No Right (to Organize) Without a Remedy:
Evidence and Consequences of the Failure
to Provide Compensatory Remedies for
Unfair Labour Practices in British Columbia
Sara Slinn*
leading employers
(ULPs) employers can use
Employees and unions encounter significant risks
during union organizing and often see their efforts thwarted
by employers. Labour law regimes attempt to minimize
these risks by rendering unlawful a number of unfair labour
practices
to prevent
unionization. But labour relations boards (LRBs) in Canada
often avoid awarding full compensation for the harm ULPs
cause,
to still view ULPs as
advantageous courses of action with only moderate
associated costs.
The author argues that this problem can be solved or
greatly mitigated without the need for formal reforms;
LRBs rather must come to embrace the full range of
remedial powers they already hold. Through an empirical
analysis of cases brought to the British Columbia Labour
Relations Board,
shows how LRBs
systematically choose to avoid compensating particular
categories of harm, whether to individual or collective
employee interests, or to the interests of the union. This
failure is due to a misapplication of the principle of
voluntarism, which seeks to have labour relations systems
assist the voluntary resolution of labour disputes between
unions and employers. By not requiring full compensation,
LRBs
employers voluntary
commitment to the labour relations system, but doing so
inevitably causes the system to work against employees
and unions. Voluntarism is not appropriate during the
union-organizing period, when a union has yet to be
established, and when it is thus vital that the rights of
employees and unions be enforced and adequate remedies
provided.
to maintain
the author
attempt
utiliser
pour
peuvent
empcher
Les employs et les syndicats encourent des risques
considrables
lors du processus dorganisation dun
syndicat et leurs efforts sont souvent contrecarrs par les
employeurs. Les rgimes de droit du travail tentent de
minimiser ces risques en rendant illgales un certain
nombre de pratiques dloyales de travail (PDT) que les
employeurs
la
syndicalisation. Les commissions des relations de travail
(CRT) du Canada vitent pourtant souvent daccorder la
pleine compensation pour le tort caus par les PDT, ce qui
amne les employeurs percevoir les PDT comme des
voies daction avantageuses et faibles cots.
Lauteure argumente que ce problme peut tre
rsolu ou du moins grandement attnu sans rformes
formelles ; les CRT doivent par contre prendre la pleine
mesure des pouvoirs de redressement dont ils disposent
dj. travers une analyse empirique de cas entendus par
la Commission des relations de travail de la Colombie-
Britannique,
les CRT
choisissent systmatiquement dviter de compenser
certaines catgories particulires de prjudices, que ce soit
dans le cas des intrts demploys individuels ou
syndiqus ou dans le cas des intrts de syndicats. Cet
chec est d lusage erron du principe du volontarisme,
qui insiste sur le fait que les systmes de relations de travail
cherchent dabord assister les syndicats et les employeurs
dans la rsolution volontaire de leurs conflits de travail. En
nexigeant pas la pleine compensation, les CRT tentent de
maintenir lengagement volontaire de lemployeur dans le
systme des relations de travail, mais le systme se trouve
alors invitablement travailler contre les employs et les
syndicats. Le volontarisme nest pas de mise pendant la
priode dorganisation dun syndicat, alors que ce dernier
nest pas encore tabli et quil est donc essentiel que les
droits des employs et des syndicats soient respects et
protgs par les voies de droit adquates.
lauteure dmontre comment
* Assistant Professor, Osgoode Hall Law School, York University. My thanks to Tim Bartkiw,
Jonathan Eaton, Judy Fudge, John Godard, Erik Knutsen, Bruce Pardy, and Eric Tucker for their
helpful comments and suggestions on earlier drafts of this article, and to Andrew Reynolds for his able
research assistance. This research was supported by a Borden Ladner Gervais Research Fellowship.
Sara Slinn 2008
To be cited as: (2008) 53 McGill L.J. 687
Mode de rfrence: (2008) 53 R.D. McGill 687
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Introduction
A. The Problem
B. Old Solutions
C. An Alternative Approach
I. Unfair Labour Practices: Harm Caused During Organizing
A. Individual Employee Interests
B. Collective Employee Interests
C. Union Interests
D. Harms Caused by Particular ULPs
1.
2.
Illegal Termination
Illegal Employer Communication
II. ULP Complaints and Findings
A. Relative Frequency of ULP Complaints by Party
B. Relative Frequency of Types of Employer ULPs
III. ULPs and the Remedial Mandate of Labour Relations
Boards
IV. Compensatory Potential of Available Remedies
A. Remedies for Harm to Individual Employee Interests
B. Remedies for Harm to Collective Employee and Union
Interests
1. Communication and Access Orders
2. Remedial Certification
3. Second Vote
4. Monetary Compensation to the Union under Make-Whole
Orders
5. Legal Costs
6. Costs of Organizing
C. Noncompensatory Remedies: Declarations and Cease and
Desist Orders
D. Restorative Potential Revisited
V. Analysis of Remedial Awards
A. Termination cases
B. Speech Cases
C. Overall Trends
[Vol. 53
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VI. The Principle of Voluntarism
A. The Traditional Model of Voluntarism
B. Voluntarism in Canadian Labour Relations
C. Application of the Procedural Understanding of Voluntarism
D. Shortcomings of this Approach
1. Contrary to Evidence and Experience
2. Adjudication and Enforcement
3. Parties Interests
4.
5. Conclusion
Inappropriate for Organizing Disputes
VII. Consequences of Deficient Remedial Responses
A. Perverse Incentives
B. Violations as the New Norm
VIII. Conclusions and Recommendations
Appendix
723
723
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725
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729
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731
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[Vol. 53
Introduction
A. The Problem
Consider a typical tale of union organizing. Employees who support unionization
begin speaking with others, encouraging them to sign membership cards and
participate in union organizing. The union being considered by these employees holds
a meeting for employees outside the workplace, and organizers talk to employees in
the company parking lot.
After a few days, the employer gets wind of this activity and is alarmed at the
prospect of a union. It fires two employees it believes are involved in the union drive.
The employer may give another explanation for the terminations, but it will have
committed an unfair labour practice (ULP) if the labour relations board (LRB) finds
the decisions were tainted with anti-union animus. The standard remedy awarded in
such cases is the reinstatement of each employee with back pay. According to the
LRB, the wrong is then remedied.
But other employees have seen what has happened to their co-workers. If the
union fails to be certified, neither the union nor the LRB will be available to protect
employees from the employer, who clearly disapproves of union sympathizers. Some
employees may worry that the employer will figure outor think it has figured out
who voted for the union when it gets the election results. Support for the union then
withers. Employees cease to talk about organizing. They avoid co-workers they think
are supporters for fear of being seen associating with them. Some decide not to show
up to vote, and since the union needs a majority of ballots cast to be certified, the vote
is lost.
One of the fired employees decides he does not want to return to his former
position. He takes his two weeks of back pay and looks for work elsewhere. The other
returns and is fired without cause a month later. This dismissal is not found to be a
ULP and the termination stands. At the next workplace that the union tries to
organize, the rumour quickly spreads: at the last previously targeted employer, the
union failed and workers were fired for trying to unionize.
The result is that the employer has defeated union organizing at little cost or risk
to itself. Its workers remain without representation, not having had a chance to freely
express their true wishes. The union is left with the costs of the ULP complaint, lost
resources from the failed organizing campaign, and potential harm to its reputation.
This story is a common one and illustrates the interdependence of rights and
remedies. It reflects a major weakness in LRB responses to employer ULPs during
organizing campaigns and illustrates the necessary interdependence of rights and
remedies. Labour remedies are widely criticized as inadequate, in the sense that they
S. SLINN NO RIGHT (TO ORGANIZE) WITHOUT A REMEDY
2008]
do not remedy harm caused by violations and therefore do not effectively deter
employers unfair labour practices, particularly during organizing.1 As a result, they
do not protect employees fundamental freedom to choose whether to have union
representationfree of employer interference. Organizing is especially important
because its outcome determines whether workers will have access to the rest of the
rights and protections of labour relations legislation.
691
1 Criticisms of the inadequacies of LRB remedies appear not only in academic literature, but in
the reports of expert committees charged with reviewing labour relations legislation and in the
labour communitys submissions to these committees, and are also made by lawyers representing
unions. For academic criticism, see e.g. Paul Weiler, Promises to Keep: Securing Workers
Rights to Self-Organization under the NLRA (1983) 96 Harv. L. Rev. 1769 [Weiler, Promises
to Keep]; Bernard Adell, Establishing a Collective Employee Voice in the Workplace: How
Can the Obstacles Be Lowered? in G. England, ed., Essays in Labour Relations Law: Papers
Presented at the Conference on Government and Labour Relations: The Death of Voluntarism,
School of Management, University of Lethbridge, 68 September 1984 (Don Mills, Ont.: CCH
Canadian, 1984) 3; Ron Lebi & Elizabeth Mitchell, The Decline in Trade Union Certification in
Ontario: The Case for Restoring Remedial Certification (2003) 10 C.L.E.L.J. 473. For critical
labour-review-committee reports, see e.g. Ontario, Labour Representatives to the Labour Law
Reform Committee of the Ministry of Labour, Partnership and Participation in the 1990s:
Labour Law Reform in Ontario (1991) at 28-32, 40-42 [unpublished, archived at the Newman
Library, Centre for Industrial Relations, University of Toronto] [Partnership & Participation];
British Columbia, Labour Relations Review Code Committee, Managing Change in Labour
Relations: A Discussion Paper (Victoria: Ministry of Skills Development and Labour, 1998), Part
3.2; British Columbia, Labour Relations Code Review Committee, Managing Change in Labour
RelationsFinal Report (Victoria: Ministry of Skills Development and Labour, 1998)
[Managing Change] at 59. Submissions to labour-review committees are also of interest. See
Telecommunications Workers Union, Response Submission of the Telecommunication Workers
Union to the British Columbia Labour Relations Code Review Committee (2003) at 3; United
Steelworkers of America, Submission to the Labour Relations Code Review Committee (Burnaby,
B.C.: United Steelworkers of America, 2003), Appendix A at 11 [USW Submission]; British
Columbia Federation of Labour, Submission to the Labour Relations Review Section Three
Committee (Vancouver: British Columbia Federation of Labour, 2003) at 49-52; Ontario
Federation of Labour, Submission by the Ontario Federation of Labour to the Ministry of Labour
on Modernizing the Ontario Labour Relations Act (Toronto: Ontario Federation of Labour, 2004)
at 14-18, online: Ontario Federation of Labour
District 6, A Return to Fairness: Restoring the Right of Ontarios Employees to Unionize: Submission
to the Ontario Minister of Labour (Etobicoke, Ont.: United Steelworkers of America, 2004)
[Return to Fairness] at 15-19, 24. For criticism from the labour law bar, see e.g. Patrick Dickie,
The Crisis in Union Organizing Under the B.C. Liberals (Vancouver: Hastings Labour Law
Office, 2005) at 9, 14-16, online: Hastings Labour Law Office
Union Organizing and B.C. Labour Law: An Update (Vancouver: Hastings Labour Law Office, 2006) at
11-13, online: Hastings Labour Law Office
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B. Old Solutions
Two approaches to this problem have been proposed. The first is to impose
punitive remedies, including financial penalties, on employers found to have
committed ULPs.2 The lack of LRB authority to impose penal sanctions has been
identified as a major gap in LRBs remedial approach to ULPs. Proponents of a
punitive approach contend that simply trying to restore the status quo using
accommodative and conciliatory approaches
to failure since
determinedly anti-union employers are likely to respond only to direct penal
sanctions.3
However, it is unlikely that LRB authority will be extended to allow punitive or
penal awardseven for repeated, serious ULPs.4 In addition, Bernard Adell points
out that LRBs may not be able to satisfy the requirement, under subsection 11(d) of
the Canadian Charter of Rights and Freedoms, that tribunals imposing penal
sanctions have a high level of independence from government.5
is doomed
2 See e.g. Adell, ibid. at 15; Return to Fairness, ibid. at 24. A Labour Relations Code Review
Committee in British Columbia noted that several labour organizations such as the British Columbia
Federation of Labour, College Institute Educators Association of British Columbia, United
Steelworkers of America, and the Telecommunication Workers Union, urged reform to LRB remedies
that would deter employer retribution against individual workers and impose financial penalties
against employers committing ULPs. The Committee noted, but did not address, these submissions
(British Columbia, Labour Relations Code Review Committee, Report to the Minister of Skills
Development and Labour (Victoria: Ministry of Skills Development and Labour, 2003), Appendix E
at 79). In particular, a treble back pay penalty (equal to triple the wages and benefits lost by the
employee) has been proposed for unlawful termination during organizing (Return to Fairness, ibid. at
24).
Punitive remedies have also been advocated in the United States. See Michael Weiner, Can the
NLRB Deter Unfair Labor Practices? Reassessing the PunitiveRemedial Distinction in Labor Law
Enforcement (2005) 52 UCLA L. Rev. 1579. A key feature of the Employee Free Choice Act was
treble back pay as a penalty for illegal terminations during organizing (U.S., Bill H.R. 1696, Employee
Free Choice Act, 109th Cong., 2005, s. 4; U.S., Bill H.R. 800, Employee Free Choice Act of 2007,
110th Cong., 2007, s. 4). A revised version of the bill passed in the House of Representatives on 1
March 2007, but was defeated in the Senate on 26 June 2007 (U.S., Bill S. 1041, Employee Free
Choice Act of 2007, 110th Cong. 2007). The Employee Free Choice Act of 2009 was introduced in
both the House of Representatives and the Senate in March 2009 and has since been referred to
committee (U.S., Bill H.R. 1409, Employee Free Choice Act of 2009, 111th Cong., 2009; U.S., Bill s.
560, Employee Free Choice Act of 2009, 111th Cong., 2009).
