‘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 The Harris government repealed the remedial certification power, thereby creating the ludicrous situation in which an employer could do anything it likes to workers during an organizing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?