Northern Exposure

Ghost of Christmas Past: Firing Union Supporters Can Come Back to Haunt You

By David McDonald

Most Canadian employers are familiar with what they can and can’t do when they’re the target of a union-organizing campaign. Labor legislation across Canada prohibits management from terminating or disciplining employees because of trade union affiliation while a union is attempting to gain representational rights. A recent decision from British Columbia, Playtime Peardonville Ventures Ltd. and USW, Local 2952, warns that those prohibitions may continue in a workplace even months after the employees have voted to get rid of the union.

Union decertified in 2009
The United Steelworkers, Local 2952, had represented the employees at Chances Abbottsford, in British Columbia, since 1997. Chances was a former bingo hall that had been converted into a gaming center. It was clear that some employees weren’t satisfied with the representation they were receiving from the union since employees had unsuccessfully tried to leave the union, or “decertify,” in 2005 and 2008. On their third application, which was filed in July 2009, the employees’ decertification efforts were finally successful and the union’s certification was canceled.

Employees later terminated

By the fall of 2009, Chances was having economic troubles. After reviewing its staffing situation, management decided to reduce the workforce by four people. According to management, the people selected for termination were satisfactory employees, but when compared to others, they were viewed as weaker performers. It terminated the employees in late October 2009.

Complaint by decertified union
Surprisingly, the decertified union then filed a complaint at the British Columbia Labour Relations Board alleging that the employer’s decision to dismiss four employees after the successful decertification campaign was motivated by the fact that they were union supporters.

It argued that the terminations could reasonably be expected to have the effect of compelling or inducing other employees to refrain from becoming or continuing to be members of a trade union. The former union asked that the employees be reinstated to employment with back pay.

Board finds fault with employer
In its decision, the Board stressed that the employer must do more than prove that it had reasonable grounds for its action. It also must convince the Board that the action was not motivated in any way by anti-union motives. If the employer can offer a credible explanation, on its face free of anti-union animus, then the union must present evidence proving the anti-union motive.

The Board found that the employer’s decision to “correct the bottom line” by eliminating positions was a credible explanation to terminate some employees. But whether the choice of particular people for dismissal was untainted was a separate issue. Each of the employees terminated said that he or she was a union supporter and had opposed the decertification campaigns. The Board evaluated their terminations separately, asking the employer to prove that each decision wasn’t influenced by anti-union motivation.

The Board acknowledged that the employer wasn’t required to show proper cause or indeed any cause for its dismissal of the terminated employees, and it had the right to do so at any time with notice. It also acknowledged that it’s not up to the Board to judge the correctness of the decision from a business or human resources point of view. Instead, the Board stressed that it was concerned only with whether the employer provided a credible explanation, free on its face of anti-union motivation, for its choice of which employees to dismiss.

After assessing each decision-making process, and effectively finding that it didn’t believe the employer, the Board found that there was anti-union motivation — in part because the terminated employees testified that there were other employees who were worse performers!

Remedy
That left the issue of remedy. The employer argued that reinstatement wasn’t appropriate. To reinstate the terminated employees to their former positions would lead to other terminations. Paradoxically that would mean that the other employees would be let go because they were not union supporters, resulting in another violation of the British Columbia Labour Relations Code.

Notwithstanding the employer’s novel argument, the Board ordered the four employees reinstated and awarded close to seven months’ back pay.

After effect
This decision shows that even after a union is no longer in the picture, employers could still be subject to heavy penalties for breaches of labor legislation. When selecting individuals for termination, an employer needs to be able to demonstrate objectively its rationale for making the decisions that it does. Even when a union is no longer representing employees in a particular workplace, it can still make its influence felt.