3 See e.g. Adell, supra note 1 at 15.
4 Ibid. The Supreme Court of Canada has recently confirmed that administrative tribunals are not
entitled to the type of absolute independence that characterizes the judiciary, and the degree of
independence for a particular tribunal is determined by the legislature (Ocean Port Hotel Ltd. v.
British Columbia (General Manager, Liquor Control & Licensing Branch), 2001 SCC 52, [2001] 2
S.C.R. 781 at paras. 22-23, 204 D.L.R. (4th) 33).
5 Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11
[Charter]. Adell also notes that the reverse onus of proof applying to many ULP prohibitions may also
violate the presumption of innocence in s. 11(d) of the Charter (supra note 1 at 15).
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An even greater obstacle to adopting punitive remedies stems from societys
reluctance to regard coercion of employees in a criminal light akin to commercial
fraud.6 Furthermore, punitive remedies are at odds with the role of voluntary action in
the labour relations system, and such changes are likely politically infeasible.7
A second proposed approach is to reduce the opportunity for employers to engage
in ULPs during organizing by accelerating the union-recognition process through
card-based certification and expedited processing of applications.8 Proponents argue
that these changes would allow certification to be achieved quicklyoften before
employers become aware of organizing activity. A related proposal is to prohibit
employers from disciplining, terminating, or removing any employee in a proposed
bargaining unit without leave from the LRB once the employer is aware of organizing
efforts.9
However, this approach is unlikely to be followed in the current political climate.
Legislative changes over the last decade and a half have moved away from card-
check certification toward mandatory representation elections,10 and LRB resources
6 Adell, ibid. at 15-16.
7 The recent experience in the United States with the repeated defeat of the Employee Free Choice
Act, which provided for a number of punitive remedies for employer ULPs, is an example of the
strong political resistance to such remedial expansion (supra note 2).
8 Paul Weiler is a leading proponent of this approach. See Promises to Keep, supra note 1. In
those jurisdictions employing mandatory vote-certification procedures, there is strong support within
the labour community to maintain, adopt, or restore accelerated, card-based, certification procedures.
For example, the report of a subcommittee of advisers to then Minister of Labour Moe Sihota
concluded that [t]he surface attraction of a secret ballot vote does not stand up to examination and
recommended a return to card-based certification (British Columbia, Ministry of Labour and
Consumer Affairs, Subcommittee of Special Advisors, Recommendations for Labour Law Reform
(Victoria: Ministry of Labour, 1992) at 26). After British Columbia had reinstated card-based
certification (which has since been reversed) a subsequent labour-legislation review committee
concluded from its consultations that it is not employees that want certification elections, but
employers. This committee chose to respect the wishes of employees and recommended that card-
based certification be retained (Managing Change, supra note 1 at 58). See also USW Submission,
supra note 1 at 9-14; OFL Submission, supra note 1 at 6-14.
9 Partnership & Participation, supra note 1 at 29.
10 Initially, card-check certification procedures were used throughout Canada. Mandatory vote
procedures have since been adopted in Nova Scotia in 1977 (though allowing card-based certification
for the construction industry) (An Act to Amend Chapter 19 of the Acts of 1972, the Trade Union Act,
S.N.S. 1977, c. 70, s. 24), Alberta in 1988 (Labour Relations Code, S.A. 1988, c. L-1.2, s. 31), British
Columbia from 1984 to 1992 (Labour Relations Code Amendment Act, S.B.C. 1984, c. 24, s. 43) and
in 2002 (Skills Development and Labour Statutes Amendment Act, S.B.C. 2001, c. 33, s. 24),
Newfoundland and Labrador in 1994 (An Act to Amend the Labour Relations Act, S.N. 1993, c. 58, s.
47), Ontario in 1995 (though the legislation allows unions to opt for card-based certification in the
construction industry beginning in 2005) (Labour Relations Act, 1995, S.O. 1995, c. 1, s. 10 [Ontario
Act]), Manitoba between 1997 and 2000 (Labour Relations Amendment Act, S.M. 1996, c. 32, s. 40),
and most recently Saskatchewan in 2008 (Trade Union Amendment Act, 2007, S.S. 2008, c. 26, ss. 3-
5).
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have also decreased dramatically.11 As a result, there is little prospect that card-based
certification, expedited hearings, or other means of reducing opportunities for
employer interference and delay will be introduced in many jurisdictions.
Both of these proposals would require significant changes to LRB powers or
procedures as well as a substantial commitment of political will that may prove, in the
end, to have limited effect.12
[Vol. 53
C. An Alternative Approach
This article proposes an alternative approach that does not require the expansion
of LRB authority or procedure. One reason for the lingering problem of employer
ULPs during union organizing lies in the choice and scope of remedies awarded by
LRBs. Current remedial awards generally do not fully compensate for harm caused
by wrongdoing. As a result, ULPs may provide a net benefit to employers even when
remedies are awarded, ultimately encouraging rather than deterring ULPs.
Both of the old solutions referred to above require reforms to the existing
statutory regime: the first would expand the remedial jurisdiction of the LRB, and the
second would change certification and complaints procedures. That is, both proposals
are based on the proposition that the existing statutory scheme is deficient in some
respect. In contrast, this article concludes that there is tremendous unrealized promise
in the existing processes and powers for addressing employer ULPs committed during
organizing. LRBs must come to realize the full potential of the compensatory or
restorative approach to labour remedies. Implementing a fully compensatory remedial
scheme would lessen or eliminate incentives for employer wrongdoing and reduce the
disincentives for employees and unions to complain of misconduct. This approach
11 For instance, at the British Columbia Labour Relations Board (BCLRB) the number of vice-
chairs shrank by more than half between 2000 and 2006, from 12 full-time and 2 part-time vice-chairs
in 2000 to 4 full-time and three contract vice-chairs by 31 December 2006. The number of staff
lawyers also dropped, from six full-time staff lawyers in 2000 to three in 2006. Meanwhile the number
of applications and complaints filed and disposed each year decreased only 39.2 per cent (from 2873
to 1747) and 39.6 per cent (from 2907 to 1757), respectively. See British Columbia, Labour Relations
Board, 2000 Annual Report (Victoria: Ministry of Skill Development and Labour, 2001) at 7, 83;
British Columbia, Labour Relations Board, 2006 Annual Report (Victoria: Ministry of Labour and
Citizens Services, 2007) at 6, 10-11, 42. For a discussion of Ontario Labour Relations Board
resources, see Lebi & Mitchell, supra note 1 at 476.
12 Even under card-based certification rather than mandatory votes, there is evidence that ULPs are
still prevalent and have significant, though lesser, negative effects on certification and viability of
bargaining relationships. See e.g. Terry Thomason & Suzanne Pozzebon, Managerial Opposition to
Union Certification in Quebec and Ontario (1998) 53 R.I. 750; Terry Thomason, Managerial
Opposition to Union Certification in Quebec and Ontario (1994) [unpublished, archived at McGill
University, Howard Ross Library of Management]; Chris Riddell, Union Suppression and
Certification Success (2001) 34 Canadian Journal of Economics 396; Karen Bentham, Employer
Resistance to Union Certification (2002) 57 R.I. 159.
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has the advantage of requiring no changes to LRB jurisdiction or procedure, and it is
compatible with and actually fosters a voluntary labour relations system.
This theoretical analysis is supported by an empirical analysis of ULP complaints
and findings arising from union organizing in British Columbia from 1990 to mid-
2007 (the study period).13 The study chooses to use data from the British Columbia
Labour Relations Board (BCLRB), which has the broadest jurisdiction and remedial
powers, and among the highest case loads, of Canadian LRBs.14 For these reasons, it
is a rich source of information for a case study of the ULP-remedy experience and
highlights the key problem addressed in this article: that despite having broad powers
to restore harm done by ULPs, LRBs remedial roles are mainly limited by LRBs
understanding of, and willingness to exercise, their remedial authority. Though this
analysis uses B.C. data, the results and conclusions drawn from it are nevertheless
broadly applicable to other jurisdictions.
Part I of this article introduces ULPs that can occur during organizing and
identifies three categories of harm that may be caused by employer ULPs during
organizing: harm to individual employee interests, harm to collective employee
interests, and harm to union interests. Part II examines B.C. ULP data to determine
the frequency of ULP complaints by employers, unions, and employees, as well as the
frequency of different categories of conduct prompting ULP complaints and resulting
in findings against employers. Part III introduces the principles governing LRBs
13 This data was collected by performing a date search for each year between 1990 and the end of
June 2007, inclusive, in Quicklaws British Columbia Labour Relations Board decisions database.
The database includes all ULP complaints resulting in a decision published by the BCLRB and,
therefore, does not include those that did not lead to a published decision. Each resulting decision was
then reviewed to determine whether it involved a complaint of ULPs committed during a union
organizing drive. All ULP complaints filed by unions, employers and individual employees against
any other party were included. Employee complaints of a breach of the unions duty of fair
representation, which are sometimes considered a form of ULP, were excluded from this sample
because such complaints are not directly relevant to the question of union organizing.
14 As described by one group of commentators, In British Columbia, the labour relations board has
reached its fullest flowering and enjoys plenary independent authority as well over conciliations,
strikes, picketing and grievance arbitration, inter alia. Other labour relations tribunals enjoy some, but
not all, of these responsibilities (Donald D. Carter et al., Labour Law in Canada, 5th ed. (Markham,
Ont.: Butterworths Canada, 2002) at para. 132).
In comparison with the BCLRBs case load of 1747 applications and 1757 cases disposed of in
2006, in their 200506 fiscal years the Alberta Labour Relations Board received 1025 cases and
disposed of 1182 cases, the Ontario LRB received 4295 matters and disposed of 4338, and the Canada
Industrial Relations Board received 757 cases and disposed of 809 (BCLRB, 2006 Annual Report,
supra note 11, Table 1, compiled from Alberta, Labour Relations Board, LRB Statistical Data
(Edmonton: Alberta Labour Relations Board, 2006), online: Alberta Labour Relations Board
Ontario Labour Relations Board Annual Report 200506 (Toronto: Ontario Labour Relations Board,
2006), Table 1; Canada, Industrial Relations Board, 200506 Performance Report (Ottawa: Treasury
Board of Canada Secretariat, 2006), Chart 1).
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remedial awards. This is followed in Part IV by an assessment of the compensatory
potential of remedies commonly awarded by LRBs. Part V uses this assessment to
empirically evaluate whether remedial awards issued by the BCLRB in termination
and employer-communication ULP cases tend to compensate all types of harm caused
by these forms of wrongdoing. This is followed in Part VI by an examination of the
principle of voluntarism, which strongly influences the administration of labour
relations, including the treatment of ULPs. Part VII considers the consequences of
routinely failing to provide fully compensatory remedies for employer ULPs during
organizing. Part VIII offers some concluding thoughts on this problem.
I. Unfair Labour Practices: Harm Caused During Organizing
A fundamental premise of labour legislation is that employees have the freedom
to choose whether to be represented by a union and to engage in lawful union
activities.15 To effectuate these rights the legislation proscribes as ULPs certain
conduct that interferes with these rights, and it grants the LRB broad powers to
provide creative remedies to restore and compensate harm caused by ULPs. In
general, an employer will be found to have committed a ULP during organizing
where its actions interfere with the rights of employees or the union to seek collective
representation.16 A ULP can be committed by an employer, a union, a person acting
on behalf of the employer or union, or any other person.17 This study is concerned
however with actions interfering with unionization. It therefore focuses on employer
activities during union organizing that might cause a union to file a ULP complaint.
This part proposes an analytical framework recognizing that employer ULPs
committed during organizing are capable of harming three distinct employee and
union interests: interests of the individual employee, collective employee interests,
and the interests of the union as an institution.18 Such harm may be pecuniary or
nonpecuniary, immediate or prospective.
15 See e.g. Labour Relations Code, R.S.B.C. 1996, c. 244, s. 4(1) [B.C. Code] (providing that
[e]very employee is free to be a member of a trade union and to participate in its lawful activities).
In Re Forano Ltd., Chair P.C. Weiler (as he then was) described this provision as the fundamental
premise of the whole statute ([1974] 1 Can. LRBR 13 at 17 (BCLRB) [Forano]).
16 See B.C. Code, ibid., ss. 6, 9, 14.
17 See e.g. ibid., ss. 6, 9.
18 Use of heuristics is subject to myriad dangers of manipulation, systematic bias, and errors in
judgment, all of which are well canvassed in the substantial literature on heuristics and the law,
including use of heuristics by legal decision makers. See e.g. Russell Korobkin, The Problems with
Heuristics for Law in G. Gigerenzer & C. Engle, eds., Heuristics and the Law (Cambridge, Mass.:
MIT Press, 2006) 45. This article recognizes the potential shortcomings of heuristics, offering this
analytical framework as a counterpoint to the outcomes of LRB decisions. However, I argue that LRB
decision makers appear to be, implicitly, employing a heuristic leading to systematic under-
recognition of, and thus failure to remedy, certain types of harm caused by employer misconduct.
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This heuristic serves in this article as the basis for defining a fully compensatory
remedy to restore harm caused by employer ULPs during organizing.19 It is then used
to assess the effects of two types of employer ULPs: illegal termination and illegal
communications. These categories were selected because they are common responses
by employers trying to defeat unionizing efforts and are the most frequently
committed types of ULPs. Nevertheless, one may readily apply the analysis below to
other forms of misconduct such as illegal discipline or discrimination against
workers.
This analysis reveals the complicated and interrelated nature of interests and
harm during organizing. It allows for an assessment, in Part II, of whether a given
remedy compensates each aspect of harm caused by the wrongdoing and, therefore,
whether it is fully compensatory.
