Union certification applications can have profound effects on the workplace. The bargaining unit's composition will have implications for the conduct of the employer's business, and therefore bears close attention.
The union that is applying for certification will be the one proposing the scope of the bargaining unit. Merely showing that there is a more appropriate unit than the one proposed by the union is not enough. To challenge the proposed unit, employers must show that it is inappropriate in the specific context of the company. Employers also face potential unfair labour practice complaints for their conduct during union organisation campaigns.
In International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada (IATSE), Local 56 v Solotech Inc (2017 QCTAT 1913) the Quebec Administrative Labour Tribunal issued an encouraging decision for employers. It serves as a reminder that business operations are key when challenging the composition of bargaining units and that mere timing between an employer's action and unionisation activities is insufficient to ground a complaint for unfair labour practice.
On September 21 2016 the IATSE filed three applications for certification to represent the employees of Solotech Inc, a company which specialises in the live performance and entertainment industry, with offices in Canada and the United States. The company operates nationally and internationally.
By way of these applications, the IATSE sought certification for three separate bargaining units:
- shop and repair technicians;
- technicians assigned to touring performances; and
- technicians assigned to local events.
Solotech challenged the composition of the bargaining units on the basis that a single unit covering all of these employees was the only appropriate unit given the specific nature of its activities.
Importantly, the certification applications were filed on an urgent basis in response to Solotech's decision to contract out its transportation service, which consisted of eight drivers who had recently joined the IATSE.
Several weeks later the IATSE also filed an unfair labour practice complaint. In the union's view, the decision to contract out the transportation service was aimed at intimidating the other employees and undermining the union campaign, which it had been engaged in since Autumn 2015.
Inappropriateness of the proposed units
The tribunal began by acknowledging the existence of a community of interests among the groups of employees covered by the applications for certification. However, although the various technicians did not perform their work under the same physical conditions or have the same employment status or terms of employment, the evidence showed that:
- they performed the same type of function;
- the qualifications required to hold any of these positions were the same; and
- the various functions were interdependent and interchangeable.
The tribunal held that the nature of Solotech's business called for a pool of mobile and readily available technicians. Given its finding in that regard, the tribunal concluded that a unit which covered only one part of that pool would be inappropriate, since it would "exclude from its intended scope employees who are in frequent contact with one another, who hold interdependent and interrelated positions, and who may be moved from one category of personnel to another". (Translation.)
No hindrance or interference
Applying the principles established by the Supreme Court of Canada in the Walmart decisions (Plourde v Walmart Canada Corp (2009) 3 SCR 465 and United Food and Commercial Workers, Local 503 v Walmart Canada Corp (2014) 2 SCR 323) the tribunal concluded that apart from pointing to the timing between the certification of the drivers and Solotech's announcement of its decision to contract out local transportation, the IATSE had not discharged its burden of proving that the impugned decision was tainted by anti-union animus.
The tribunal found that Solotech's decision was related to the need for additional money to purchase new equipment during a period of exponential growth. The tribunal also accepted Solotech's argument that an employer has the right to restructure part of its business to achieve better results, and not just when experiencing financial troubles. In short, the decision to contract out the transportation activities had been made "in the ordinary course of business".
This decision is a reminder that an employer can challenge the composition of a bargaining unit that it considers inappropriate in light of its activities and business characteristics. It is also an interesting application of the 'business as usual' test to the situation of a rapidly expanding company. It shows that a company not only may continue its usual activities during that period, but may also make major decisions about its growth and the organisation of its activities in that context.
For further information on this topic please contact Valérie Gareau-Dalpé or Karine Fournier at Fasken Martineau DuMoulin LLP by telephone (+1 514 397 7400) or email (firstname.lastname@example.org or email@example.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.
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