Unfair labour practices

 Labour Relations Code, Section 5 - Prohibition against dismissals, etc., for exercising employee rights

In addition to the general prohibition on intimidation and coercion, the Code prohibits anyone from retaliating against an individual because they think the individual has or will exercise an employee right under the Code. The types of Code rights an individual might exercise include:

• making an application under the Code
• participating in a Board proceeding
• acting as a witness in a Board proceeding
• making a disclosure that is required by a Board proceeding

If an individual has exercised or plans to exercise any of those Code rights, an employer or a union can't retaliate against them by:  

• dismissing them
• refusing to employ them
• discriminating against them with respect to their employment or a term or condition of employment
• discriminating against them with respect to their union membership
• intimidating, coercing, or imposing a financial penalty on them
• threatening to do any of these things

The Code prohibits conduct of any kind that is coercive or intimidating. Coercive or intimidating means conduct that could reasonably be expected to affect an individual's ability to choose for themselves whether or not to become or stay a member of a union.

Employers, unions, and individuals can be guilty of coercive or intimidating conduct. If they are, it is an unfair labour practice.

Coercion and intimidation include things like force or threats. The Board will look at all the circumstances surrounding the conduct to decide whether it was likely to have unlawfully influenced an employee's right to choose whether to become or to stay a union member.

Examples of conduct the Board has found is intimidating or coercive include:

• a supervisor telling a crew that the plant would be closed and moved to another country if the union was certified
• a manager asking employees if they signed union membership cards
• managers in a branch of a large chain telling employees in one-on-one meetings that the employer had closed other branches after they unionized
• an employer calling employees at home and asking if they planned to vote for the union
• an employer encouraging employees to form a plant committee as an alternative to the union and helping them to do so
• an employer encouraging employees to support one of two unions and giving the preferred union employee contact information to make it easier for it to organize
• an employer holding one-on-one interviews with employees telling them to ignore the union and its organizers
• an employer holding a mandatory meeting and telling employees that the union had a negative impact at other businesses. The employer also asked employees to join a different union
• an employer telling employees that it could not increase wages because of the union's organizing drive and certification, even though it had planned the increase before the union organizing drive started (so giving the increase would not have been a violation of the Code)
• a union organizer inaccurately telling employees that they would lose their jobs if they did not sign a union membership card (when there was no union security clause to that effect)

 A defense to intimidation and coercion: the right to communicate (Section 8)
An employer, union, or an individual has the right to communicate to an employee a statement of fact or an opinion reasonably held about the employer’s business.

This means a person can respond to statements or information that may be incorrect or inaccurate or communicate neutral information, such as requirements under the Code.

 Labour Relations Code, Section 8 - Right to communicaite

 Labour Relations Code, Section 6 - Unfair labour practices

There are some prohibitions in the Code that apply specifically to employers. Employers are prohibited from doing any of the following things, during an organizing drive or otherwise.

An employer can't interfere in the trade union (Section 6(1))

An employer is prohibited from participating in, or interfering in, the formation of a union or in the administration of the union. An employer can't contribute financial or other support to the union.

Prohibited actions (Section 6(3))

An employer can't fire, suspend, discipline, transfer, lay off, refuse to hire, or discriminate against someone because they:

• want to join or participate in a union
• want to participate in promoting, forming, or administering the union

An employer can't make someone agree, as a term of their employment contract, that they won't join a union.

An employer can't try to compel or induce an employee not to join or participate in a union by:

• firing them
• threatening to fire them
• threatening to change any term or condition of employment

The employer also can't promise an employee a benefit, including a wage increase, if they agree not to join or participate in a union.

An employer can't fire, suspend, discipline, or lay off an employee while a union is in the process of conducting an organizing drive, unless the employer has proper cause to do so.

 Employer defences: proper cause and business as usual
An employer can lay off, discipline, or dismiss an employee during a union organizing drive if it has proper cause to do so. However, if the discipline or dismissal is motivated in any way by anti-union feelings, then it might not matter whether the employer has proper cause. Acting on anti-union motivation will generally amount to an unfair labour practice, even if the action itself might otherwise be permissible. 