A. Individual Employee Interests
Individual employees have a substantive interest in their job and workplace,
including the content of their work, remuneration, other terms and conditions of their
employment, and the physical and social work environment (including relationships
of employees to management, customers or clients, and other employees). The
importance of this interest reflects the central significance of work in employees
lives. Employment is necessary for most people to support themselves as well as the
other endeavours and responsibilities in their lives. Work is recognized as an
important vehicle for self-fulfillment and for individuals to realize their human
potential.20 This individual employee interest can therefore be harmed through any
diminishment in the terms or conditions of employment. Such a diminishment may
arise from being disciplined, being subjected to intimidation, coercion or threats, a
worsened working environment through, for example, increased surveillance by
managers or the creation of an intimidating or threatening workplace atmosphere, a
reduction in freedom or autonomy at work, and, of course, being fired and losing
employment altogether.
B. Collective Employee Interests
Individual employees also have a second, distinct, interest that is collective in
nature: an interest in the opportunity to engage in collective activity in the workplace
19 See Part IV, below.
20 The Supreme Court of Canada has repeatedly recognized the centrality of work to peoples lives.
See e.g. United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R.
1083 at para. 25, 176 D.L.R. (4th) 607; Retail, Wholesale and Department Store Union, Local 558 v.
Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156 at paras. 33-34, 208
D.L.R. (4th) 385; Dunmore v. Ontario (A.G.), 2001 SCC 94, [2001] 3 S.C.R. 1016, 207 D.L.R. (4th)
193.
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such as union representation.21 This includes an interest in having access to a free and
fair process for determining whether the group of employees they belong to will have
collective representation.22 The value of employees opportunity to express their
views and freely decide, without employer interference, whether they wish to be
represented by a union23 is one of the premises of the labour relations system and is
reflected in express statutory rights and protections.24 This collective interest exists
whether or not a particular worker prefers unionization. It is analogous to an
individual citizens interest in having a free and fair political-election process that
transcends political preferences. Apart from the intrinsic value of the opportunity for
choice, this collective interest may be of greater or lesser value to different
individuals. For some employees, it is a way of improving their working conditions
and therefore contributes to their substantive interests. For others, the reverse will be
true.
Many employer union-avoidance tactics (even those falling short of illegality)
may substantially reduceif not eliminateworkers ability to exercise their rights
to organize and the likelihood of unionization.25 When this happens, the collective
interest in unionizing, or at least in having the opportunity to freely decide whether to
have union representation, is diminished and may even be lost altogether. ULPs harm
to the collective employee interest often arise from harm directed at individual
21 The Supreme Court of Canada has recently recognized that the freedom of association enshrined
in s. 2(d) of the Charter (supra note 5) has both an individual and collective dimension, and it has
struggled to reconcile collective employee representation with this Charter freedom (Health Services
and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R.
391, 283 D.L.R. (4th) 40). For a comprehensive critique of the Courts approach to this question, see
Brian Langille, The Freedom of Association Mess McGill L.J. [forthcoming in 2009]. Now that
collective bargaining is recognized as a protected Charter right, it may be that collective employee
interests, including protection from and remedies for ULPs, will be entitled to enhanced protection.
22 Robert J. Flanagan describes this as an interest in the opportunity for concerted activity and
describes harm to the collective employee interest as the external effects of violations on a general
effort to pursue concerted activity (Remedial Policy and Compliance with the NLRA in
Proceedings of the Thirty-Ninth Annual Meeting of the Industrial Relations Research Association
Series, December 2830, 1986 (New Orleans: Industrial Relations Research Association, 1986) at 26).
Weiler also speaks of group harm caused by ULPs (Promises to Keep, supra note 1).
23 Benefits from union representation can be significant. Unionized workers often enjoy
significantly higher wages and benefits than similarly situated nonunion workers, and they benefit
from an enforceable grievance procedure, and from the workplace voice provided by collective
bargaining. See Ernest B. Akyeampong, Unionization and the Grievance System (2003) 4:8
Perspectives on Labour and Income 5.
24 The fundamental right created by labour legislation is the employees right to organize, to support
and participate in a unions lawful activities, and to bargain collectively. See e.g. B.C. Code, supra
note 15, ss. 4(1), 11, 45(1)(a), 46(1). This right is protected by statutory prohibitions against dismissals
and other discrimination, threats, coercion, or intimidation. See e.g. B.C. Code, ibid., ss. 5, 6, 9. See
also Weiler, Promises to Keep, supra note 1 at 1787-89 (discussing the U.S. version of this basic
right and its protections).
25 See Bentham, supra note 12; Riddell, supra note 12.
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employees that, in the first instance, affects individual interests. As discussed below,
employer misconduct directed at individual employees, such as illegal termination,
may affect collective interests most seriously.
699
C. Union Interests
The third category of potential harm is to the unions own interests. These
interests are separate fromand at times may even conflict withemployees
individual and collective interests. Unions are institutions that exist independently of
their members, with goals and concerns often extending beyond a single workplace or
group of workers.26 They invest significant resources in campaigns that are often
several months long and involve full-time organizers employed by the union, multiple
employee meetings, and campaign literature. Their interests in organizing are both
immediate and prospective, and they value the reputation and credibility successful
organizing establishes during campaigns at the target workplace and beyond.
A particular campaign may focus on organizing a workplace immediately or may
be part of a lengthier organizing effort. In lengthier efforts, the union expects the
employer to successfully thwart the first attempt at organizing but intends to build
support so that a later attempt may succeed. Organizing strategies can also extend
beyond a specific workplace. The union may seek to organize all workplaces in an
entire industry (e.g., all casinos). The union may also focus on a particular employer
(e.g., Wal-Mart) and try to unionize as many of its locations as possible. In these
cases, the unions overarching concern is with the target group of workplaces rather
than any specific location.
Finally, unions bear the costs of the certification application and of investigating
and pursuing any associated ULP complaints, including legal costs, which may be
substantial. Where the employers ULP has illegally deterred workers from
supporting unionization, the unions organizing efforts may be partly or wholly
wasted, leading to the additional costs of re-establishing support among employees
following these ULPs.
D. Harms Caused by Particular ULPs
As is shown in Part II.B, illegal terminations and communications with
employees are the most common types of employer ULPs committed during union
organizing. Both types have the potential to impose a variety of harms on employees
and unions.
26 Originally, and unlike corporations or societies, unions were treated as voluntary organizations
without an existence or identity separate from their membership. Unions are now commonly treated as
legal entities capable of action under their own name (though this differs among jurisdictions). Legal
status aside, recognizing unions as institutions separate from their members more accurately reflects
how they actually operate.
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1.
Illegal Termination
When an employer improperly discharges an employee during union organizing,
its purpose may be any or all of the following: to remove a particularly effective
union supporter, to remove an employee whom management believes to be active in
the union drive, or to set an example for other employees, demonstrating what may
happen to union supporters and thereby intimidating or coercing employees to avoid
supporting unionization. This employer action can harm both employee and union
interests.
Harm to individual employee interests most evidently occurs where an employee
is unlawfully terminated, disciplined, or otherwise discriminated against by the
employer. An employee who is illegally dismissed, for instance, suffers lost income
and benefits, as well as the distress of being fired and possibly other consequent
losses, such as penalties for being unable to pay debts or lost opportunities for
investing while unemployed. Dismissal may also engender
longer-lasting
consequences for the employee, such as the increased difficulty in getting hired
resulting from having been fired from a previously held jobparticularly before the
LRB determines that the termination was unlawful.
Beyond these obvious negative consequences, such actions go to the essence of
the workplace experience for employees, emphasizing the employers overwhelming
power and prerogative to be arbitrary, and underscoring employees subordination.
This creates an atmosphere of fear, intimidation, and distrust in the workplace that is a
detriment to employeeswhether or not they were the target of the employers
action, and whether or not they are actually inclined to unionize. The fear influences
employees collective interests by effectively depriving employees of free choice
about whether to unionize. Out of fear that they will be punished like their colleague,
employees will be discouraged from participating in present or future opportunities
for unionization.
As noted above, the employer may intend to dissuade other employees from
supporting the union drive by demonstrating what happens to union supporters. Paul
Weiler argues that employers bent on union avoidance illegally fire employees to
benefit from the broader impact of the termination on other employees: break[ing]
the momentum of the organizing campaign.27 The chilling effect of even isolated
illegal terminations during organizing is well recognized,28 and empirical evidence
shows that this message is effectively communicated to employees.29 The motivations
27 Weiler, Promises to Keep, supra note 1 at 1788.
28 Re Valdi Inc., [1980] OLRB Rep. 1254 at para. 24 [Valdi].
29 For instance, a study of ULP complaints during organizing in British Columbia between 1987 and
1988 found that illegal terminations were associated with a 31 per cent reduction in the probability
that the certification application would succeed (Riddell, supra note 12 at 405-06).
In the United States, 79 per cent of workers surveyed said that employees seeking union
representation will likely lose their jobs, and 41 per cent of nonunion workers said they believe they
701
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for and effects of other unlawful treatment such as discipline, discrimination, or
changes to conditions and terms of work can be similar.30
Even if employees do not change their minds about unionization as a result of the
ULP, they may be convinced that it is too risky to support or participate in
unionization. Consequently, the resources spent by the union on its organizing
campaign may have been wasted, in whole or in part. Less obvious is the harm to the
unions image and its loss of credibility, not just among those workers at the location
where the ULP occurred, but among other existing and potential union members. The
employers misconduct can bring into question the unions ability to effectively
represent employees and protect its supporters from illegal retribution.
It may be very difficult and expensive for the union to offset the negative effects
of the employers misconduct, to reassure employees, and to regain their trust and
support, particularly where the union has limited contact with workers on the
employers property. Therefore, apart from the immediate setback to this certification
campaign, and the potential cost of a ULP complaint, the employers illegal
behaviour may hamper the unions future campaigns. Illegal terminations can thus
harm both the unions immediate and future interests.31
2.
Illegal Employer Communication
Unlawful employer communications to employees can arise in a variety of
circumstances. Sometimes such a communication involves an employer who,
determined to avoid unionization, takes advantage of its access to employees by
illegally communicating anti-union messages to them. Other times an employer may
simply express its views about unionization or try to understand the nature of the
dissatisfaction believed to be driving its workers toward unionization. Inadvertently,
the employer may cross the line. The employer may genuinely not intend to threaten,
intimidate, or coerce workers with its communications, but this may well be the
effect.
to employees, such as one-on-one
Unlawful employer communications
conversations or group meetings, can negatively affect employees individual and
would lose their own jobs if they tried to unionize. The Dunlop Commission, which commissioned
this survey, concluded that [t]his fear [of illegal termination] is no doubt one cause of the persistent
unsatisfied demand for union representation on the part of a substantial minority of American
workers (U.S., Department of Labour and Department of Commerce, The Dunlop Commission on
the Future of Worker-Management Relations: Final Report (Washington, D.C.: United States
Government Printing Office, 1994) at 40, online: Cornell University DigitalCommons@ILR
No similar data is available for Canadian workers.
30 Riddell also found that ULPs directed at individual employees reduced the likelihood of
certification by 7 per cent (supra note 12 at 405).
31 There is empirical evidence that ULPs during organizing have significant, negative, short-term
and long-term effects on union support. See e.g. Bentham, supra note 12.
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collective interestsparticularly where the communication is illegal, such as implicit
or explicit threats to workers employment.32 The employee who is the target of the
communication, and who is threatened, intimidated, or coerced, clearly suffers harm.
Based on her nonunion experience, the employee does not feel she has the privilege
of refusing to comply with her employers questioning or direction to attend an anti-
union meeting and listen to whatever the employer has to say. To refuse, or to leave
such a meeting, would be insubordination inviting discipline. As with illegal
terminations, other employees who merely witness or learn of the incident may also
be harmed by the atmosphere of fear and uncertainty created by the employer.
Furthermore, the employer has access to employees at all times during working
hours, whereas the most the union can do without the employers consent is try to
engage workers on their way in or out of workperhaps in the parking lotor have
other employees involved in the campaign try to speak to them during unpaid breaks.
Unlike most unions, employers can also telephone or send mail to employees homes,
showing employees that their employer can reach them in their private sphere. This
contrast is apparent to employees, and it tells them that in the workplace the union is
the interloper without legitimate role or voice. Not only may these employees be
discouraged from supporting the union, but they may even be deterred from
participating in the process, whether or not they continue to support the union.
Therefore, the potential harm to union interests resulting from illegal employer
communications is similar to the harm arising from unlawful termination, discussed
above. It can undo past organizing efforts, hinder future organizing, and threaten the
union with the expense of a ULP complaint.
II. ULP Complaints and Findings
An examination of ULP complaints during union organizing in British Columbia
over the study period reveals that the great majority of these complaints were brought
against employers, that employers were the party most often found to have engaged
32 A study of ULP complaints during organizing in British Columbia between 1987 and 1998 found
that specific types of illegal employer communications were associated with reductions in the
probability of certification. Group coercion was associated with a 29 per cent reduction (Riddell,
supra note 12).
A survey of 54 Ontario and Quebec unions found that employees support for unionization and
likelihood of certification were both significantly reduced (in one or both jurisdictions) by use of the
following union avoidance tactics: captive audience speeches held by the employer, distribution of
anti-union literature, employer promises of increased wages and benefits, tightening of work rules,
threats against union supporters, and interrogating workers. The researchers concluded that captive-
audience meetings were the most effective anti-union tactic (Thomason & Pozzebon, supra note 12).
S. SLINN NO RIGHT (TO ORGANIZE) WITHOUT A REMEDY
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in ULPs, and that illegal terminations and illegal communication with workers
account for most ULP complaints and findings.33
703
A. Relative Frequency of ULP Complaints by Party
Table 1 and Figure 1, provided below, set out the number of ULP complaints filed
by unions, employers and individual employees against each party, and the number
and proportion of these complaints that were found to be meritorious (or granted) in
whole or in part by the BCLRB.
