OLRB orders remedial certification after foremen threaten and intimidate employees
Employers did not get their hands dirty, but OLRB grants remedial certification after their henchmen threaten and intimidate employees
Employees have a right to organize in Ontario. Some employers think it’s okay to try and stop organizing efforts through intimidation. But they might be in for a remedial certification surprise, as Chartrand Equipment discovered after some particularly appalling behaviour by its foremen and owner.
In the summer of 2006, the Ontario Provincial District Council of the Labourers’ International Union of North America commenced an organizing drive to represent employees of Chartrand Equipment, a construction company in northeastern Ontario. On the very first day of the campaign, the employer and its foremen took drastic measures to try to put a sudden end to the Union’s efforts.
After encountering union organizers at a jobsite, one of the employer’s foremen approached them in his vehicle. The organizers tried to drive away to avoid a confrontation. The foreman attempted to block their escape with his truck but was unsuccessful. The foreman then followed the organizers. At that point, in the words of the Board, “The Chase was on.”
The foreman was joined in the chase by two other employer trucks driven by other foremen, one of which was waiting at a designated spot and pulled in front of the Union’s vehicle to try to cut it off. What followed was a dangerous dash down the highway leading into Timmins, with one employer truck in front of the Union’s vehicle and two behind it. The Chase continued with all four vehicles heading off the highway, onto the streets of downtown Timmins. Eventually, the Union’s vehicle was boxed in by the employer’s trucks.
The employer’s foremen then approached the organizers, screaming at them. One foreman took a 2 x 4 piece of lumber and smashed the driver’s side mirror of the organizer’s vehicle. He then told the organizers “if I catch you on my sites again, I’ll f*cking kill you” and to “stay the f*ck away from our men”.
That evening, the union had plans to hold a meeting for Chartrand employees at the Cedar Meadows Resort in Timmins. Prior to the scheduled start of the meeting, a convoy of employer trucks, driven by the employer’s foremen, arrived at the hotel in a “show of force” and lingered around a display table the Union had set up. Two employees who were on the premises became fearful and hid from the foremen.
At the time the Union meeting had been scheduled to start, Guy Chartrand, one of the owners of Chartrand, joined his foremen at the bar inside the hotel. Guy, who knew about the chase, bought dinner and drinks for all of the foremen, including those who had been involved in the chase. Chartrand’s group stayed at the hotel until the bar closed. At the end of the evening, the employer also paid for “double taxis” for its foremen who had been drinking (a double taxi has two drivers, one to drive the customer home and the other to follow in the customer’s vehicle).
No employees attended the Union’s meeting.
Realizing that it was unlikely to get additional employees to sign union membership cards, the Union filed an application for certification that same evening. It filed membership evidence on behalf of less than 40% of the persons in the proposed bargaining unit, but sought remedial certification under s. 11 of the Ontario Labour Relations Act, 1995. Section 11 allows the Board to certify a union, 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.
The Board’s decision
After a lengthy hearing, the Board certified the Union. It found that the employer was responsible for the threats, violence and intimidating behaviour of its foremen. The Board relied on the fact that the employer had instructed its foremen to be the employer’s “eyes and ears” in relation to a previous organizing drive by another union and to work to keep unions out of the employer. The Board held:
In sending this message to the working foremen, who in turn passed it on to the rank and file employees, the Employer engaged them in a “special relationship” which meant that they would be perceived by employees as part of the management team, even though they were not formally managers… Having the working foremen as its agents for [discouraging organization], the Employer must now bear the responsibility for their actions.
This is not to say the Board believes that Guy or Yvon Chartrand ordered or orchestrated the Chase. The Board does not believe that either Chartrand brother played a direct role in the Chase … They are not the type to do “dirty work” themselves. However, they appear to be quite willing to have others do it for them, or at least to reap the benefits from it. Having unleashed loose cannons … as their agents, the Chartrand brothers must accept the consequences of their decision.
Moreover, the conduct of the Chartrand brothers after they learned about the Chase reinforced the impression which a reasonable employee would have that [the foremen] were acting on behalf of the Employer while engaging in the Chase … [They] did nothing to disavow the Chase, or disassociate the Employer from it. Instead, Guy hosted a night long session of dinner and drinks at the hotel where [the foremen] partied with Guy until they closed the bar … Nothing could make it more clear to bargaining unit employees that the Employer endorsed the actions of its working foremen on the Chase.
The Board concluded that remedial certification was justified in this case because no other remedy would be sufficient to counter the effects of the employer’s breach of the Act. “The true wishes of employees in a bargaining unit cannot be expressed in a representation vote when they associate support of the trade union with the threat of violence. That is the case here.”
The Board ordered the employer to provide all employees with a copy of its decision and to post a notice in the workplace advising employees that their right to join a union would be protected.