Canadian Law of Work Forum (CLWF)
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
Canadian Law of Work Forum (CLWF)
Law of Work Archive

Remedial Certification: Why Employer's Shouldn't Fire Union Organizers

by David Doorey May 4, 2009
written by David Doorey May 4, 2009

‘Remedial Certification’ is a remedy long available under the Ontario Labour Relations Act, except for a short period during the Mike Harris “common sense revolution’ years during which the Conservative government were persuaded by Wal-Mart and other anti-union employers to repeal it.  Remedial certification allows the labour board to ‘certify’ the union as a remedy, even when it has been unable to prove majority support among the employees, when the employer commits a serious illegal act designed to undermine the union’s organizing campaign.   It is rarely ordered, but it has a strong deterrent effect.  Employers who dismiss or threaten to dismiss employees if they support the union will almost certainly find themselves unionized by order of the labour board.
Wal-Mart didn’t like it because it led to the first unionized Wal-Mart store anywhere in the world.  The Labour Board ruled that Wal-Mart had implied to the employees that their jobs were not safe if they chose to vote for the union in the upcoming ballot.  As a result, the vote results did not reflect the true wishes of the employees.  Wal-Mart then complained that it wasn’t fair that its threats against its employees had led the Board to certify the union.  The Harris government repealed the remedial certification power, thereby creating the ludicrous situation in which an employer could do anything it likes to workers during an organizing campaign, and all the Board could do was order a vote.  So we had crazy cases like Baron Metal, in which the employer hired goons to threaten employees’ lives if they voted for the union, and all the Board could do was order a vote.  To the surprise of no one, the employees voted against the union. But did that vote reflect the true wishes of the Baron employees, do you think? These were dark days in the history of Canadian labour relations.
Thankfully, the Liberals restored some sanity to Ontario labour law, and ‘remedial certification’ is back.  It appears in Section 11 of the OLRA.   In the first case that applied that new section (Swing Stage (2007)) the OLBR ordered remedial certification where the employer dismissed the key inside union organizer immediately upon learning of his role in the campaign.  As is common, the employer denied any knowledge of the employee’s involvement. But the Board inferred such knowledge from the timing of the dismissal and the lack of credibility of the employer’s witnesses.
In Swing Stage, the employer acted swiftly, before the union had a chance to try and obtain enough support to win a vote (which requires at least 40% employee support).  But the new Section 11 permits the Board to order remedial certification even when the union has been unable to show sufficient support for a vote.  On the test for whether remedial certification should be ordered, or some other remedy such as a vote, the Board referred to case law from earlier  decades, where the question was whether the employer’s illegal conduct sufficiently destroyed the possibility of testing the wishes of the employees in a vote.  The Board is asking whether the employer’s conduct will linger in the minds of the employees as they cast their ballot. Here is what the Board said in Swing Stage:

64.    In this case, the employees cannot freely express their wishes in a representation vote in the context of a discharge of an individual associated with union activity.  The actions of the employer served two purposes.  It stopped the union organizer from having access to employees and it sent a message to employees that support for the union meant job loss.  A representation vote with ancillary relief will not be sufficient to counter the effect of the employer’s contravention. There is no certainty for employees entering the polls that the employer will not do to them what it did to Mr. McCarthy. There is nothing the Board can do as remedy that could make the employees believe that their job security is not tied to their support for the union. The Board cannot fashion a remedy that will reverse the effect on employees of that job threat. Accordingly, the remedy of certification is the only one sufficient to address the breach in this case.

Moral of the story for employers and HR managers is that it is extremely risky to dismiss an employee during a union organizing campaign.  There is a reverse onus on the employer that requires it to convince the Board  that the dismissal had absolutely nothing to do with the fact that there was a union campaign ongoing.  So the employer better have strong evidence that explains the reason for and timing of the dismissal.  Otherwise, the Board is likely to find ‘anti-union’ animus and certify the union.
Do you think it is ‘unfair’ to employers or employees that labour boards certify unions when employers dismiss employees during organizing campaigns or make threats to job security?

2 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

previous post
Guest Blog: Cameron on the Absence of Labour Law Issues in the B.C. Election
next post
One Year Anniversary of Doorey's Workplace Law Blog!

You may also like

A Cross Country Update on the Card-Check versus...

October 3, 2018

A Successful Strike Vote is All That Stands...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Putin Invites Trump to Moscow for Second Meeting...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 218 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

CLWFFollow

CLWF
Retweet on TwitterCLWF Retweeted
RSandillRicha Sandill@RSandill·
10h

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211853Twitter 1364627677785821185
Retweet on TwitterCLWF Retweeted
TheLawofWorkDavid J. Doorey@TheLawofWork·
10h

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
12h

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.