The data demonstrate that, of the 254 ULP complaints filed during the period of
the study, 197 (or 78 per cent) were complaints filed against employers, with the great
majority of these complaints (194 or 98 per cent) being filed by unions and only 3 (or
2 per cent) by individual employees. Only 54 complaints (or 21 per cent) were
brought against a union. Most of these were filed by employers (39 complaints),
although unions and individual employees brought 7 and 8 complaints against unions,
respectively. Only 3 ULP complaints (about 1 per cent of the total) were filed against
individual employees, with 2 being filed by a union and 1 by an employer.
Of the 172 ULP complaints found to be wholly or partly meritorious, there are
eight times more ULP findings made against employers (152 or 88 per cent of the
total) than against unions (19 or 11 per cent of the total). Meanwhile there was only a
single instance of an employee held to have committed a ULP during organizing.
33 Note that in the remainder of this article, ULP complaints refer to ULP complaints arising from
alleged misconduct during union organizing, unless otherwise indicated.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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704
Table 1: Unfair Labour Practice Complaints by Complainant and Respondent Filed
at and Granted by the British Columbia Labour Relations Board, 1990
June 2007
Respondent
Union
Employer
Individual
employee
Total
Complainant
Union
Employer
Individual
employee
Total
Complaints
Granted
% Granted
Complaints
Granted
% Granted
Complaints
Granted
% Granted
Complaints
Granted
% Granted
194
149
76.8
—
3
3
100
197
152
77.2
2
0
0
1
1
100
—
3
1
33
203
149
73.4
40
17
42.5
11
6
54.4
254
172
67.7
7
0
0
39
16
41
8
3
37.5
54
19
35.2
Figure 1: Percentage of Unfair Labour Practice Complaints and Convictions, by
Accused Party, at the British Columbia Labour Relations Board, 1990
June 2007
2008]
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705
B. Relative Frequency of Types of Employer ULPs
This study also examined the types of conduct involved in ULP complaints filed
by unions against employers and the findings against employers in these cases. Table
2 and Figure 2, provided below, set out the number of complaints that unions brought
against employers in the following categories: illegal termination of employees,
illegal termination combined with other, nonspeech, employer misconduct, illegal
communications with employees, illegal communications combined with other,
nontermination, unlawful employer conduct, complaints alleging all of unlawful
firing, communications, and other wrongdoing, and complaints involving employer
conduct not including termination or communication with employees.34
The data demonstrate that illegal firings and communications with workers, of all
the categories, gave rise to the most ULP complaints by unions against employers and
were the most common forms of unlawful employer behaviour during the organizing
period. Examining the relative frequency of different types of complaints and
meritorious complaints shows that over 90 per cent of both complaints and findings
of breach involved either unlawful employee termination or illegal employer
communication or both (93.8 per cent or 184 of 196 complaints, and 91 per cent or
139 of 156 ULP findings).
Cases involving termination as the sole alleged misconduct accounted for 37 per
cent of complaints (72 of 196 complaints filed against employers), and cases
involving both termination and allegations of other, nonspeech misconduct accounted
for another 6 per cent of such ULP complaints (12 cases). Termination was also the
most commonly held form of misconduct, with 32 per cent of breaches (49 cases)
involving termination as the sole ULP, and another 7 per cent (11 cases) involving
termination and another nonspeech ULP. Together these account for 43 per cent of
ULP complaints against employers by unions, and 39 per cent of such meritorious
ULP cases.
Unlawful communication to employees by employers was the second-most
common source of both union ULP complaints and findings against employers. Cases
involving employer speech as the sole alleged employer misconduct made up 12.2
per cent of complaints (24 cases) and 12.4 per cent of ULP findings (19 cases).
Complaints involving both speech and allegations of employer misconduct other than
unlawful termination accounted for another 12.2 per cent of complaints (24 cases)
and 14 per cent of ULP findings against employers (22 cases).
A further 20 per cent of complaints (40 cases) and 24 per cent of violations (37
cases) involved a combination of speech, unlawful termination, and other employer
misconduct. Finally, another 12 per cent of complaints (23 cases) and 9 per cent of
ULP findings (14 cases) involved misconduct other than speech or termination.
34 Employer communications, including group meetings, individual meetings, slide-shows, letters,
etc., are often referred to simply as employer speech.
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706
The data clearly demonstrate that employer speech and terminations are the most
significant sources of organizing ULP complaints and employer violations during the
period of study. Therefore, LRB responses to these categories of employer ULPs, and
the effect of these responses on employer, union, and employee behaviour, are
important to the question of employee free choice about unionizing.
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Table 2: Categories of Unfair Labour Practice Complaints by Unions Against
Employers Filed at and Granted by the British Columbia Labour Relations
Board, 1990June 2007
Complaints
Granted
Complaints
ULP Category
Termination
Termination & Other
Speech
Speech & Other
Termination & Speech
& Other
Other
Total
Number
Percent
-age
Number Percent
-age
72
12
24
24
40
23
196
37
6
12.2
12.2
20
12
100
49
11
19
22
37
14
153
32
7
12.4
14
24
9
100
Figure 2: Percentage of Complaints and Convictions, by Unfair Labour Practice
Category, Filed by Unions Against Employers at and Granted by the
British Columbia Labour Relations Board, 1990June 2007
707
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III. ULPs and the Remedial Mandate of Labour Relations Boards
Legislatures in Canada have granted LRBs extensive authority to order flexible,
novel, and appropriate remedies to rectify violations and restore injured parties to the
position they would have been in had the breach not occurred.35 These powers are
subject to few specific limitations: there must be a rational connection between the
breach, its consequences, and the remedy,36 remedies must be compensatory not
punitive,37 they cannot be contrary to the Charter,38 and they should promote the
purposes and duties of the legislation.39 Furthermore, a remedy should be designed to
deter further violations and should not be so minimal as to simply operate as a licence
fee for wrongdoing.40 As such, LRBs administer a purely compensatory and
restorative remedial regime … 41
In the mid-1970s, the make-whole approach to remedial awards was introduced
into Canadian labour law, borrowing a concept developed by the National Labor
Relations Board in the United States,42 and exercising the newly expanded remedial
jurisdiction of the BCLRB.43 Make-whole orders take a broad view of rectifying and
35 See e.g. B.C. Code, supra note 15, ss. 14(4)(b), 133(1)(c)-(f); Re Convergys Customer
Management Canada (2003), 90 C.L.R.B.R (2d) 287 (BCLRB) [Convergys]; Re Tandy Electronics
Ltd. (1980), 30 O.R. (2d) 29, 115 D.L.R. (3d) 197 at 215 (H.C.J.); Re Clark Reefer Lines Ltd., [1988]
B.C.L.R.B.D. No. 223 at 5 (QL) [Clark], cited with approval in Canadian Paperworkers Union,
Local 1115 v. McNamara, [1989] B.C.J. No. 2447 at para. 6 (S.C.) (QL) [McNamara]; Re P.R. Foods
Ltd., [2005] B.C.L.R.B.D. No. 223 at para. 47 (QL) [P.R. Foods].
36 National Bank of Canada v. Retail Clerks International Union, [1984] 1 S.C.R. 269 at 288, 9
D.L.R. (4th) 10.
37 Royal Oak Mines v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 at para. 68, 133
D.L.R. (4th) 129 [Royal Oak cited to S.C.R.]. This lack of jurisdiction for punitive remedies arises
from both the language of the general remedial provision and the existence of specific penalties in the
legislation. See George W. Adams, Canadian Labour Law, 2d ed. (Aurora, B.C.: Canada Law Book,
1993) at para. 10.1930. Uniquely, Manitobas legislation allows monetary awards whether or not any
loss was suffered (Labour Relations Act, R.C.C.S.M. 1987, c. L-10, s. 31(4)(e), (f) [Manitoba Act]).
38 Royal Oak, ibid. The decision was adopted in British Columbia by, for instance, Convergys
(supra note 35) and P.R. Foods (supra note 35).
39 Re CJS Victoria (CopperJohns), [2004] B.C.L.R.B.D. No. 46 at para. 84 (QL).
40 Convergys, supra note 35 at para. 40; Re The Delta Optimist, [1980] 2 Can. LRBR 227 at 247
(BCLRB) [Delta Optimist].
41 Delta Optimist, ibid. at 248.
42 Theodore J. St. Antoine’s seminal article A Touchstone for Labor Board Remedies influenced
the development of the make-whole remedy for bad faith bargaining in the United States ((1968) 14
Wayne L. Rev. 1039). For early cases involving National Labor Relations Board make-whole
remedies, see e.g. N.L.R.B. v. Tiidee Products (Tiidee No. 1), 426 F.2d 1243 (D.C. Cir. 1970); I.U.E.W.
v. N.L.R.B. v. Tiidee Products (Tiidee No. 2), 440 F.2d 298 (D.C. Cir. 1970); I.U.E.W. v. N.L.R.B.;
Tiidee Products v. N.L.R.B. (Tiidee No. 3), 502 F.2d 349 (D.C. Cir. 1974); N.L.R.B. v. Heck’s
Incorporated, 433 F.2d 541 (D.C. Cir. 1970); Food Store Employees Union v. N.L.R.B., 476 F.2d 546
(D.C. Cir. 1973).
43 Robinson, Little and Co. Ltd. v. Retail Clerks Union, Local 1518 (1975), [1976] 60 D.L.R. (3d)
712, 1 W.W.R. 171 (B.C.S.C.). Though the make-whole remedy originated in ULPs committed during
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compensating for harm done, as they recognize the twin objectives of compensating
the wronged party and withholding the fruits of the violation from the wrongdoer.44
These orders can include awards of general damages and reimbursement for
organizing, administrative, or legal costs resulting from the ULP. For nonorganizing
ULPs, such as a failure to bargain in good faith, make-whole remedies can include
damages for loss of opportunity to bargain.45 However, no compensation for loss of
opportunity is available as a remedy for organizing ULPs, even where the effect of
the wrongdoing defeats certification and deprives workers of union representation.
In addition to remedies available under the general remedial provisions, labour
legislation in several jurisdictions specifically provides for punishment or prosecution
for failing to comply with an LRB order.46 Penalties are often administered in the
form of fines and are meant to provide redress and protection; they are not intended to
simply be a licence fee for law-breaking.47 However, such penalties are seldom
either sought or applied.48 In short, the legislation establishes a scheme for providing
fully compensatory remedies for ULPs. This scheme emphasizes nonmonetary
awards except where no other remedy will compensate the harm done by the
violation, and it gives LRBs significant latitude to formulate a mix of remedial
elements to achieve compensation.
IV. Compensatory Potential of Available Remedies
The broad power of LRBs to fashion remedies that respond to harm caused by
ULPs translates into an array of possible awards. These remedies are capable, to a
greater or lesser degree, and individually or in combination, of addressing injuries to
collective-agreement negotiations, it is applied to ULPs arising in all contexts. The Labour Code of
British Columbia Amendment Act significantly expanded the LRBs remedial jurisdiction (R.S.B.C.
1976, c. 26).
44 Re Kidd Brothers Produce Ltd., [1976] 2 Can. LRBR 304 at 320 (BCLRB) [Kidd Brothers].
45 Clark, supra note 35 at 5; McNamara, supra note 35 at para. 6.
46 Section 158 of the B.C. Code makes it an offence for a person to refuse or neglect to observe or
carry out an order made under the statute (supra note 15). Individuals are subject to a maximum fine
of $1000, while corporations, unions, and employers organizations are subject to a fine not exceeding
$10,000 (ibid.). Other jurisdictions allow greater opportunities for penalties, such as providing that
any contravention or failure to comply with the legislation is an offence subject to monetary penalty.
See Labour Relations Act, R.S.A. 2000, c. L-1, s. 161 [Alberta Code]; Manitoba Act, supra note 37, s.
149; Ontario Act, supra note 10, s. 104(1); Canada Labour Code, R.S.C. 1985, c. L-2, s. 104 [CLC].
Some also provide that each day of non-compliance constitutes a separate offence (Ontario Act, ibid.,
s. 104(2)), or that the penalty is calculated according to the number of days in breach (Manitoba Act,
ibid., s. 145).
In certain jurisdictions, consent of the LRB, minister, or attorney general may be necessary to
pursue such penalties. See Alberta Code, ibid., s. 162; Manitoba Act, ibid., s. 148(2); Ontario Act,
ibid., s. 109(1); CLC, ibid., s. 104.
47 Adams, supra note 37 at para. 10.2280.
48 Wayne Mullins, a special investigating officer at the BCLRB, has confirmed this observation in
conversations with me.
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the interests of the union and to individual and collective employee interests. LRB
remedies can be classified according to the type of harm addressed. Some remedies,
such as reinstatement and back-pay awards, are directed solely at repairing harm to
individual employees. Other remedies have the potential to address both collective
and union harm, such as communication, access, and posting orders, remedial
certification and second votes, and monetary compensation. Finally, some remedial
orders are noncompensatory in nature, such as declarations and cease and desist
orders. This part introduces the principles governing remedies in labour relations and
analyzes the potential of available remedies to address harm to individual, collective,
and union interests.49
A. Remedies for Harm to Individual Employee Interests
Some remedies are directed primarily at harm suffered by individuals. Foremost
among these is reinstatement, which is commonly awarded in cases of illegal
termination. Reinstatement may or may not be accompanied by an award of back pay
for lost wages. Similarly, employees who have suffered discrimination, such as the
illegal denial of a benefit due to the employees union activity, are usually awarded
reversal of the discrimination, often including any lost back pay. Though
reinstatement or reversal of discrimination with back pay may appear to fully restore
individual employees, on closer examination such remedies fall short of fully
compensating the affected employee and provide scant relief to employees,
particularly those who have been illegally fired and who have no desire to return to
that workplace, perhaps having found new employment elsewhere. Moreover, these
remedies offer little or no remedy for harm to collective employee or union interests.
