Labour board punishes employer for heavy-handed efforts to block union

By Lorna Harris
|Canadian HR Reporter|Last Updated: 05/29/2002

Since coming to power in 1995, the Ontario government has made significant changes in the way industrial relations are conducted in the province. The effects on the process of union certification, decertification and first-contract bargaining brought about by the wide-ranging Labour Relations Amendment Act 2000 (which came into force on Dec. 30, 2000) are slowly being felt in unionized workplaces.

So too are the effects of earlier legislation governing the way the game of certification is played in Ontario.

In June 1998, then Labour Minister Jim Flaherty introduced Bill 31 to amend the Ontario Labour Relations Act 1995. Under this legislation, proven coercion or intimidation of workers by an employer during a certification drive would no longer result in the automatic certification of the union. At the time, union leaders predicted that with this change, “employers would have nothing to worry about when they break the law.” However, as the following Ontario Labour Relations Board ruling shows, flouting the law with respect to union certification has very dramatic consequences for the guilty party.

On Aug. 16, 2001, six employees of a sod company were to vote on whether or not to join a union. According to the labour board’s recent decision, the workers were driven to the home of the company’s owner where the vote was to take place. When they got out of the van, the owner and his partner threatened to close the business if the union were voted in. Both the owner and his partner “continued to yell at the bargaining unit members from the time they arrived.” The owner threatened one employee with the loss of his job as a result of his involvement with the union by saying, “I know that you are involved with the Union and tomorrow you won’t be working for me.” None of the employees cast a vote.

The union hoping to represent the workers brought the matter before the labour board, which granted the union’s request to hold a second vote. The owner did not ask the board to reconsider its decision to allow the second vote, nor did he challenge the facts of the case.

However, when the union asked for two other remedies, the employer objected. One involved the union’s request for its costs to be reimbursed by the company, something which the labour board declined to do since it has “no jurisdiction to award costs generally” and has never awarded legal costs.

The union also asked for an order requiring the company to observe the terms and conditions of a collective agreement signed with other contractors — the Landscape Agreement — until the date of the second vote (with the exception of deducting union dues and abiding by the union security provisions). This was a master agreement which the union had signed with 40 other landscaping contractors and which was the only collective agreement it was prepared to sign in the present situation.

The union’s counsel argued that adhering to it would be a realistic way of demonstrating the working conditions it might have negotiated had the vote been conducted fairly and legally. The union also wanted to show these employees “clearly and distinctly that this employer … can be required by law to deal with a trade union and conduct its affairs in accordance with the terms and conditions of a collective agreement.”

The owner’s response was “of little assistance” to his cause and in the words of the board’s vice-chair, only “reinforced the comments of union counsel.” The business owner said he was not interested in “dealing with” the union unless all home builders were required to work only with unionized sub-contractors, nor did he distinguish between his company being bound to a collective agreement and the board’s prior step in certifying a union for his workplace. His position was further undermined by his stated intention not to re-hire five employees who were no longer working for him at the time of the hearing. None of his complaints about their work habits made at the board hearing had surfaced prior to the representation vote.

The board agreed that “some effective means of dispelling” the intimidating effects of the owner’s statements on the day of the original vote was required. However, it drew the line at requiring, as the union wanted, the terms of the agreement to apply to workers other than those on the original list of voters.

The board wanted both to make it crystal clear to the employer that he had to “deal with” the union and to demonstrate to the six workers that they had a right to choose whether or not to be represented by a union of their choosing. However, the board ruled it was not appropriate to “broaden the application of the remedy” to include any other employees, for by doing so, it would give a union the power to dictate the terms of employment without having the demonstrated support of bargaining unit workers. As the vice-chair observed, just because the union was certified was no guarantee that it would negotiate a collective agreement.

In respect to the six workers on the voters’ list, the board’s ruling comprised these rigorous measures — in addition to having ordered the second representation vote:

•When the company began work the next spring, it was required to offer employment to each of the six on the list before it offered jobs to anyone else.

•If the workers declined, the company was to get written statement from them to that effect, copies to be sent to the board and the union.

•The company was to pay the lowest wage set out in the Landscaping Agreement, but decreased by the amount of the union dues. The union had not asked for this, but the board wished to recreate the real wage rate payable under the Landscaping Agreement, as it was the one most likely to have been agreed to by the union were its efforts at bargaining successful.

•The company was to remit to the United Way or to another registered charity the amount equal to the union dues and provide the union with a copy of both the employees’ statements of earnings and the charitable donation.

•The union was directed not to enforce any sub-contracting clause that would require an employer to deal with only unionized workers.

•Before the second vote, the company was to allow the union to address the workers on two occasions for 30 minutes on company time.

•Finally the board noted that it would provide a notice to each of the workers on the voters’ list about the decision and gave the union 30 days in which to provide their addresses.

The rationale behind these orders was to make the remedy “tangible” to the employer and the six employees alike. As the board’s ruling noted, with many small subcontractors who are at the “bottom of the food chain” in respect to having power over the job-site, “the only issue … which is visible and meaningful to employees is the ability to hire and fire and to set wage rates.”

By setting a wage rate comparable to the one in the collective agreement that was used in their industry, the workers would be compensated for the violation of their rights. A second reason for setting the orders was to demonstrate to the employees that the law did not allow their employer to dictate their decision about collective bargaining. The board also hoped ordering the owner to comply at least partially (for no mention was made of benefits) with the Landscaping Agreement would remedy his violation of the Labour Relations Act.

For more information: Universal Workers Union, Labourers’ International Union of North America, Local 183 and Bradford Sod, Ontario Labour Relations Board, David A. McKee – Vice-Chair, November 23, 2001.

Lorna Harris is the assistant editor of

CHRR

’s companion publication

CLV Reports

, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext.2617 or lorna.harris@carswell.com.

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