for the UFCW. Consequently, the Board reasoned, the employee's firing changed the ballot question from the benefits of joining a union to one of job security. The result was to render it impossible for employees to freely express their wishes with respect to whether to unionize. Therefore, the Board ultimately concluded, that Widewaters' conduct had "poisoned the well" and that remedial certification was appropriate to counteract that poison.

Our View

The combination of the Code amendments and the Board's decision necessitate that employers take great care to manage any termination decisions during a union organizing drive. Even where there is no direct evidence of an anti-union motivation, a failure to satisfy the reverse onus provisions of the Code, may lead to a finding of an unfair labour practice. If the union can establish that the unfair labour practice has harmed its campaign, the Board may be willing to grant remedial certification. Evidence of a stalled campaign or a failed vote caused by the employers conduct may be sufficient.

The Board's new holistic approach to evaluating unfair labour practice complaints is troubling, as it opens the door to the possibility that a union campaign with little prospect of success or viability could still result in certification. In this case, despite conflicting evidence (and a lack of evidence) in respect of the magnitude of any chilling effect caused by the employee's termination, the Board concluded that employees could no longer voluntarily express their free will in respect of a vote to unionize and therefore remedial certification was appropriate. However, perhaps other less severe remedies such as the employee's public reinstatement, along with a tailored access order followed by a vote could also have equally resolved any chill on the workplace. The Board's overt eagerness to forego less extreme remedies in favour of remedial certification (without a vote) is a revealing endorsement to the recent "labour-friendly" amendments to the Code.

Key Takeaways

This decision significantly lowers the threshold for remedial certification in Alberta. Remedial certification will now be granted where it undoes the harm caused by an employer's wrongful actions, assessed objectively, regardless of the severity of an employer's conduct or the likelihood of a successful union campaign. Employer actions during a union organizing campaign should therefore be intensely scrutinized to avoid accusations of unfair labour practices and adverse impacts on a union's efforts to organize.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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