Remedies for harm to individual employee interests are most effective in
situations where they are promptly awarded, include both reinstatement and back pay,
and both the employee and employer are willing to re-establish the working
relationship.50 Even in such ideal circumstances, the employee may not be fully
compensated for his losses, as back pay does not cover all losses of income and
benefits. At the same time, individuals are expected to mitigate their losses during the
days, weeks, or months it takes for the ULP hearing to conclude and order a remedy.51
49 ULP restrictions and remedial authority are similar among Canadian jurisdictions. While
references in this part are made primarily to the B.C. Code (supra note 15), legislation from other
jurisdictions is referred to where it contains a notable variation.
50 The B.C. Code allows for interim remedies, including reinstatement, and specifically provides for
expedited ULP hearings (ibid., s. 5(2)).
51 See Re Securiguard Services Ltd., [2001] B.C.L.R.B.D. No. 36 (QL). Note that mitigation
requirements are less onerous under labour relations law than employment law because of the
potential for reinstatement in the labour contexta remedy that is not available under employment
law. See Re Jacmorr Manufacturing Ltd., [1987] OLRB Rep. 1086. Notably, the mitigation
requirement is also more demanding under the NLRA than in Canadian jurisdictions (Weiler,
Promises to Keep, supra note 1 at 1789).
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This is a burden upon the individual. In addition, once the individual has found a new
job, she may be uninterested in returning to the workplace she was fired from. In such
cases, reinstatement has no value to the individual, and is no hardship for the
employer.
In any event, reinstatement is a fragile arrangement that, to succeed, must survive
the employers resentment and possibly the employees reluctance to re-embrace the
employment relationship. As Weiler points out, an employer who is anti-union
enough to illegally fire a worker for supporting a union will probably react negatively
if forced by the LRB to rehire the employee. Furthermore, the employee will likely be
aware ofand wary ofhis employers attitude.52
Standing alone, reinstatement or reversal of the unlawful employee treatment and
compensation are not fully compensatorynot to the union nor to employees
collective interests, and perhaps not even to the individual directly affected by the
ULP. This is because the real harm caused is the fear of retaliation that the employer
has instilled in employees and the devastating effect this fear may have on the unions
organizing efforts. Reinstatement, reversal, and back pay orders, on their own, do
little to assure employees that, as one vice-chair of the Ontario Labour Relations
Board describes it, the employer is prepared to live within the requirements of the
statute and that effective remedies exist for those occasions where he will not … 53 A
truly restorative remedy would alleviate this fear. What is necessary to offset the
collective and union harm is for employees to be made aware of the LRB finding of
illegality and remedy. Such a response by the LRB may demonstrate to fearful
employees that the employer is not able to break the law with impunity. In the
absence of an LRB order allowing the union to meet with (or otherwise directly
communicate with) all employees in order to communicate the decision, or an order
that the employer post the decision or otherwise provide or circulate it to employees,
it is likely that most employees will have incomplete, inaccurate, or no knowledge of
the LRB decision. Unions have very limited access to workplaces and workers in the
organizing context. The collective and union benefit of the remedy will therefore
likely be diminished or lost without some accompanying communication order.
B. Remedies for Harm to Collective Employee and Union Interests
Remedies directed at harm to collective employee and union interests are varied
but may be organized into two categories. Communication and access orders
involve providing information to employees or allowing unions to have access to
workers. Remedial certifications and second votes take a different approach and use
the certification process itself.
52 Promises to Keep, ibid. at 1791.
53 Valdi, supra note 28.
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1. Communication and Access Orders
Communication and access orders allow the union to communicate with
employees through one or a series of union meetings, often during working hours or
with employees compensated by the employer. For that purpose, the orders require
the employer to provide the union with use of a bulletin board, post a statement or
LRB decision in the workplace, or mail union materials to all employees.54 Such a
remedy seeks to counteract the chilling effect employer ULPs may have on other
employees support for organizing, and sometimes to counter erroneous and
damaging information the employer has given about the union or unionization.
Meanwhile, access orders are intended to offset the very limited access unions
otherwise have to workers during organizing.55 Therefore, these remedies are directed
at repairing harm to collective employee and union interests, and they are potentially
effective components of broader remedial orders, particularly in combination with
remedies targeted at individual harm, as discussed below, or remedies such as
remedial certification and second votes.
2. Remedial Certification
The LRB has discretion to order certification or a new or second
representation election as a remedy for egregious employer ULPs that interfere with
the LRBs ability to discern employees true wishes regarding unionization.56
Remedial certification is an unusual remedy, awarded sparingly and generally only in
unusual circumstances. It was developed in response to the deficiencies of the
traditional cease and desist order in cases where such an order was incapable of
54 In unusual circumstances, a communication order may extend beyond the workplace and to a
broader audience than employees to rectify damage caused by the employer, such as to the unions
reputation. In one such case the BCLRB found the employer had published misinformation about the
union in newspaper advertisements, deliberately creating a distorted view of the union in the minds of
employees and the general public (Re White Spot Ltd., [1989] B.C.L.R.B.D. No. 7 (QL)). The BCLRB
ordered the employer to publish newspaper advertisements running on two consecutive weekdays, of
the same size and in the same papers as its own ads, admitting that the employer had been found by
the BCLRB to have knowingly misled its employees and the public, and correcting the
misinformation. The BCLRB noted that this broad publication was necessary to address the scope of
the harm caused by the employers actions, because [t]he harm done to [the union] went beyond the
employees who read the advertisements and, in fact, were injurious to [the union] in the eyes of the
public as well. Since the mis-statements went to the community at large, so should the remedy
(ibid.).
55 These meetings are generally of set length, without management present, and during paid
employee time. See e.g. Re Lester B. Pearson College of the Pacific and United World Colleges
(Canada), [2001] B.C.L.R.B.D. No. 347 (QL) [Pearson College].
56 Remedial certification is provided for by the B.C. Code (supra note 15, ss. 14(4)(f), (5)), as is the
authority to order a second representation vote (ibid., s. 133(1)(d)).
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repairing harm done or deterring wrongdoing.57 The remedy is meant to compensate
for illegal employer interference, granting employees the representation they would
likely have obtained in the absence of the employers misconduct, to preserve
employees freedom of association, and to deter illegal employer conduct.58
Remedial certification is described as removing the fruits of wrongdoing from the
employer, delivering to the union what it wants, and delivering to the employer
exactly what it hoped to avoid. The idea, and the source of its value as a deterrent, is
that those employers crossing the line into illegal behaviour risk ending up with a
union, while those who remain within the bounds of legal anti-union activities may
succeed at discouraging employees from unionizing.59 In its result, this remedy may
benefit the union, at least in the short term. However, what it offers individual and
collective employee interests, and the union in the longer term, is more ambiguous.
As significant as a remedial certification order is, on its own it only partly restores
union and collective interests, and it temporarily deprives employees of choice about
representation. It is this weakness that attracts popular criticism of the remedy from
employers, charging
is undemocratic and foists unwanted union
that
representation on workers.60
A second shortcoming is that, although remedial certification appears well
designed to repair harm to collective rights, this remedy may promise more than it can
deliver on its own. Alone, remedial certification simply inserts the union as the
workers bargaining representative, requiring that the employer recognize and
negotiate with it. The remedy does nothing to restore the damaged relationship
between the union and workers.
These weaknesses allow the remaining union support to be eroded and provides
no real counter to the effects of the unlawful tactics employers use to dissuade
workers from supporting the union. However, the effectiveness of the remedy may be
improved with the help of supplementary remedies. Particular access and
communication orders can allow the union to deliver its message and meet with
workers, giving them an opportunity to learn about and develop a relationship with
the union. In the absence of this communication, the union may face the test of
collective bargaining without the requisite employee support, compromising the
unions bargaining power and likely reducing its ability to successfully represent the
bargaining unit and to resist early decertification. Remedial certification does not, and
cannot, require the employer to reach a collective agreement with the union. The
it
57 Re Cardinal Transportation B.C. (1996), 34 C.L.R.B.R. (2d) 1 (BCLRB) [Cardinal]; Forano,
supra note 15 at 20.
58 Canada, Sims Task Force, Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa:
Ministry of Public Works and Government Services, 1995) at 64; Cardinal, ibid.; Forano, ibid.
59 See generally Weiler, Promises to Keep, supra note 1 at 1794-95.
60 However, workers are not deprived forever of deciding whether to be unionized. They can, of
course, later choose to free themselves from union certification through the decertification process.
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employer may continue to resist the union and lawfully refuse to come to agreement,
or it may engage in further ULPs by negotiating in bad faith.
713
3. Second Vote
The second vote remedy generally entails a finding by the LRB that an election
on unionization was so tainted by the employers wrongdoing that it cannot be used
to determine certification. The LRB orders that a new vote be held at some later date,
generally within a specified period after the ULP decision is issued.61 The remedys
primary rationale is that where the original vote has been significantly contaminated
by employer ULPs, a new representation election would better reflect employees true
wishes regarding union representation. A key feature of the second-vote remedy is
that it imposes less on individual employee choice than remedial certification.
A second vote in and of itself however does not erase employer intimidation,
threats, or promises from employees minds. From the collective employee
perspective, then, the second vote remedy provides little benefit as it fails to truly
permit workers genuine wishes to be expressed. Similarly, it provides little benefit to
the union, on which substantial additional costs are imposed. The union must
overcome the negative effects of the employers ULPs, as well as gain and maintain
sufficient support for unionization until the next vote, which may be weeks or months
after the initial election. During this entire time the union is able to show workers few
benefits, but plenty of turmoil.
As with remedial certification, some of these shortcomings could be ameliorated
with additional remedies, principally communication and access orders, as well as
some monetary compensation to the union in recognition of the wasted and additional
organizing costs it will suffer with a second election.62
61 See e.g. Re South Surrey Hotel Ltd., [1994] B.C.L.R.B.D. No. 405 (QL) (ordering that a second
vote be held within the ten days after the ULP decision was issued). In Pearson College the decision
was issued on 22 August 2001, with reasons issued on 13 September 2001 (supra note 55). The
BCLRB permitted the union two meetings with employees before the end of that month. It also
ordered that a new vote be held within ten days of the last meeting and that the list of eligible voters
be updated (ibid.). In Re Wal-Mart Canada, the BCLRB ordered a new vote to be held within 10 days
of the ULP decision and the voters list to be based on the ULP decision date ([1998] B.C.L.R.B.D.
No. 90 (QL)).
62 The second vote remedy is also criticized as a poor deterrent to employer ULPs, particularly
compared to remedial certification. In Ontario, during a period when legislation prohibited the Ontario
Labour Relations Board from ordering remedial certification, the United Steel Workers of America
criticized the lack of deterrent effect and effectiveness of the second vote remedy. It argued that a
second vote provides no disincentive for employer wrongdoing. It also argued that … under present
legislation, an employer can continue to repeatedly interfere with employee rights through successive
votes leading to employees becoming too afraid and frustrated to support the union (Return to
Fairness, supra note 1 at 16-17). It pointed to the infamous case Re Baron Metal Industries, in which,
after the initial vote was found to have been tainted by the employers egregious illegal behaviour
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4. Monetary Compensation to the Union under Make-Whole Orders
As described earlier, the two objectives of make-whole orders are to compensate
the wronged party and withhold from the wrongdoer the fruits of its violation.63 This
type of order developed out of recognition of the inadequacy of existing remedies.64
In particular, it was a response to the shortcomings of the purely prospective cease
and desist order, which allows the employer to retain the benefits of its illegal
behaviour.65
Nonetheless, LRBs have taken a restrictive approach to make-whole orders,
awarding them only in exceptional cases involving serious contraventions, where the
LRB is satisfied that other remedies are inadequate, no other practical alternative for
meaningful and effective relief is available,66 and any monetary relief will only
compensate the injured party and therefore is not punitive.67 Where applied, the
make-whole approach is used to justify a range of creative remedial orders and
combinations of remedies, including various forms of monetary compensation to
unions such as awards of legal costs or costs of organizing, directed at restoring
losses incurred by unions as a result of employer ULPs.
5. Legal Costs
Awards of legal costs are an example of monetary compensation awarded under
the make-whole approach.68 In the normal course of civil court proceedings, parties
request, and courts award, legal costs to the successful party. There is no such practice
in LRB proceedings and the legislation does not expressly provide for an award of
legal costs, although costs and expenses may be awarded under the LRBs general
remedial powers as a remedy for a monetary loss. Legal costs are restricted to cases
presenting exceptional and compelling circumstances,69 with the goal being to place
the successful complainant in a break-even finale rather than a loss.70 As such, a
(recruiting two gang members to threaten employees), one new vote and then a subsequent new vote
were ordered ([2001] OLRB Rep. 553), as an example of this phenomenon (ibid.).
63 See Part III, above. See also Kidd Brothers, supra note 44 at 320.
64 Clark, supra note 35 at 5; McNamara, supra note 35 at para. 6.
65 For discussion of this in the failure-to-bargain context, see Kidd Brothers, supra note 44 at 320.
66 Re Fletcher Challenge Canada Ltd., [1997] B.C.L.R.B.D. No. 255 at para. 38 (QL) [Fletcher].
67 Clark, supra note 35 at 5; McNamara, supra note 35 at para. 6.
68 Legal costs are not available in all jurisdictions. Though the Canada Industrial Relations Board
and BCLRB have awarded legal costs in unusual circumstances, the Ontario LRB has held that it has
no jurisdiction to award legal costs and would not, and should not, do so even if it did have the
jurisdiction (Re National Grocers Co. Ltd., [2003] OLRB Rep. 467 at paras. 18-20).
