UNITE HERE v. Novotel Canada Inc.
Ontario Labour Relations Board grants remedial certification after employer intimidates employees during organizing drive
On September 27, 2012, the Ontario Labour Relations Board ordered remedial certification under s. 11 of the Labour Relations Act, 1995. That section allows the Board to certify a union, even though the union cannot prove it has the support of a majority of employees, where the Board finds that the employer has committed serious violations of the Act designed to undermine the union’s organizing campaign.
This case is one of only a couple of successful non-construction industry remedial certification cases since s. 11 was restored to the Act in 2005 (remedial certification had been removed from the Act during the Mike Harris regime).
In the fall of 2008, Unite Here began a campaign to organize the hotel workers at the Hotel Novotel Mississauga. In response to the union’s campaign, the employer held a series of roundtable meetings during which false statements were made about the effects of unionization on employees’ benefits and their ability to even choose their own doctors.
Following these meetings, the rate of employees signing cards for the union dropped significantly. In the spring of 2009, the union’s key organizer spoke at a major rally at the hotel. Following the rally, she was told that two other employees, both more junior than she, had been promoted to full-time positions and there were no shifts for her to work. Further meetings took place in which the employer made statements about employees’ job security, noting layoffs at unionized business including in the hotel industry.
The representation vote took place on May 11, 2009. The employees voted 50 to 33 against representation by the union, despite the fact that well over 50% of employees had signed union cards over the course of the campaign. The union commenced an unfair labour practice application in which it sought remedial certification pursuant to s. 11 of the Act. The unfair labour practice application included a number of allegations of anti-union conduct, which the union argued negated the possibility of the employees’ true wishes being known through a vote. In addition to the actions noted above, and to what it maintained was the termination of its key inside organizer, the union alleged that the employer had directed employees to inform on their fellow employees regarding union activity, or did nothing to discourage that practice.
The Board’s decision
The Board concluded that the employer had violated the Act. Its treatment of the inside organizer was central to the case. Despite having an onus to prove that its decision was not tainted by anti-union animus, the employer’s witnesses all gave different stories concerning the decision to create the full-time positions that displaced the inside organizer. There was no suggestion that the decision to create the two new full-time positions was made prior to the union’s rally at which the organizer gave a speech.
The Board accepted that the employer had some scheduling concerns, but found that it had not demonstrated on a balance of probabilities that its decision to resolve those concerns by promoting the part-time employees above the inside organizer was free of anti-union animus. In this regard, the Board observed that no one had asked the inside organizer whether she was interested in working full-time or whether she was available to work additional shifts. The Board concluded: “It is hard to believe that had Ms. Sharma not been involved with the union, that the Hotel would have been so uninterested to find out if a relatively senior and valued employee (from a work perspective) was interested in the position.”
The Board also found that the employer made threats to employees’ job security in the roundtable meetings leading up to the vote, and those threats went beyond the employer’s right to free speech and a lawful discussion of the merits of unions. In this regard, the employer had referred to layoffs in unionized businesses, including at another hotel. It also claimed that it had not faced layoffs because of “good decisions” and encouraged employees to make another “good decision” by voting against the union. The cumulative effect of these various messages, the Board held, constituted coercion, undue influence, and interference contrary to the Act. The context of the message, which was delivered in small groups, also had an intimidating effect.
In considering the remedy, the Board noted that the termination of a key organizer and threats, even implied threats, to job security have been found to remove the possibility that the true wishes of the employees can be determined through a vote. The facts of this case, in which a high number of employees initially signed cards, but most voted against the union, suggested the employer’s activities had a significant impact and that there had been a chilling effect on the campaign. The removal of the inside organizer just before the representation vote would have led employees to conclude that her hours were reduced because she was a union supporter, and that their job security would be in jeopardy if the union were certified. In these circumstances, the Board concluded the conditions for s. 11 had been met and ordered remedial certification. In addition, the Board ordered the employer to post a notice advising employees of their rights under the Act, and ordered compensation for the inside organizer for the loss of her part-time hours.