Remedial order follows threats of job loss, closure
A decision by the Ontario Labour Relations Board (OLRB) this month could influence the tone of future union organizing drives, according to lawyers involved in union certification.
In a March 3 decision, the OLRB awarded automatic certification to workers at Kitchener, Ont.-based packaging manufacturer Boehmer Box LP, based in large part on a series of anti-union letters circulated by the company.
The Communications, Energy and Paperworkers Union of Canada held an organizing drive in May 2008. Although 66 per cent of workers signed membership cards for certification, only half cast a ballot in favour of a union on the day of the representation vote.
In the days leading up to the vote, the company sent employees three letters in which the OLRB says Boehmer Box made “a barely veiled reference to plant closures.”
Management lawyer Jamie Knight of Filion Wakely Thorup Angeletti in Toronto says that was a major misstep, since the OLRB considers threats to job security to be among the most egregious unfair labour practices.
“There is some pretty legitimate debate as to whether that’s an antiquated basis for denying employers a right to complete free speech,” says Knight. “But the advice was and continues to be tread carefully and be very, very wary once you get into the murky waters of job security.”
He also cautions employers to be cautious about outside information distributed during a union drive. The OLRB was critical of Boehmer Box for not disassociating itself from an anonymous letter, critical of unions, circulated among staff.
“If you have correspondence in the workplace that plainly you wouldn’t be allowed to write as an employer, you have to take the step of not only prohibiting its circulation, but you also have to disavow the communication,” he says.
Still, Knight questions the rush to automatic certification by the OLRB. It concluded the damage caused by the letters was so great that a second vote could not adequately represent the employee’s wishes.
Because the language of the law is not clear about what constitutes threats to job security, he says the OLRB should be cautious when awarding automatic certification.
“If it is a fairly close call, how do you leap from a fairly close call on unfair labour practice to an automatic certificate, given that the remedy is there to have a second vote?” says Knight. “If you’re going to be aggressive, understand that your aggressiveness may lead you to the very result you’re trying hard to avoid.”
Second votes have been a controversial remedy in the past. Prior to the reinstatement of remedial certification in 2005 under Section 11 of the Ontario Labour Relations Act, a second vote was the last hope, even when they failed.
“Second votes were a meaningless remedy in nine cases out of ten,” says Eli Gedalof of Sack Goldblatt Mitchell in Toronto, who has represented many of the unions seeking remedial certification since it was reinstated. “In my view, if you’re going to have a true right to unionization and to organize, you need to have an effective foil to an employer’s ability to undermine employee free choice.”
However, he says threats to job security have not disappeared as a result of remedial certification; only the tone has changed.
“The difference you see is between employers who have received good counsel and good advice on how to respond to certification applications, as compared to employers who don’t,” he says. “We see a full range of sometimes very sophisticated responses that in some cases include real, dangerous and subtle threats to job security.”
The Boehmer Box decision is the third involving a company outside of the construction industry since remedial certification was reinstated. In all, there have been 14 applications since then: six were granted, four denied, two given on consent, and a second vote was ordered in two cases.