69 See Re Kelland (1993), 21 C.L.R.B.R. (2d) 254 (BCLRB) [Kelland] (providing a remedial
award); Re North American Construction Ltd. (2000), 61 C.L.R.B.R. (2d) 286 (BCLRB); Re Emral
Enterprises Ltd. (2001), 74 C.L.R.B.R. (2d) 213 at para. 66 (BCLRB), affd [2002] B.C.L.R.B.D. No.
5 (QL) [Emral].
70 The goal of an award of costs is described in Re Graham (2000), 55 C.L.R.B.R. (2d) 246 at para.
47 (BCLRB)) and McNamara (supra note 35). Subsequent panels have treated this statement as an
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reimbursement of costs by the LRB, in the rare event that it is ordered, is more
substantial than the usual award of costs in civil proceedings, which usually fall far
short of placing the party in a break-even position.71
Concerns over fairness and avoiding the appearance of punishment have led
LRBs to award legal costs very sparingly. Due to the statutory requirement that there
be a violation of legislation, a regulation, or a collective agreement before an award
of costs is available, one concern for LRBs is that costs are not available to all parties
for all matters.72 Only successful complainants are eligible to obtain costs and not, for
instance, respondents that are found not to have violated the legislation.73 Nor is this
remedy consistently available in labour legislation in Canada. LRBs are not
authorized to order legal costs for certain matters, such as strikes, picketing, and
lockouts, though costs are available for other matters such as ULPs.74 These
imbalances in opportunities to seek legal costs render LRBs reluctant to make such
awards.75 LRBs are also concerned that cost awards may be perceived as punitive,
and that the prospect of legal-cost awards will alter the informal character of LRB
proceedings or discourage nonlawyers from appearing before LRBs.76
However, given that the proportion of ULP complaints by unions vastly
outnumbers those by employers, that the great majority of these complaints are found
overriding direction in the setting of costs (Re McNamara (1990), 6 C.L.R.B.R. (2d) 290 at 293-94
(BCLRB)). See also Re Graham (2000), 55 C.L.R.B.R. (2d) 246 (BCLRB).
71 Civil courts routinely award costs to successful parties. However, in the absence of some form of
misconduct, these awards provide only partial or substantial indemnity for the true cost of litigation,
with ordinary costs generally equal to about half of the fees actually paid, and special costs about 80-
90 per cent of the fees paid (Mark M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, Ont.:
Canada Law Book, 2007), c. TR-13-15).
However, in practice, the level of indemnity under ordinary costs is only about 25-30 per cent of
actual costs (Hon. Justice M. Macaulay, Attorney Generals Rules Revision Committee Discussion
Paper on the Tariff of Costs (2003) 61 The Advocate 699).
Costs rules in several other Canadian jurisdictions are also intended to provide partial indemnity
to successful litigants. For example the intended level of indemnity in Alberta is approximately 30-50
per cent (Alberta Law Reform Institute, Alberta Rules of Court Project: Costs and Sanctions,
Consultation Memorandum No. 12.17 (February 2005) at 4, online: University of Alberta Faculty of
Law
(Ontario, Costs Subcommittee of the Civil Rules Committee, Costs Grid Consultation Paper (27
February 2004), online: Court of Appeal
for Ontario
(Manitoba, Law Reform Commission, Costs and Awards in Civil Litigation (Winnipeg: Office of the
Queens Printer, 2005) at 20, online: Manitoba Department of Justice
72 See e.g. B.C. Code, supra note 15, s. 133(1).
73 See e.g. Re R.C. Purdy Chocolates Ltd. (2001), 77 C.L.R.B.R. (2d) 1 at para. 63 (BCLRB).
74 See Re Roberta Scott and Ronald Scott (Target Resources) (1992), 16 C.L.R.B.R. (2d) 65 (B.C.
Industrial Relations Council).
75 See ibid.; Kelland, supra note 69.
76 Kelland, ibid.
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to have merit, and that unions spend significant resources on pursuing these
complaints, these questions affect unions much more than employers. This imbalance,
which has not been recognized by the LRBs, is particularly troubling in
circumstances where the employer deliberately or flagrantly violates the legislation.
For example, knowing that the remedies awarded for ULPs are likely minimal and
probably will not include legal costs, an employer could well decide to drain the
unions resources by engaging in illegal anti-union conduct and thus provoking the
union to file and pursue costly complaints, while itself investing little or nothing in its
own defence.
6. Costs of Organizing
Organizing expenses may also be awarded to the union in compensation for
employer violations that effectively waste the resources the union invested in its
unionizing attempt.77 Seldom ordered, LRBs generally require that there be no
potential for a relationship between the employer and union, such that the unions
investment in the organizing campaign has been rendered a complete loss, with no
prospect of reviving support, and that the only available remedy is monetary
compensation.78
Awards for costs of organizing primarily address losses to the union. They may
also benefit collective employee interestsif only in those unusual circumstances
where an order of costs is made in conjunction with remedial certification or another
voteby restoring some of the unions organizing resources.
C. Noncompensatory Remedies: Declarations and Cease and
Desist Orders
Declarations of violation of the legislation and cease and desist orders are
common elements of remedial awards and are described as the traditional remedy
for organizing ULPs.79 However, they are noncompensatory remedies. A declaration
is simply an express statement by the LRB that the conduct complained of violated
the statute, while a cease and desist order directs the violator to halt the conduct
complained of. Therefore, cease and desist orders are directed at ongoing activity or
conduct that is reasonably likely to continue.80 Failure to comply with such an order
may attract a penalty or a finding of contempt by the courts, or may be taken into
consideration in formulating the remedy for the subsequent ULP.81
77 Kidd Brothers, supra note 44.
78 Ibid.
79 Forano, supra note 15 at 20.
80 Fletcher, supra note 66 at para. 34.
81 For a discussion of enforcement through penalties and contempt, see supra note 46 and
accompanying text; infra note 125 and accompanying text.
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Where a declaration accompanies a more substantial remedy, it may be beneficial
to have such an explicit statement by the LRB that the conduct is unlawful. However,
where it stands as the only response to the ULP, the remedy provides little immediate
benefit to individual employees, collective interests, or the union. To have any effect
at all, employees must be aware of the declaration. Once they are made known,
declarations may have some prospective use, such that the parties know for the future
that the particular conduct is illegal, but they are of little or no immediate use.
A cease and desist order is somewhat more useful than a simple declaration
because it may make it easier for the complaining party to seek a further legal
response if the misconduct continues. Thus the order is only really relevant to
ongoing activity. However, where an employee has been illegally discharged or the
employer has engaged in unlawful speech, the harm has already been done and
prohibiting further illegal firings or threats does little or nothing to address that harm.
Like a declaration, a cease and desist order is of questionable value to workers
(individually and collectively) or the union.
Cease and desist orders are criticized as being purely prospective, allowing the
employer to harvest the fruits of its wrongdoing, and as doing nothing to restore the
harm already done to employees ability to make a free and voluntary decision.82
Further, they provide little deterrence from future misconduct since [a] party doesnt
have that much to lose from early and effective intimidation except a little bad
publicity.83
There may be an argument madethough surely it is a weak one in the
organizing contextthat employees and the union benefit from an unequivocal LRB
statement that the employers conduct is unlawful, which both declarations or cease
and desist orders provide. However, this benefit largely depends on most workers
being aware of the declaration or order, which is not likely to be the case unless the
LRB also makes a posting or communication order. Therefore,
these
noncompensatory remedies are highly ineffective on their own, and will likely be of
any consequence only where they are granted in conjunction with communication
orders.84
82 See Kidd Brothers, supra note 44; Forano, supra note 15 at 20.
83 Forano, ibid.
84 Nevertheless, LRBs defend the significance of these awards as remedies. See Re Tie
Communications Canada (1996), 27 C.L.L.C. 220-021 at paras. 31-33 (BCLRB). Responding to the
hypothetical argument that it should not proceed with a matter because the only remedies requested
were declarations and cease and desist orders, the BCLRB objected to this implicit denigration of
these orders, contending that a declaration is a significant matter in and of itself and a cease and
desist order is a serious admonition (ibid.). The BCLRB claimed it would consider the employers
failure to comply with the order when setting the remedy for any continuing violations, and stated
that, when used in this manner, declarations and cease and desist orders are not insignificant nor mere
boilerplate (ibid.). This explanation underscores the ineffectiveness of these remedies.
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D. Restorative Potential Revisited
This assessment of the restorative potential of available remedies suggests that
most remedies, when individually applied to termination or communication cases,
will allow harm to remain uncompensated. A fully compensatory response will often
require a combination of remedies, such as reinstatement, back pay, and
communication and access orders, to restore harm caused by illegal termination of an
employee.
It is also apparent that the majority of remedies are directed at harm to
individuals; fewer target harm to the union, and fewest of all address harm to
employees collective interests. There are also some forms of harm that the LRB
explicitly chooses to leave uncompensated, such as mental distress, loss of
opportunity for unionization and, in some jurisdictions, legal costs.85
V. Analysis of Remedial Awards
This study investigates the LRB response to employer ULPs during organizing. It
collects and analyzes information on each case in which the BCLRB found a
complaint of an employer ULP during organizing to be partly or wholly meritorious.
The dataset is limited to cases that resulted in a published decision during the period
from 1 January 1990 to 30 June 2007. Of these cases, those involving either illegal
termination or employer communication as the sole ULP were selected for analysis.86
These two categories of cases are best suited to assessing the degree to which the
LRBs remedial awards are fully compensatory. Illegal termination cases, as
discussed above, clearly involve harm to interests of the individual employees
affected and likely will be met with the individual-interest-oriented remedy of
reinstatement with or without back pay. Although LRBs frequently note the broader
chilling effect of such terminations on collective employee and union interests, it is
anticipated that remedial awards in these cases generally do not address such
interests. By contrast, remedies in employer-speech ULP cases will likely be directed
at harm to collective employee interests, though these remedies do not provide
compensation for harm to the interests of individual employees or the union. In short,
this analysis is directed at discerning what types of interests, if any, are systematically
overlooked in LRB remedial awards.
The first part of this analysis examines how frequentlyor infrequently
remedial awards in several categories of illegal termination and employer-speech
ULP cases address harm to different interests. Remedial awards are often composed
85 See e.g. Re Tillicum Haus Society, [1997] B.C.L.R.B.D. No. 424 (QL) (denying compensation for
mental distress on grounds of lack of jurisdiction, and finding the case not to be appropriate to the
award of legal costs). See also note 68 and accompanying text.
86 For a detailed description of the data collection, see supra note 13. The data set contains a total of
172 meritorious complaints of employer ULPs during organizing, including 19 meritorious employer-
speech cases and 49 meritorious unlawful-termination cases.
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of several elements. Each remedial award is examined first as a whole, and then each
element of the award is considered. The awards are assessed to determine which of
the three interests are addressed (individual employee, collective employee, and/or
union). Figure 3 and Table 3 in the Appendix set out the number and percentages of
all remedial awards, first for termination and then for speech ULPs, that either (1)
compensate individual employee interests only, (2) compensate collective employee
interests only, (3) compensate all three interests, (4) compensate only collective and
union interests, (5) compensate only individual and union interests, (6) or, provide no
compensatory remedy.87
The second part of this analysis examines the frequency of different remedial
elements awarded in termination cases and in employer-speech cases. The results are
set out in Figure 4 and Table 4 in the Appendix. These include the percentage and
number of all remedial awards for termination and employer-speech cases that
contain an order for reinstatement with or without back pay, a communication order,
an access order, monetary compensation to the union such as legal or organizing
costs, a remedial certification or second vote order, a declaration and/or cease and
desist order, or an order that the parties shall negotiate their own remedy. A particular
award may contain one or more of these elements.
A. Termination Cases
Most striking is the individual orientation of remedial awards for termination
ULPs. Though illegal termination is widely recognized as the most blatant and
chilling anti-union tactic, with potentially devastating effects on employees rights
and organizing efforts,88 remedial awards for these ULPs typically only order
reinstatement with or without back pay. These awards focus on repairing harm to
individual employee interests and virtually exclude consideration of collective
employee or union harm. It appears that, in all but extraordinary situations, neither
harm to collective employee interests nor to the union is compensated.
Seventy-one per cent of awards in these termination cases are directed solely at
harm to the terminated employees, consisting of reinstatement with or without back
pay. Remedies address collective employee or union interests in only 26 per cent of
cases, and mostly in the form of communication orders. In 2 per cent of cases no
compensatory remedy is ordered. Generally, these are situations where the employee
is found to have engaged in some wrongdoingthough not sufficient to merit
terminationor has taken employment elsewhere and does not wish to return to that
workplace (see Figure 3 and Table 3 in the Appendix).
87 The remedial potential of the award is defined in accordance with the assessment of available
remedies set out in Part IV, above.
88 See Valdi, supra note 28.
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The great majority of remedial awards in termination ULP cases in this study
address harm to individual employee interests by including reinstatement with or
without back pay (85.7 per cent). Also as anticipated, few remedial awards contain
elements directed at addressing harm to collective employee or union interests. Only
10.2 per cent of cases include a communication order; only 6.1 per cent include
access orders; only 2 per cent include monetary compensation to the union; and only
6.1 per cent provide for a new representation vote or remedial certification. Nearly
half (42 per cent) of the awards in termination cases include a noncompensatory
declaration or cease and desist order (see Figure 4 and Table 4 in the Appendix).
Reinstatement, with or without compensation in the form of back pay, addresses
only the loss suffered by the terminated worker, leaving harm to other workers and
the union wholly unaddressed, except to the limited extent that the LRBs decision
and order become known to other workers. Only in those rare circumstances where
both reinstatement and back pay are awarded well before the representation vote, and
all employees are aware of the ULP finding, will a simple individual remedy be a
sufficient response (unless no other employee is aware of the illegal firing).
