Canada: BC Labour Board Allows Union's Certification Application For Workforce On Layoff Due To COVID-19

British Columbia's Labour Relations Board (the "Board") recently considered the issue of whether a workforce on layoff due to COVID-19 can unionize.

In ChemainusTheatre Festival Society and International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, Local No. 168 ("Chemainus"), the union applied on April 6, 2020, for certification of the employees of the Chemainus Theatre Festival Society (the "Society") when all Society employees had been laid off or had received layoff notice.

The Society argued that the union's application should be dismissed as premature because none of the employees had sufficient continuing interest in the proposed unit due to the indefinite closure of the Society's operations.

The Facts

The Society is a not-for-profit organization that operates a 274-seat performance facility in Chemainus, BC (the "Theatre"). In normal circumstances, the Society employed regular full-time, regular part-time and casual employees. Casual employees worked on an as-needed, on-call basis. The Theatre, like many businesses, closed on March 20, 2020, due to BC's Public Health Officer's order to observe social distancing. The regular full-time and one part-time employee started working from home. The Society wrote to its employees on March 19 and March 26 ensuring its employees that "this period of uncertainty will pass" and "this situation is temporary".

However, on April 2, 2020, the Society informed the remaining employees on its payroll that the regular full time employees' last day of work would be June 6, and the part-time employee's last day would be April 18, 2020. No casual employees had worked since March 18. At the time of hearing, the Society had no plans to reopen, the Theatre remained closed, and the regular full-time and part-time employees were notified that their employment would be terminated June 6, 2020.

The Decision

Generally, when determining employee status and eligibility to vote in a certification application, the Board looks at the employment relationship at the time of the application. Employees working on the date of the application are usually considered to have a sufficient continuing interest except in exceptional circumstances, such as being laid off shortly after the date of the application. Conversely, employees who are laid off at the date of the application or are not actively working usually do not have a sufficient continuing interest, unless there is a continuing, tangible felt relationship between the laid off employee and the employer. Another way of expressing this is that there must be a reasonable expectation that the laid off employees will be recalled to work.

The Board determined that the Society's regular full-time employees and one part-time employee were not laid off at the time of the application, although they were two months later on June 6, 2020. Even though these employees were advised that they would not be able to return to work until December 2020, the Society expressed its intention to re-hire its employees when it was possible to do so. In the exceptional circumstances of COVID-19, these employees had a sufficient continuing interest in the application and their votes were ordered counted.

The remaining part-time employees and casual employees were not working at the time of the certification application. The part-time employees had a formalized employment relationship with the Society with ongoing expectation of work, even though the Society could not predict when that work would occur. Therefore, even though they were laid off at the time of the application, they had a continuing, tangible felt relationship with the Society. Similarly, the Board determined that even if the regular full-time employees were laid off at the time of the application, they would have a sufficient continuing interest for the same reasons.

The casual employees, however, had a more tenuous relationship with the Society. Prior to the pandemic, the casuals were on a list and the Society would call them if it decided it required their skill set for a particular production and they were available. Therefore, the casuals only had an expectation of work to the extent the Society called them and they were available. The Board determined that this did not establish a reasonable expectation of recall, thus they did not have a sufficient continuing interest.

Key Takeaways

In the unique circumstances of the pandemic, the Board has shown that it is willing to consider the employee's broader relationship with the employer, including the pre-COVID relationship and the employer's plans with respect to recall, even when tentative. Further, even if an employer's entire workforce is laid off due to the pandemic, it is still possible for them to unionize. Finally, even if employees do not have a sufficient continuing interest for the purpose of the application, such as the casual employees in Chemainus, they can still be included in the unit for the purposes of collective bargaining. Therefore, employers must be aware of the potential, during the pandemic, that a smaller percentage of an employer's workforce may be able to determine whether a workplace is unionized, and that its employees may successfully unionize while on layoff.

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