The OLRB Orders A New Vote And Company To Provide The Union With On-Site Organizing Office
A recent decision by the Ontario Labour Relations Board (the "Board") dated May 4, 2001 is noteworthy in two respects: one, the manner in which the Board reached its conclusion that management initiated the "reprehensible conduct" that intimidated employees; and, two, the scope of remedial relief granted to employees and the union seeking to represent them.
The case involved an application for certification filed on November 6, 1998 by the Steelworkers Union in respect of the employees at Baron Metal Industries (the "Company"). The Company produces steel doors and frames and employs an ethnically diverse group of which approximately twelve percent are of Sri Lankan origin. The certification vote was held on November 16 and resulted in a tie (and hence the Union lost). The Union then filed an unfair labour practice complaint alleging that the vote was not a reliable reflection of the employees’ wishes because of intimidation in the workplace created by the Company.
The complaint was based on the conduct of two Tamil men of Sri Lankan origin with past criminal records and gang associations. These two individuals were hired just prior to the filing of the application for certification. Essentially, the Board concluded that the sole reason these two individuals were hired was to intimidate the employees of Sri Lankan origin by directly threatening those employees believed to be the inside Union organizers. In particular, during a period of 3 to 4 days leading up to the certification vote, these two men were able to move freely about the workplace and threaten the employee organizers identified on a list allegedly provided by management. The essence of the threats was that the Union must not win the vote and the Union organizers were to communicate this to the other Sri Lankan employees or risk physical violence or death.
Applying the "reverse onus" requirement in unfair labour practice proceedings, the Company was required to provide a credible explanation to satisfy the Board that the Labour Relations Act, 1995 (the "Act") had not been breached. The absence of any credible explanation for the conduct of the two Tamil men led the Board to conclude that management was involved in attempting to influence the vote (though no particular person could be identified as responsible).
The Board then concluded that the Sri Lankan employees made up a significant group within the Steelworkers’ proposed bargaining unit and, therefore, the intimidating conduct meant the results of the representation vote did not reflect the true wishes of the employees. As the Board could no longer "automatically certify" the Union for the breach of the Act during the organizing campaign, the Board exercised its power "to do anything to ensure that a new representation vote ordered…reflects the true wishes of employees in the bargaining unit".
Apart from a new vote, the Board’s remedial order went further than it has previously. The Board went to considerable lengths in providing a remedy to give the union an opportunity to convey to the employees their entitlement to be represented by a union. This included reimbursement of the Union’s organizing costs, the distribution of notices to employees setting out the Board’s findings of violations of the Act and remedies ordered, allowing the Union to hold monthly meetings with employees on the Company’s premises for which employees are to be paid while attending, and the provision of a "Union office", accessible to employees, on the Company’s premises and at the Company’s expense.
Employers who believe that the Board’s loss of its "automatic certification power" for unfair labour practices committed during a union organizing drive presented a "low risk" opportunity to interfere with the representation vote should take caution from this recent Board decision. Apart from the onus being on the employer to demonstrate that it did not commit any breaches of the Act if such are alleged, the Board clearly is prepared to extend the scope of remedial relief available to unions and employees affected by employer misconduct. Further, some have suggested that in the appropriate circumstances the Board may even go further with its "do anything" power.
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