Given that illegal discharges clearly outnumber any other form of employer ULP
during organizing,89 there is rarely any reparation of harm to collective or union
interests for employer ULPs committed during organizing. As a result, it is evident
that LRB remedial awards give insufficient regard to, and leave unremedied, harm to
collective employee and union interests in termination cases.
B. Speech Cases
This study suggests that LRB awards tend to involve more substantial and wide-
reaching remedies in employer-communications cases rather than in termination
cases. This is contrary to what we might expect, given that LRBs recognize illegal
terminations as the type of employer conduct that is most chilling to organizing
efforts.90 However, in speech cases, harm to individual employee interests is seldom
addressed, harm to union interests is routinely disregarded, and awards often consist
of simple declarations and cease and desist orders that provide no compensatory
element at all.
In vivid contrast with the termination cases in this study, no remedial awards for
employer-speech ULPs were directed solely at individual employee interests, even
though some cases involved questioning of individual employees (see Figure 3). In
addition, a great majority (79 per cent) of awards addressed harm to both collective
and union interests, and another 5 per cent addressed all three types of interests. Also
notable was the substantial proportion (16 per cent) of awards that were entirely
noncompensatory in nature. These awards are simply declarations or a direction by
89 For a discussion of the frequency of different categories of employer ULPs, see Part II.B, above.
90 See Part I.D, above.
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the LRB to the parties to negotiate their own remedy. Unfortunately, declarations and
cease and desist orders will likely be thoroughly ineffective at remedying collective
harm. Few if any employees will likely be aware of the order or what it means, or be
reassured or vindicated by such a remedy. Such an order may be a legal victory for
the union and, perhaps, a particular employee involvedbut no moreand is likely
to be minimally effective. Therefore, in over 15 per cent of unlawful-communication
cases, no effective remedy was granted.
In cases of speech ULPs, declarations and cease and desist orders were the most
common elements of remedial awards, appearing in 89.5 per cent of awards. At the
same time, individually oriented remedies were uncommon, with none awarded for
employer-speech violations. Nor was compensation awarded to the union in any of
these cases. Communication awards were made in only 15.8 per cent of cases, and
access orders were made in 47.4 per cent. Extraordinary remediesremedial
certification and second voteswere more common in the speech cases than in the
termination cases, with 36.8 per cent of illegal-speech cases resulting in awards that
included one of these remedies.
Figure 3: Percentage of Remedial Awards, by Type(s) of Harm Compensated,
Granted for Termination and Speech ULPs by the British Columbia
Labour Relations Board, 1990June 2007
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[Vol. 53
Figure 4: Percentage of Remedial Awards, by Element(s) of these Awards,
Granted for Termination and Speech ULPs by the British Columbia
Labour Relations Board, 1990June 2007
C. Overall Trends
Examination and comparison of remedies in termination and speech cases reveals
a number of clear trends. The overarching finding is that remedial awards generally
do not address all aspects of harm likely caused by the employers organizing ULP.
Although speech and termination cases are treated differently, both types of organizing
ULPs tend to be met with standard remedial responses that systematically fail to fully
compensate all dimensions of harm potentially caused by the employers unlawful
activity.
In sum, this analysis suggests that victims of termination and speech ULPs during
organizing commonly suffer unremedied harm while wrongdoers are not held
responsible for the full extent of the harm they have caused.
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VI. The Principle of Voluntarism
A. The Traditional Model of Voluntarism
Voluntarism is regarded as a central tradition of our labour relations system.91 The
tradition has its roots in British labour relations and, in differing forms, has been
adopted by North American LRBs.92 It envisions that private sanctions, such as work
stoppages, rather than state intervention, establish the prerequisites for collective
bargainingorganization, mutual recognition, and enforcement machinery93such
that the actors will voluntarily agree to the terms and conditions governing their
relations.94 Consequently, voluntarism regards the proper role of government in
labour relations as inactive and neutral.95 As Kevin Hawkins describes, this
noninterventionist role for the state is
based on the assumption that industrial peace was more likely to be achieved if
the parties concerned were permitted the maximum amount of freedom to settle
their differences on their own terms. It was generally believed that employers
and trade unionists were much more likely to obey rules which they themselves
had evolved rather than anything imposed on them by a third party.96
B. Voluntarism in Canadian Labour Relations
It is clear that labour relations in Canada depart markedly from this traditional
model of voluntarism, and have done so at least since modern labour legislation was
enacted in the late 1930s and 1940s.97 As Geoffrey England points out, labour
91 Labour relations and labour law scholars note that the term voluntarism is both ubiquitous and
elusive. As Mark Thompson notes, Voluntarism is a concept frequently used, but seldom, if ever,
defined (The Future of Voluntarism in Public Sector Labour Relations in England, Essays in
Labour Relations Law, supra note 1, 103 at 104). Geoffrey England writes, I confess to never having
been certain what the term voluntarism is supposed to mean (Trade Union Admission Rules: A
Legal View in England, Essays in Labour Relations Law, ibid., 149 at 149 [England, Rules]).
92 England, Rules, ibid.; Richard Hyman, Understanding European Trade Unionism (London:
Sage, 2001) at 68-69; Richard Hyman, Is Industrial Relations Theory Always Ethnocentric? in
Bruce E. Kaufman, ed., Theoretical Perspective on Work and the Employment Relationship
(Champaign, Ill.: Industrial Relations Research Association, 2004) 276.
93 See Allan Flanders, Management and Unions: The Theory and Reform of Industrial Relations
(London: Faber & Faber, 1975) at 95-99, 173-78.
94 See Eric Tucker, The Persistence of Market Regulation of Occupational Health and Safety: The
Stillbirth of Voluntarism in England, Essays in Labour Relations Law, supra note 1, 219 at 220.
95 Ibid. at 220. See also Thompson, supra note 91 at 104. Critics, including Tucker, contend that the
state does not act neutrally.
96 Kevin Hawkins, The Decline of Voluntarism (1971) 2 Industrial Relations Journal 24 at 24.
97 See G. England, Epilogue: Some Observations on Voluntarism in England, Essays in Labour
Relations Law, supra note 1, 263 at 263 [England, Voluntarism] (arguing that all labour movements
depart from the traditional voluntary model); Thompson, supra note 91 at 104.
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724
relations in Canada are highly regulated and involve significant state intervention and
oversight at all stages:
[Vol. 53
Today, labour-management conflict in Canada is judicialized to an
extraordinarily high degree. Trade union organization is secured by a plethora
of statutory unfair labour practices administered by labour relations boards;
collective agreements are enforced by legislation and administered by
arbitrators or, to a lesser degree, by labour relations boards and courts; and the
weapons of strike and lockout are closely controlled by statutory provisions
governing timeliness, individual rights, and, to a growing degree, even the
conduct of the battle itself, again administered by labour relations boards or
by the courts. Add to the foregoing the statutory duty to bargain in good faith,
which monitors ever more closely the substantive quality of negotiations, and
the legislative mandate given to labour relations boards to regulate collective
bargaining structure, and the resulting Canadian picture looks nothing like
[traditional voluntarism].98
Yet, as England also remarks, it is apparent that the actors in our labour relations
system perceive the system as voluntary, and value this quality. England concludes
that when labour relations actors speak of a voluntaristic system in Canada, they
are referring to a procedurally oriented understanding of voluntarism rather than the
traditional model.99 According to this understanding,
the proper role for the law is to secure a procedural framework in which the
competition can take place, but not to regulate the substantive outcomes, nor
impair the internal autonomy of the competing groups. Put simply, the law is
supposed to hold the ring and leave the groups to fight it out.100
This version of voluntarism does not preclude all legal or state intrusion. While it
rejects substantive intervention, it accepts procedural legal intervention in labour
relations.101 It envisions a system where actors freely comply with the rules and
conventions of the system. Any breaches that occur would generally be inadvertent
the product of employer ignorance of labour law rather than a calculated decision to
violate the law.102 As a result, parties would co-operate to restore harm caused by
violations without requiring government intervention, such as coercive or punitive
mechanisms.
H.D. Woods, in his excellent treatment of the history of Canadian labour law and policy,
maintains that even the earliest Canadian labour legislation contained elements of compulsion, which
were certainly a feature of the Industrial Disputes Investigation Act, 1907 (R.S.C. 1927, c. 112 [IDIA])
(Labour Policy in Canada, 2d ed. (Toronto: Macmillan, 1973) at 56-58).
98 See England, Voluntarism, ibid. at 263 [footnotes omitted].
99 Ibid. at 264.
100 Ibid.
101 Ibid. Please note that in the remainder of this article the term voluntarism refers to this
procedurally oriented understanding of voluntarism.
102 See Woods, supra note 97 at 152.
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Though England criticizes this proceduralsubstantive distinction as flawed and
misleading,103 he notes that this perception of the labour relations system must be
taken seriously because it has become part of the common ideology shared by the
actors in our system, and it is these shared understandings that bring stability and
harmony to labour relations.104
725
C. Application of the Procedural Understanding of Voluntarism
This disjunction between the relatively interventionist reality of our labour
relations system and the widely held understanding that it is, at least apart from
procedure, a voluntary system, is perhaps most evident in LRBs treatment of
violations of labour legislation. LRBs prefer parties to resolve disputes themselves,
without LRB intervention, even where the violation giving rise to the dispute was
calculated and intentional, not simply inadvertent or stemming from ignorance.105
LRBs contend that such resolutions are more conducive to successful collective-
bargaining relationships in the future than outcomes that are imposed on parties.106
Similarly, LRBs are reluctant to foster an impression of winners and losers in
labour proceedings, decisions, or remedial awards;107 they try to avoid the stigma of
a public defeat at law.108 Such outcomes are regarded as undesirable for the parties
long-term relationship.109 As described by H.D. Woods, [i]f the parties are to achieve
a relationship which permits a constructive, administrative approach to the working
arrangements, there is a need to reduce the attitudes of triumph and defeat to the
minimum.110 A further reason why LRBs endorse this voluntary approach is their
belief in not being capable of fully enforcing labour legislation.111 LRBs regard their
remedial authority as leaving them unable to police labour relations, and therefore
beholden to parties willingness to comply with the legislation.112
103 England, Voluntarism, supra note 97 at 264-68.
104 Ibid. at 264. Regarding the central role of common ideologies and shared understandings in
labour relations systems, see John T. Dunlop, Industrial Relations Systems, rev. ed. (Boston: Harvard
Business School Press, 1993).
105 See Woods, supra note 97 at 152.
106 See e.g. Re British Columbia Automobile Association (1999), 60 C.L.R.B.R. (2d) 267 at paras.
116-17 (BCLRB) [BCAA].
107 See e.g. Kelland, supra note 69; Re Pacific Press, [1996] B.C.L.R.B.D. No. 292 at para. 47 (QL)
(bargaining structure); Emral, supra note 69; BCAA, ibid.
108 Woods, supra note 97 at 152.
109 BCAA, supra note 106 at para. 116.
110 Supra note 97 at 152.
111 As discussed earlier in this article, labour legislation does not provide for punitive or coercive
enforcement mechanisms, though LRB decisions are enforceable as orders of the superior court and
the legislation often provides for penalties for breaching LRB orders. For a discussion of these LRB
powers, see Part III, above.
112 Re Radio Shack, [1980] 1 Can. LRBR 99 at 129 (OLRB) [Radio Shack]. This decision has been
cited with approval and adopted by numerous Canadian LRBs including the BCLRB. See e.g. Re
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Furthermore, LRBs maintain that, even if they could police labour relations, they
should not.113 LRBs distinguish between their statutory and practical jurisdiction,
and caution that, should they exceed their practical authority by relying on their fuller
statutory authority, the efficacy of remedial orders may be weakened because these
orders depend on voluntary compliance.114 Due to this perceived dependence on
parties goodwill, LRBs insist that their decisions cannot get too far ahead of the
expectations of the parties if they are to attract as much self-compliance as
possible.115 LRBs understand this limitation as requiring them to apply conservative
remedies for wrongdoing to ensure that employers will continue to co-operate with
the administration of the legislation. As a result, while they may recognize that the
substantive rights they administer are important, LRBs balance enforcing these rights
with what they believe will be an outcome that is acceptable to the offending party.116
D. Shortcomings of this Approach
Unfortunately, as explained below, this approach to voluntarism is unrealistic and
based on understandings of ULPs that are contrary to the evidence. It understates the
need for enforcement and adjudication. While voluntarism may provide a good
rationale for avoiding punitive sanctions in labour law, it does not require that LRBs
avoid fully compensatory remedies. Voluntarism also fails to reflect parties interests,
and most of all is poorly suited to the organizing context.
1. Contrary to Evidence and Experience
First, to assume that most ULPs stem from inadvertence or ignorance, rather than
intentional wrongdoing, is contrary to the views of numerous experts and to the
evidence.117 In fact, ULPs are common.118 Many are blatant and intentional; others
Kamloops News, [1981] B.C.L.R.B.D. No. 36 (QL); Re White Spot Ltd., [1989] B.C.L.R.B.D. No. 7
(QL).
113 Ibid.
114 See e.g. Re Academy of Medicine, Toronto Call Answering Service, [1978] 1 Can. LRBR 183 at
193-94 (OLRB); Re Hunt Manufacturing Ltd., [1993] B.C.L.R.B.D. No. 291 (QL).