It is not an unfair labour practice for the employer to make a change in its operations that is reasonably necessary for the proper conduct of its business (business as usual).

An employer can't refuse to agree, in a first collective agreement, that all employees will pay union dues to the union except if there is a religious exemption.

During a strike or lockout, an employer can't use replacement workers contrary to Section 68 of the Code.

There are some prohibitions in the Code that apply specifically to unions. Some of these prohibitions arise in the course of a union's organizing drive. Others arise in the context of the union's relationship with its members.

Prohibition on organizing on employer property (Section 7)

Unions can't organize on the employer's property during working hours, unless they have permission from the employer. This means that a union organizer or employee acting on a union's behalf can't organize while at work, during working hours.

 Exception to the prohibition on organizing on employer property
If the employees live on the employer’s property, for example at a work camp, the union can apply to the Board for permission to come onto the employer’s property to organize the employees. The Board may also order the employer to provide the union with food and lodging. The employer must provide similar food and lodging as it provides to the employees. The employer can charge the union for food and lodging, for the same price as its costs for employees.

Internal union affairs (Section 10)

The Code has specific requirements for the internal administration of a union, including a right to procedural fairness under the union's constitution and union discipline. Learn more about internal union affairs.

Prohibition on arbitrary, discriminatory, or bad faith representation (Section 12)

The Code gives a union very broad decision-making authority in its dealings with the employer. This includes the bargaining process for the terms and conditions in the collective agreement and the grievance arbitration process.

When a union is representing an employee, or a group of employees, in relation to the employer and employment, it can't do so in a way that is arbitrary, discriminatory, or in bad faith.

Learn more about arbitrary, discriminatory, or bad faith union representation.

 Labour Relations Code, Section 11 - Requirement to bargain in good faith

Once a union is certified to represent a group of employees, the employer and the union have a duty to attempt to bargain a first collective agreement, and then renewal collective agreements as they expire.

This means they have to meet and make every effort to conclude a collective agreement. If either party fails or refuses to do so, the Board may find that they failed to bargain in good faith. This is an unfair labour practice.

If the Board finds there has been an unfair labour practice, it has many options. For example, the Board may:

• order an employer to reinstate an employee to their employment with back pay
• order the person, employer, or union to stop the prohibited conduct
• order an employer to post information in the workplace or a union to provide a statement to its members

If the unfair labour practice relates to organizing and certification, the Board may:

• order a remedial certification (i.e. certify the union without a vote),
• reject union membership cards, or
• cancel a vote.

The Board moves quickly to deal with complaints that an employee has been discharged, suspended, transferred, or laid off from employment or otherwise disciplined contrary to the Code when no collective agreement is in force (Section 5(2)). Within three days of receiving an application, the Board will hold a hearing and it will issue its decision within two days after the hearing ends.

Even if a hearing isn't held within three days under Section 5(2), the Board will still deal with the unfair labour practice on an expedited basis. Often the Board will appoint a Special Investigating Officer to help the parties resolve the dispute. However, if the dispute can't be resolved informally, the Board will either hold an expedited hearing or decide the application off the written material quickly.

If you believe you have been discharged, suspended, transferred, or laid off from employment at a time and in a manner that amounts to an unfair labour practice, you should contact the union. If there is no collective agreement in force, you can also file an application with the Board yourself.

To apply under Sections 5, 6, 7, and 9:

1. Complete the Unfair Labour Practice Complaint Form
   FORM 5: UNFAIR LABOUR PRACTICE COMPLAINT
2. Submit the application by email, mail, or courier
3. Serve the other party as required by the Rules
4. Arrange to pay the $100 filing fee

To apply under Section 11:

1. Complete an application by written submission (i.e. letter)
   1. Make sure the application has the information required as per the Rules
2. Submit the application by email, mail, or courier
3. Serve the other party as required by the Rules
4. Arrange to pay the $100 filing fee

To apply under Section 10 and 12:

Internal affairs (Section 10)
Arbitrary, discriminatory, or bad faith union representation (Section 12)

Filing by email? The Board only accepts supporting information in PDF, MP3, or MP4 format. Supporting information cannot be provided by a file-share link at this time.