Canada: Employer Rights During A Unionization Campaign: More Than You Think! | The HR Space

In Québec, as in other Canadian jurisdictions, when a union applies for certification to represent a group of employees, the employer is not left without rights or remedies. It may carry on business as usual and it has a number of tools at its disposal by which to oppose the application, including challenging the composition of the bargaining unit proposed by the union. However, the employer has the heavy burden of proving not that there is a more appropriate unit than the one proposed by the union, but that the proposed unit is actually inappropriate in the specific context of the company. On the other hand, if the union files an application for unfair labour practice to challenge a decision made by the employer after the application for certification is filed, the union will have the burden of proving that the employer's decision was tainted by anti-union animus.

In a very recent decision¹, the Administrative Labour Tribunal of Québec (the "Tribunal") reaffirmed the principles that apply to challenging an application of this nature, while at the same time dismissing an unfair labour practice complaint under the Labour Code (the "Code").

The Facts

On September 21, 2016, the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (I.A.T.S.E.), Local 56 ("IATSE"), filed three applications for certification to represent the employees of Solotech inc. ("Solotech"), a company with offices in Canada and the United States specialized in the live performance and entertainment industry and that also does business nationally and internationally. By way of these applications, IATSE sought certification for three separate bargaining units: (1) shop and repair technicians, (2) technicians assigned to touring performances, and (3) technicians assigned to local events. Solotech challenged the composition of the bargaining units on the basis that a single unit covering all of these employees was the only appropriate unit given the specific nature of its activities.

It is important to note that these certification applications were filed on an urgent basis in response to Solotech's decision to contract out its transportation service, which consisted of eight drivers who had recently joined IATSE.

Several weeks later, IATSE also filed an unfair labour practice complaint. In the union's view, the decision to contract out the transportation service aimed to intimidate the other employees and undermine the IATSE's unionization campaign in which it had been engaged in since the fall of 2015.

Inappropriateness of the Proposed Units

The Tribunal began by acknowledging the existence of a community of interests among the groups of employees covered by the applications for certification. However, even though the various technicians did not perform their work under the same physical conditions and did not have the same employment status or terms of employment, the evidence on the whole showed that (i) they performed the same type of functions, (ii) the qualifications required to hold any of these positions were the same, and (iii) the various functions were interdependent and interchangeable.

The Tribunal held that the nature of Solotech's business called for a pool of mobile and rapidly available technicians. Given its finding in that regard, the Tribunal concluded that a unit that covered only one part of that pool would be inappropriate since it would [translation] "exclude from its intended scope employees who are in frequent contact with one another, who hold interdependent and interrelated positions, and who may be moved from one category of personnel to another."

No hindrance or interference

Applying the principles established by the Supreme Court of Canada in the Wal-Mart decisions,² the Tribunal concluded that apart from pointing to the timing between the certification of the drivers and Solotech's announcement of its decision to contract out local transportation, IATSE had not discharged its burden of proving that the impugned decision was tainted by anti-union animus.

The Tribunal found that Solotech's decision was related to the need to free up additional money for the purchase of new equipment during a period of exponential growth. The Tribunal also accepted Solotech's argument that an employer has the right to restructure part of its business in order to achieve better results, and not only when it is experiencing financial troubles. In short, the decision to contract out the transportation activities had been made "in the ordinary course of business".

Conclusions

This decision is a reminder that an employer can challenge the composition of a bargaining unit that it considers inappropriate in light of its activities and business characteristics. It is also an interesting application of the "business as usual" test to the situation of a rapidly expanding company. It shows that a company may not only continue its usual activities during that period, but may also make major decisions about its growth and the organization of its activities in that context.

Footnotes

1 L'Alliance internationale des employés de scène et de théâtre, des techniciens de l'image, des artistes et des métiers connexes des États-Unis, ses territoires et du Canada (IATSE), section locale 56 and Solotech inc. (PDF - available in French only)

2 Plourde v. Wal-Mart Canada Corp. (PDF), United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp.  (PDF). 

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