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Remedial certification: Three extraordinary unfair labour practice wins for the Goldblatt Partners construction group


The choice to join a union can be one of the most meaningful decisions workers make in their career. But given how reliant workers are on their employers to earn a livelihood, it can also be intimidating – especially if the boss fires union supporters or threatens that less work will be available if the company unionizes. It is unlawful for an employer to interfere with a worker’s choice to unionize, but that does not mean it never happens. And when it does, our lawyers push to hold the employer accountable, fight back against reprisal and unlawful terminations, and can even help the union obtain remedial certification as a remedy.

Unionizing a new workplace in the construction industry can be a numbers game. If the union can show that it has obtained support from more than 55% of the employees it seeks to represent on the application filing date, the Ontario Labour Relations Board will normally certify the union without requiring a vote (automatic certification). If the union can show that it has the support of more than 40% of the workers but less than 55%, the Board will order a vote for employees to decide whether they want the union to represent them.

However, sometimes when employers discover that a union is trying to organize its workplace, they try to thwart organizing efforts by making threats or terminating workers perceived to be organizers or union supporters. These intimidation tactics and terminations can skew the numbers so that the union no can no longer show it has enough support for automatic certification (>55%) or to require a vote (40-55%), even if it otherwise would.

Given how much power employers have over their employees, the Ontario Labour Relations Act contains several provisions to keep the rules of the “game” fair and prevent a situation where the numbers are artificially low because employees are too scared to express their support for the union or have been terminated unlawfully for participating in union activity.

When an employer misbehaves in this way and violates the Act, our lawyers help unions fight back by filing unfair labour practice applications under section 96 of the Act and seeking remedies to right the wrongs.

Recent remedial certification wins

One available remedy is for the Board to order remedial certification under section 11, where the union becomes recognized even without sufficient numbers because no other remedy (such as ordering another vote or ordering the employer to stop certain behaviour) would sufficiently counteract the employer’s breaches of the Act.

Remedial certification is available where the union was unable to obtain the 40% card support to seek a vote, or the true wishes of the employees are not likely reflected in a representation vote. Section 11 remedial certification is considered an “extraordinary” remedy because the union must persuade the Board that the employer’s contraventions of the Act are the reason the union does not have the requisite numbers for a fair vote to take place, and that no other remedy would repair the harm done by the company.

Recently, our lawyers and clients have had two big wins where they successfully argued for this extraordinary remedy:

  • Stephen Krashinsky, Christine Davies, and Ben Katz recently helped a union obtain remedial certification in Kieswetter Excavating. The union had succeeded in getting many employees to sign cards in support when the company discovered the union was trying to organize the workers. The company reacted by firing one of the employees perceived to be an organizer, targeting the primary inside organizer, and telling employees that there would be less winter work if they unionized. Our lawyers successfully convinced the Board that the company’s actions violated the act by interfering with the workers’ ability to decide for themselves whether they wanted the union’s representation.
  • Christine Davies also successfully obtained remedial certification in Johnson Construction. In this case, union organizers visited a jobsite to talk to employees about unionization and convinced some employees to sign membership cards. The next morning, the employer confronted one of the supporters at the toolbox meeting using a string of profanities and fired him a few days later. The Board found that the employer’s actions breached the Act and ordered remedial certification because the employer’s anti-union actions were directly connected to why the union was not able to obtain the 40% support needed for a vote.

Creative remedy

Section 11 is not the only remedy for a situation where the employer’s conduct has impacted the union’s ability to obtain the requisite numbers for a vote or automatic certification. After two and half years of litigation in Turnkey Site Solutions, Christine Davies (with the help of former GP associate, Caitlin Meggs) was able to successfully use section 1(2) of the Act to add five terminated workers back onto the list of employees who are counted for the purposes of determining the union’s level of support in a certification application (i.e. whether the union had >55% support). While section 11 is commonly used in these scenarios, there have only been a few successful uses of section 1(2) to combat employer interference, so this represents a victory that could be built on in future cases.

Section 1(2) of the Act states:

For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of the person’s ceasing to work for the person’s employer as the result of a lock-out or strike or by reason only of being dismissed by the person’s employer contrary to this Act or to a collective agreement.

Davies argued that five terminated employees would have been working on the day of the application if the company had not terminated them shortly after union representatives visited the job site. The Board found that union activity played a role in the decision to terminate the five employees, and added them back onto the list, placing the union much closer to the 55% threshold (other status disputes remain). Davies’ relatively novel argument shows that the “extraordinary” section 11 remedy is not the only solution to anti-union behaviour by an employer. And that in and of itself is pretty extraordinary.