In 2001 the Liberal government made significant changes to the Labour Relations Code (“Code”) making it much harder for unions to organize. While union density has fallen, unions remain a significant force in BC. Employers, both union and non union, have a stake in keeping current on the proceedings of the Labour Relations Board (“LRB”). Here are two significant cases from 2010.
Non Union employer + Union employer = Non union operation
Maxxam Analytics International Corporation v. BCGEU, BCLRB No. B202/2010
If you operated a non union company and had the opportunity to buy a smaller, struggling unionized operation would you do it? The risk of course is that your business might automatically become unionized or subject to a certification vote. A recent decision of the LRB has clarified this issue in favour of employers.
The case involved the merger of a large non union employer (220 employees) with a union operation (58 employees). The original panel ordered a vote despite the disparity in numbers. The employees voted in favour of the union. The employer appealed and the LRB review panel overturned the original panel.
The LRB held that where there is a merger such that the bargaining unit is no longer appropriate then the test is the level of union support in the merged operation. If the number of unionized employees is greater than 50% then the union will be the bargaining agent for the intermingled unit without a vote. If the union has “about” 1/3 support a vote will be held. However, as here, where the union’s support is just 21%, no vote will be held and the merged operation will continue non union.
The bad news for this employer was the LRB relied on the results of the vote [that should not have been held] and upheld the union’s certification—battle won; war lost. But at least the precedent will allow non-union businesses to purchase certain union businesses without the fear of the merged operation being unionized. The “about” 1/3 bright line test is certainly welcome. It is moreover consistent with the Duties section of the Code and the economic realities of our day.
LRB imposed Collective Agreement causes Employer to contract out entire operation
Osprey Care Inc. v. HEU, BCLRB No. B217/2010
The harsh realities of unionization of a business are seen in a recent case involving a complex care and assisted living facility in Kamloops. The employer was unionized and the LRB imposed a first collective agreement that the employer could not afford. The employer then gave notice to the union that it intended to contract out almost all of its operations and the employees would be permanently laid off. The union asked if the employer would keep the work in house if it achieved sufficient cost savings. While these discussions were taking place the union filed an unfair labour practices complaint asking the LRB for orders that the terminations were null and void and prohibiting the employer from contracting out during the term of the agreement. The case was settled as a result of the discussions for concessions and an extended term.
This case demonstrates the difficulties any employer faces when it becomes unionized. I have recently helped a number of clients successfully win certification votes and stay non union. But no employer should run the risk of turning over control of its operations and its employees’ job security to the vagaries of the ballot box. This case is a reminder that preventative measures should be considered before the union arrives on your doorstep.
DisclaimerThe content in the Michael Weiler Employment + Labour newsletters is for your general information and should not be taken as legal advice. If you have a specific problem, please contact Mike Weiler to discuss your situation.