David Doorey, York University
Earlier this year, I published a column on Jacobin that compared and contrasted how union certification applications are dealt with differently in Canada and the USA. In particular, I considered the recent failed attempt by the RWDSU to organize workers at an Amazon factory in Alabama.
My central point in the Jacobin piece was a familiar one to labour law folks. The NLRA model of certification is ridiculously slow, designed to enable employers to wage a months’ long propaganda war both within and outside of the workplace to persuade employees to reject collective bargaining. This war may involve lawful arguments and (often in the US) unlawful threats and other activities that push workers to vote “no”. In the Amazon case, the union filed its application for certification on November 20, 2020 and the vote did not begin until February 8 and did not conclude until March 29, 2021, four months after the union applied. During that entire period, the employer engaged in a daily “vote no” campaign. Even the bathrooms were inundated with employer “vote no” propaganda. C’mom!
Now we may get to watch how matters are dealt with in Canada, albeit in Alberta, Canada’s least collective bargaining friendly jurisdiction. The Teamsters Union has filed an application for certification with the Alberta Labour Relations Board this week to represent some 600 employees of Amazon at a distribution centre in Nisku, Alberta.
While Alberta processes union certification applications slower than other provinces (like Ontario where votes are usually held within 7 business days of a union’s application), we can still anticipate that the certification vote in Alberta involving the Amazon employees will be held within a matter of weeks, rather than months. During COVID, the ALRB has been conducting mail-in ballots, so that process will obviously delay the counting of the ballots–we may be looking at 4-6 weeks before the ballots are all back at the Board. If there are disputes about who gets to vote, ballots are usually sealed (held locked away) until after those issues are resolved.
I’m assuming that the Teamsters satisfy the preconditions for a certification vote. You can see those conditions in Section 33 and 34 of the LRC. Those conditions include a requirement that the union demonstrate that at least 40% of the employees in the bargaining unit applied for are either union members or have otherwise indicated in writing that they wish the union to represent them in bargaining with the employer. You can see the Alberta Labour Relations’ Board FAQ on union certification applications here.
As in the US, Canadian employers will often throw the kitchen sink of legal arguments at the Labour Board in an attempt to delay and increase the odds of the union’s application failing. However, unlike in the US, those arguments are typically litigated after the vote is taken so that the strategy of delay is far less effective for employers than in the US. The UCP government in Alberta, which is no friend to unions, removed strict deadlines for votes and left the matter more to the discretion of the Labour Board, although I understand that certification votes are still usually held within 2-3 weeks. That period may be extended here with a unit of about 600 and the Board using mail-in ballots during COVID instead of the usual in-person votes. The Ontario Labour Board introduced e-votes, which are excellent and fast, but Alberta is still using snail-mail. We will see if Amazon somehow persuades the Board to drag the vote out longer than normal. The world is watching!
Did Amazon Violate Labour Laws By Giving a Raise to its Employees?
Here’s an interesting little legal tidbit. The Teamsters said in a press release that Amazon’s recent announcement of a pay raise for its Canadian fulfilment centre employees was “a response to organizing efforts by the Teamsters across Canada.” My labour law students should be perking up immediately upon hearing such a claim. Is a raise introduced in response to a union organizing campaign an illegal unfair labour practice?
You would begin to answer that question by looking at the applicable labour legislation. Since this organizing campaign is in Alberta, we’d want to consider the Alberta Labour Relations Code. In Division 23, you will find the section on “Prohibited Practices”. Section 147 is interesting. It says that an employer cannot “alter the rates of pay” of employees “if a trade union has applied for certification”. This is known as a statutory certification freeze (which I discuss in Chapter 33 of The Law of Work). However, Amazon introduced the raises before the Teamsters filed their Application for Certification. So that section does not seem to apply.
Does that mean that it is perfectly fine for an employer to give out raises as soon as it hears about a union organizing campaign provided that it does so before the union gets around to filing its application?
Well, now take a look at Sections 148 and 149 of the Labour Relations Code. Does anything there seem to prohibit Amazon from introducing pay raises during an organizing campaign? Take a minute to look and think about this and then come back. In the meantime, I will look a picture of alpacas.
Welcome back. What did you learn?
Well, there is nothing that obviously applies, is there? I mean there isn’t a section that says it is unlawful for an employer to give out raises at any point after a union organizing campaign has commenced at any location of the employers. If there were, then this would seem to be a slam-dunk unfair labour practice, since the Teamsters’ organizing campaign must have begun earlier than the date upon which the raises came into effect (August 29).
What about the law saying that it is unlawful for an employer to “interfere with the formation or administration of a union or the representation of employees by a union” (Section 148(1))? Could that catch an employer who gives a raise during an organizing campaign?
Would it matter to your conclusion what the employer’s motive was? For example, it is possible (and almost certainly the case that Amazon would argue) that its decision to give out a raise had nothing to do with the organizing campaign. It was simply an HR strategy. Alternatively, the Teamsters appear to be claiming that Amazon knew about the organizing campaign and intended to influence employee opinions about it by quickly giving employees a raise. These are two very different interpretation of Amazon’s decision to give employees a raise in August, just weeks before the union filed its application for certification.
In order to assess whether Amazon’s raise might be unlawful, we would need to do some research of Alberta Labour Relations Board decisions interpreting Section 148 of the Code. You could try to that on CanLii by doing some searches of Board decisions. This is what labour lawyers do! I haven’t searched the case law myself, so I can’t tell you whether the Alberta Labour Board would decide that Amazon’s decision to announce a raise during the Teamsters’ organizing campaign is unlawful. However, I might bet you a day at an alpaca farm that this will become a real live legal issue if the Teamsters lose the certification vote.
We’ll keep a close eye on this Amazon unionization campaign. As I said, the world is watching.