Mike Weiler wrote this article for the Spring Issue (April – June 2020) of the Signals Magazine, publication for members and friends of the New Car Dealers Association of BC – read the issue here.
LABOUR RELATIONS CODE CHANGES—WHY ARE B C FED OFFICIALS SMILING?
When the NDP formed government in 2018, they substantially altered employment laws in support of unions. This reflected the pendulum swing of labour reform in BC upon change of government. Significant changes were made to Employment Standards, Human Rights, and the Workers Compensation Act where the NDP plans to implement the findings of 4 Reports, most of which will make employers’ lives more complicated and expensive.
The NDP also struck a 3-person Panel to review the Labour Relations Code (“Code”) as they had done in 1992. On May 30th 2019 Bill 30, the Labour Relations Code Amendment Act, was passed into law.
Space does not permit a thorough review of all the changes to the Code. This article focuses on those which make it easier for a union to certify a non-union car dealership or expand its certification in a partially-unionized one. While these changes have not received much fanfare, it is our view that the worsening economic conditions in BC will create greater opportunity for unions to utilize these rules to increase membership, which will result in costly and burdensome collective agreements that are counterproductive to the workplace.
UNFAIR LABOUR PRACTICES, EMPLOYER FREE SPEECH AND REMEDIAL CERTIFICATION
These changes were to be expected. Changes were made to the Code to enhance union organizing rights. BC Federation of Labour president Laird Cronk summed it up nicely:
“British Columbia remains a low-wage province, and precarious work is on the rise. The best antidote to economic inequality is greater union density.”
Three key changes make it harder for employers to fend off a union organizing drive. This increased risk of unionization applies to both non-union operations and the non-union departments of a unionized car dealer where the union seeks to organize the remaining employees.
First, the new Code restricts employer free speech. In 2002 the Liberals expanded employer free speech in section 8 of the Code to allow the employer to discuss almost any topic, including unions, without running afoul of section 6 (which prohibits an employer from interfering with a union). Under Bill 30, section 8 protection now only applies to “facts or opinions reasonably held with respect to the employer’s business”. If it feels like “déjà vu all over again” it’s because this was the language of the Code under the NDP from 1992 to 2002.
Secondly, the time period for the certification vote has been reduced from 10 days to 5 business days from the time of the application. This is a huge advantage to the unions especially because they control the timing of filing (perhaps filing at 3:59pm on a Friday so the employer won’t find out until Monday). Employers who don’t anticipate the application have little time to prepare their strategy and avoid unfair labour practices (“UFLP”). This past Christmas our client faced a certification application filed Friday December 20th with the vote scheduled December 27th. You can imagine how difficult it was for the employer to properly respond.
Thirdly, the power of the Labour Relations Board to order automatic certification without a vote to remedy an UFLP has been broadened to allow such a Draconian remedy whenever the LRB “believes it is just and equitable in order to remedy the consequences of the prohibited act”. We don’t yet have any decisions on this provision, which leaves much uncertainty for employers who might cross the line and commit an UFLP.
For those who think these changes will not be significant or that there won’t be further changes I refer to the following passage from the Review Panel’s Report:
“The Panel is acutely aware the secret ballot vote can only be an effective mechanism for employee choice if the Code deters and prevents employers from engaging in unfair labour practices and provides meaningful consequences for such practices.
The exercise of employee choice through certification votes must be protected by shortening the time-frame for votes, ensuring the expeditious and efficient process for certification applications and unfair labour practice complaints, together with expansion of the Board’s remedial authority. If these enhanced measures are not effective, then there will be a compelling argument for a card check system.”
These changes are huge for dealers faced with a certification application. Therefore employers are wise to consider the very real possibility their operations may be organized and take steps now to prepare.
*After this article was prepared the LRB issues its first decision interpreting the new remedial certification provisions. The Board ordered remedial certification where wo union organizers were terminated just as the union organizing drive started. The LRB gave a very broad interpretation to these new provisions: see Salade ETCETERA Inc., 2020 BCLRB 34. A more detailed summary will be posted in a new blog article soon.