You don’t need to wait for the pandemic to end to unionize your workplace

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

Although we may live and work in “unprecedented” times, your rights to unionize your workplace have not changed. In several cases across the country, labour relations boards have rejected employers’ claims that the COVID-19 pandemic is no time to unionize. Even where it is unsafe to hold an in-person vote, the staff was laid off, or the employer is facing economic difficulties, boards have been clear that employees’ rights to collective bargaining are not on hold.

a) You can unionize even though it isn’t safe to hold an in-person certification vote

The Ontario Labour Relations Board has repeatedly ruled that the danger of in-person voting during the COVID-19 pandemic does not mean that certification votes should be delayed. In one case, the employer, a waste management company, argued that the Board should hold an in-person vote at its premises, over a single polling period of three hours. It claimed that its employees might not have the technology or skills to vote electronically. It suggested that if the Board was concerned about the safety of an in-person vote, the vote should be delayed until it is safe.

The Board rejected these arguments. While it found that an in-person vote would be unsafe and violate regulations, there was no reason not to hold an electronic vote because “employees have a right to determine whether or not they wish to be represented in their employment and to do so as soon as the electronic vote can be arranged.” Further, the electronic vote was not too difficult for employees to access and could be done by phone or computer.

In a similar case, the OLRB reasoned that delaying the vote until after the state of emergency is lifted could delay certification by months, “which would be prejudicial to the applicant and the affected employees.”

b) You may be able to unionize even though you and your coworkers were laid off

In a case from British Columbia, a theatre company argued that its employees could not unionize because it had laid them all off due to the pandemic.

The Board noted that, generally, employees who were laid off after an application can vote and those who were laid off before cannot. However, these are exceptional circumstances. The theatre had three categories of workers: regular full-time, regular part-time, and casual employees. The Board held that the test for whether employees who have been laid off can vote is whether they have a “sufficient continuing interest in the bargaining unit.”

The Board found that the regular full-time employees and regular part-time employees did have that connection and had not been laid off until after the application. Because of the timing of the layoff, they were eligible to vote.

Most of the regular part-time workers had been laid off before the application. Nonetheless, the Board found that they had a sufficient continuing interest in the bargaining unit. The Employer had emailed staff, committing to bringing as many people as possible back, as soon as possible. Although the Employer was not able to predict when it would reopen, it had not indicated that it would be ceasing operations. Because the closure was temporary, the Board found that “there is a continuing, tangible, felt relationship between the part-time employees and the Employer and a reasonable expectation of recall.”

However, the Board found that “the casual employees’ connection to the Employer was more tenuous.” They worked on an on-call basis and the Employer would only call them if their particular skill set would be useful for a production. They didn’t have the “reasonable expectation of recall” necessary to show that they had a sufficient continuing interest in the bargaining unit, and so were not eligible to vote.

Unfortunately for the employees, the fact that the casual employees were not eligible to vote meant that they didn’t have the support required to go forward with the application.

c) You can unionize even though your employer is experiencing economic uncertainty

In a case from the Alberta Labour Relations Board, an Employer in the not-for-profit childcare sector argued that the Board should not certify a bargaining agent during the COVID-19 pandemic due to the “business uncertainty” facing the Employer. It argued that unionization would increase its “administrative and financial burden” and set the collective bargaining process up to fail.

The Board soundly rejected this argument, finding no legal authority for the proposition that certification can be refused because of the employer’s economic circumstances. It rejected the Employer’s suggestion that we are in a “historically unique” situation. It found no precedent for refusing certification, despite the fact “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”

The Board noted that “the Code is clear: certification under the Code is an employee choice.” The Board concluded that, “put bluntly, the suggestion the Board should refuse to permit certification at times when an employer faces economic uncertainty is anathema to the purpose of the Code and its certification sections.” The Employer’s argument went against the basic principles of labour relations: “to ask why the Board would ‘bother’ with a certification in economic circumstances where that bargaining may be difficult takes a dim view of labour relations indeed.”

The Board reasoned that the Code creates a process for employees to freely select their bargaining agents in order to satisfy the constitutional requirements of “meaningful collective bargaining.” Nothing in the process asks whether the employer favours certification. It noted that while employers face difficult choices, so too do employees and “those uncertainties may well be a factor in employees making the choice, through the certification process, to pursue workplace goals through a bargaining agent at that time.”

In other words, while employers are facing difficult times, so are workers. And workers’ rights to unionize have not changed, even in these “unprecedented” times. Now, more than ever, may be a good time to unionize your workplace and face those uncertainties together.