British Columbia is known for wild swings in labour legislation. In 1992 when the NDP formed government 40+ changes were introduced to the Labour Relations Code (“Code”) most of which were in favour of unions. Not surprisingly union density rose dramatically as the balance of power was heavily tipped in favour of unions. When the Liberals regained power in 2002 they introduced changes to the Code to restore that balance. The most significant change involved a return to a mandatory vote in certification applications. Prior to that a union could be certified based solely on signed membership cards with no vote if it signed up 55% of the employees in the bargaining unit. In addition the Liberals expanded employer free speech allowing employers to express their views on unionization. Unions and employees were protected as the Code required that a secret ballot vote must be held within 10 days of the application for certification. Not surprisingly unions would often file applications for certification at 4 pm on a Friday thus giving them a further head start.
In 2013 I assumed as many did an NDP victory and therefore wrote about the potential changes to the Code: NDP will not say What Changes will be made to the Labour Code.. All of those comments were rendered moot by the stunning Liberal victory and therefore no changes were made to the Code.
Although the NDP platform is somewhat silent on labour law reform John Horgan made it clear to the editorial board of the Sun and Province on May 1st 2017 that he would introduce changes to the Code that would eliminate the secret ballot vote and he would also strike a review group to consider other unspecified changes to the Code.
With the marriage of the NDP and the Green party on May 29th 2017 employers need to consider what changes might occur to the Code and how they might protect their operations.
In my view a return to a card based system and the elimination of the secret ballot vote is the low hanging fruit both the Greens and the NDP will be glad to harvest. Given their anti-resource development stances such changes will reward their union constituency who might be concerned about the potential loss of high paying union jobs on resource development projects. Given the in-kind donations of the United Steelworkers to the NDP campaign it would be normal to expect significant changes from an NDP led government in favour of unions.
What can Employers do? One way employers might defeat a certification application is to ensure that they have a fully integrated workplace so that a union cannot cherry pick a small group of employees and then use that as a springboard to unionize the remaining employees. A union does not have to organize the most appropriate bargaining unit (i.e. all employees) but only “an” appropriate bargaining unit. The Labour Relations Board (“LRB”) applies various tests to see if there is a reasonable defensible boundary around the bargaining unit sought. One of the key tests is whether the functional integration between the employees in the group sought to be included and those excluded from the application is such that the unit is not appropriate.
All Care Canada (Sidney) Inc. v BCGEU BCLRB No. B83/2017
A recent decision of the LRB provides a good example of where various factors including functional integration will defeat a certification application. In All Care Canada (Sidney) Inc. v BCGEU BCLRB No. B83/2017 the employer operated a private pay long-term seniors’ care home. The Union applied for certification of 79 out of 119 employees based primarily on the extent of their organizing drive versus what would be an appropriate bargaining unit. Payroll and budgeting was administered by a single management team; benefits and compensation were common. The housekeepers frequently navigated the hallways and dining rooms and were found to “often interact with the other staff”. There were a number of other common features applied universally to all employees. There was an overlap of certain duties.
The LRB dismissed the union certification application. It considered the 4 factors from the seminal decision of IML to determine if the bargaining unit was appropriate. It found there was no rational defensible line around the proposed unit in terms of skills, interests, duties and working conditions. Given the employer’s horizontal organization the second factor of physical and administrative structure of the Employer went against the application. All employees worked in the same building and there was no geographical separation between the employees in the unit sought and the rest of the employees that could create a separate community of interest so this third factor went against the proposed unit. Finally there was significant functional integration given the overlapping and shared duties among employees inside and outside the proposed unit.
The LRB concluded:
When all of the community of interest factors are considered, none of the factors favours the proposed bargaining unit. I find that the unit applied for is not appropriate for collective bargaining. The scenario of employees inside and outside of the Union’s proposed unit working side-by-side on the same neighbourhood teams with shared and overlapping duties raises the danger of industrial instability and unduly complicated administration of the bargaining unit. These concerns outweigh the consideration of access to collective bargaining in this case.
This case is a good template to follow in organizing your workplace to make it harder for a union to certify a group of your employees. In my view this case is significant as it was authored by Bruce Wilkins, a very senior member of the LRB and the Associate Chair Adjudication.
Labour reform in Canada
There is a trend these days in Canada for labour reform in favour of unions. The Federal Liberal government as one of its first orders of business reversed significant labour legislation introduced by the Conservatives. Alberta under an NDP government has introduced changes. Most significantly, the Ontario Liberal government commissioned a report on changes to the employment standards and labour legislation. On May 23, 2017 the Final Report was issued including 173 recommendations over its 420 pages. The Report recommended that the secret ballot be preserved but recommended additional provisions that would make it easier for unions to certify, including permitting a union to obtain employee lists and contact information if it has the support of 20% of employees in the appropriate bargaining unit: see “Wynne to announce worker legislation” Globe & Mail Tuesday May 30th 2017.
If the right for employees to decide whether to unionize through a secret ballot vote is taken away then your workplace is likely more vulnerable to unionization. If you think a review of your organization would be useful I would be pleased to meet with your management team.
June 8th 2017
Michael Weiler practices employment and labour law including human rights and prevention of workplace harassment/bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca . Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law. Michael can be contacted at email@example.com . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at firstname.lastname@example.org or call her at 604 336 7427.
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 Michael Weiler to discuss your situation.