115 Radio Shack, supra note 112 at 129-30. See also Antoine, supra note 42 at 1057-58.
116 See Radio Shack, ibid.
117 Substantial empirical research into employer ULPs during organizing exists, demonstrating that
such ULPs are common and intentional. Leading examples of this research include a survey of eight
Canadian jurisdictions that found 80 per cent of managers surveyed engaging in overt union-
avoidance efforts, with 12 per cent of these managers freely acknowledging that they had committed
what they believed to be ULPs (Bentham, supra note 12 at 173). These results are consistent with an
earlier study determining that employers committed ULPs in at least 11.6 per cent of union-organizing
cases (Anne Forrest, Effect of Unfair Labour Practice Complaints on Certification and Collective
Bargaining in Michel Grant, ed., Industrial Relations Issues for the 1990s: Proceedings of the 26th
Conference of the Canadian Industrial Relations Association, 1989 (Quebec City: Canadian Industrial
Relations Association, 1989) 423 at 424.
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involve employers knowingly engaging in borderline conduct that is found to have
stepped over the line. In such cases, the voluntary system has already broken down.
One party has rejected the system by deciding to disregard the law. It makes little
sense to then order a remedy that fails to seriously sanction the wrongdoer merely in
the hopes that this will ensure future compliance and co-operation from the employer.
Consequently, LRBs are building their approach to ULPs on a false understanding of
the nature of and motivation for many of these violations.
727
2. Adjudication and Enforcement
The approach of LRBs to voluntarism, including their perception that they have
very limited practical authority, also understates the necessity for LRBs to take a
direct role in some cases by adjudicating and enforcing statutory rights. This
perspective leads LRBs to promote settlement and to award limited remedies in those
cases that are adjudicated.
Although a substantial proportion of disputes are resolved by the parties, not all
complainants settle, and settlements should not be encouraged at the cost of important
rights.119 As Woods cautions, LRBs must avoid sacrificing rights in the interest of
In the United States, there is also evidence of wide-spread and increasing employer-organized
ULPs, especially illegal terminations. Studies from the early 1990s estimated that one-tenth to one
sixty-fourth of pro-union workers in representation-election cases were subject to discriminatory
firing. See Weiler, Promises to Keep, supra note 1 at 1802; Robert J. Lalonde & Bernard D.
Meltzer, Hard Times for Unions: Another Look at the Significance of Employer Illegalities (1991)
58 U. Chicago L. Rev. 953; Paul C. Weiler, Hard Times for Unions: Challenging Times for Scholars
(1991) 58 U. Chicago L. Rev. 1015 [Weiler, Hard Times]). A recent study employing the
methodology used by Lalonde and Meltzer in 1991 found a significant increase in illegal terminations
of pro-union workers post-2000, compared to the late 1990s. The authors estimate that almost one in
five active union supporters will be discriminatorily fired during union organizing (John Schmitt &
Ben Zipperer, Dropping the Ax: Illegal Firings During Union Election Campaigns (Washington, D.C.:
Center for Economic and Policy Research, 2007) at 1, online: Center for Economic and Policy
Research
available for Canada. See also Daniel H. Pollitt, NLRB Re-Run Elections: A Study (1963) 41
N.C.L. Rev. 209 at 222. Pollitt conducts an examination of ULP complaints in second-representation-
vote cases and concludes that this misconduct is a deliberate choice and that the most common
[ULPs] cannot be inadvertent or unintentional (ibid.). For references to empirical research on the
effectiveness of employer ULPs during organizing, see supra note 12.
118 For Canada, see e.g. Bentham, supra note 12; Forrest, ibid. at 430. For the United States, see e.g.
Lalonde & Meltzer, ibid.; Schmidt & Zipperer, ibid. See generally Weiler, Promises to Keep, supra
note 1; Weiler, Hard Times, ibid.
119 Nevertheless, a substantial proportion of disputes are resolved by parties. For instance, for the
200506 fiscal year, the BCLRB reported that approximately 60 per cent of ULP and B.C. Code Part
V (industrial dispute) complaints referred to the BCLRBs special investigating officers were settled
(2006 Annual Report, supra note 11 at 3).
As Harry Arthurs notes in respect of employment standards, Public authorities responsible for
designing and implementing labour standards should neither rely on legislation when alternative
strategies are likely to be more effective, nor use other strategies when legislation is needed (Federal
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settlement, and legal rights should not be conciliated away.120 Even relatively
trivial violations deserve due consideration from LRBs. As England points out, the
standard of justice should not depend on the importance of the harm done:
Once certain conduct has been judged to be unfair, then that constitutes an
absolute … turning the blind eye to acts of unfairness with minor consequences
is no way to promote voluntary reform in the more important cases.121
[Vol. 53
Those matters that parties do not settle require adjudication and, possibly, LRB-
ordered remedies. Adjudication may not be the preferred means of resolving disputes,
and only a minority of ULP complaints can actually be resolved in this way, but an
important segment of cases nonetheless reach a point where it is needed.122 These
cases may reflect continued resistance by the respondent and the need for external
intervention to effectively protect parties rights. Moreover, these are cases where the
employerunion relationship is likely already poor. LRB intervention may be
necessary to establish a functioning relationship between the parties and may be the
only prospect for a constructive long-term bargaining relationship.
Furthermore, LRBs interpret the need for voluntary participation in the labour
relations system to mean that the remedial response to violations cannot be so severe
that the wrongdoer will reject the system and its regulation. This is a legitimate
justification for avoiding punitive remedies or penalties in labour relations,123 but it
presents a more difficult problem for awarding even remedial or restorative remedies
where there is an unwilling employer.
Imposing a compensatory remedy on an employer may be contrary to the ideal
that parties willingly agree to resolve disputes. To capitulate to the wrongdoer by
reducing the remedy leaves the other party with unremedied harm, and gives
Labour Standards Review Commission, Fairness at work: Federal Labour Standards for the 21st
Century by Harry W. Arthurs (Ottawa: Human Resources and Skills Development Canada, 2006) at
12, online: Human Resources and Skills Development Canada
Compliance may be the single most important issue confronting this review [of Federal
labour standards]. To put the matter succinctly, if employers do not comply with Part
III, if workers do not receive the protections it promises, if government is not prepared
to ensure that it is having the intended results, there is not much point in having labour
standards legislation at all (ibid. at 190).
120 Supra note 97 at 152, 358. Woods characterized ULP protections as the first line of defence of
the right of employees to join the union of their choice (ibid. at 358), and, in assessing the IDIA of
1907 (supra note 97), contended that [a] conciliation board is of no use in preventing the denial of
basic rights of freedom of speech and the right to unionize. These are legal rights that should not be
infringed upon by compromise solutions (Woods, ibid. at 75-76).
121 Englands comments were in relation to violations of rights under collective agreements, but are
equally applicable to ULPs (Rules, supra note 91 at 151).
122 BCAA, supra note 106 at para. 116.
123 LRBs mandate to provide restorative, compensatory remedies, and their lack of jurisdiction to
award punitive remedies, are addressed in Part III, above.
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preferential treatment to the wrongdoer at the expense of the innocent party. The
lopsided concern of LRBs for employer acceptance demonstrates that LRBs fear of
rejection of the system by employers outweighs their concern for fairness or their
concern that unions and employees may abandon the system. When an LRB makes
such a choice, it is choosing to purchase employer compliance while simultaneously
choosing to devalue the interests and rights of unions and employees.
Adjudication and enforcement is sometimes necessary. LRBs stated concern
about their inability to enforce legislation demonstrates excessive concern for
voluntary co-operation and also understates the actual enforceability of LRB orders.
Though it is true that an LRB often cannot enforce its own orders, various means
nonetheless exist to enforce these orders, such as civil or criminal contempt findings
issued by courts and monetary penalties for non-compliance.124
3. Parties Interests
A key requirement for a successful voluntary labour relations system is for parties
to view compliance with the system as in their own best interests.125 Where parties
conclude otherwise, they may decline or refuse to comply, disregarding the rules and
any attempted regulation. Even labour relations systems with substantial state
intervention as in Canada depend to some extent on willing compliance and co-
operation to function properly.126
While the notion of voluntarism may at first appear to treat labour and
management impartially, focusing on encouraging parties to come to voluntary
settlements of disputes, this does not reflect the reality. LRBs awarding remedies
124 LRB decisions can be filed in superior court and are then enforceable in the same manner as any
other court decisionthrough civil and criminal contempt proceedings. In some jurisdictions the LRB
may exercise discretion in determining whether to file in court. See e.g. Alberta Code, supra note 46,
s. 18(6); Quebec Labour Code, R.S.Q. c. C-27, s. 129; CLC, supra note 46, ss. 23-23.1. In other
provinces the LRB must file the decision on request or a party may file it after a specified period of
non-compliance with the order. See e.g. B.C. Code, supra note 15, s. 135; Manitoba Act, supra note
37, s. 143(11); Ontario Act, supra note 10, ss. 96(6), 108; Labour Act, R.S.P.E.I. 1988, c. L-1, s. 4(4);
Labour Relations Act, R.S.N.L. 1990, c. L-1, s. 21. Nova Scotia provides explicit entitlement to court
enforcement of monetary awards by the LRB (Trade Union Act, R.S.N.S. 1989, c. 475, s. 77).
penalty. For a discussion of the legislation that provides for such penalties, see supra note 46.
In several jurisdictions, failure to comply with an LRB order is an offence attracting monetary
125 See Woods, supra note 97 at 47, 58-59. Note that Woods says that early provincial legislation
setting up systems of conciliation boards, such as the Ontario Trades Arbitration Act 1873 (S.O. 1873,
c. 26), failed because they did not appeal to parties self-interest in making use of the conciliation
machinery (Woods, ibid. at 58-59).
126 This arises, in part, because the system lacks substantial enforcement or punishment
mechanisms. As discussed above, though LRBs do not have jurisdiction to enforce their own orders,
they can be enforced through the courts, and non-compliance can attract penalties and offence
findings, though these mechanisms are seldom used. See supra notes 46, 125; text accompanying
notes 46-48.
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subject to the principle of voluntarism do not treat labour and management equally. In
practice, LRBs show far greater concern that the handling of the complaint and any
remedial order is acceptable to the employer than that the union or employees find it
acceptable or sufficient. There are practical reasons for this.
First, there is a crucial difference in the role of the labour relations system for
employers compared to labour. Labour law is the key source of power and rights for
employees and unions, who have few alternatives for protecting their interests.127
Consequently, employees and unions are virtually obligated to participate in the
system, however poorly it may enforce their rights or however inadequate the
remedies may be. It will likely be better than the alternatives. In contrast, employers
generally do not regard labour regulation during organizing (or at practically any
time) as a benefit, since it primarily curbs employers otherwise unfettered authority
in the workplace. As one pair of researchers notes, employers generally have
difficulty identifying any benefits from unionization.128 Therefore, while labour has a
fundamental interest in participating in the labour relations system, management often
does not. This reality makes it difficult for LRBs to seek voluntary compliance from
both labour and management while at the same time enforcing the law and fully
compensating violations.
Secondly, this conflict of interest among LRBs is particularly acute for disputes
arising during union organizing. In such cases, unions and employees are most
commonly the injured parties seeking remedies, and employers are usually the
wrongdoers that may object to restrictions on their conduct during organizing and
resent any remedies ordered.129
4.
Inappropriate for Organizing Disputes
Voluntarism is particularly ill-suited to regulating the union-organizing period
because no continuing relationship has been established between the union and the
employer. Indeed, the very question to be decided is whether a unionmanagement
relationship will be established at all. It is not until certification is issued, recognizing
the union as the sole bargaining agent for a group of workers, that an ongoing
relationship is formed. Furthermore, those employers seeking to avoid unionization
hope certification will fail so they will not have any continuing association with the
union. In these circumstances, the short-term employer goal of avoiding unionization
may overshadow consideration of the long-term benefits of cooperation, leaving
127 For discussion of alternative sources of legal- and industrial-relations power and protection for
labour, see Alan Hyde, New Institutions for Worker Representation in the United States: Theoretical
Issues (200506) 50 N.Y.L. Sch. L. Rev. 385.
128 Brian E. Becker & Richard U. Miller, Patterns and Determinants of Union Growth in the
Hospital Industry (1981) 2 Journal of Labor Research 309 at 311.
129 See Part II.A, above.
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voluntarism as a particularly fragile structure for regulating employer ULPs
committed during organizing.
731
5. Conclusion
A long-standing part of our labour relations system is the tradition of voluntarism.
LRBs subscribe to this principle, adopting its underlying rationalethat resolutions
voluntarily reached by the parties themselves foster constructive, stable, and
harmonious labour relations that are in the best interests of all.
However, as explained above, while this principle may be appropriate for
resolving disputes between parties that are already in a bargaining relationship, it is
not well suited to disputes that arise during organizing. Within the period of
organizing, only the possibility of a relationship between the parties being established
is at stake, and many employers are very interested in preventing this possibility.
LRBs currently misinterpret voluntarism and misapply it to the organizing
context. By observing the requirements of voluntarism in dealing with employer
ULPs during union organizing, LRBs limit remedies to what employers will find
acceptable as a remedy rather than simply being guided by what will restore the harm
done. As a result, LRBs are jeopardizing, rather than fostering, constructive labour
relations by encouraging (or failing to discourage) employer violations of the freedom
to unionize, failing to enforce legislative rights, and providing inadequate
compensation for breaches.
VII. Consequences of Deficient Remedial Responses
This part explores the unintended consequences the LRBs failure to consistently
provide full compensation for harm caused by employer ULPs during organizing.
First, it examines the incentives and disincentives for industrial-relations actors
created by this practice. Next, it considers whether this practice fosters new norms for
employer behaviour by encouraging the belief that ULPs are not inherently wrongful
acts but simply statutorily created wrongs.130
A. Perverse Incentives
A rational-choice approach to analyzing actors labour relations actions holds that
employers are motivated to engage in ULPs not necessarily because of pure anti-
union feelings, but out of rational cost considerations. An employer will be expected
to engage in ULPs where it anticipates that the benefits of doing so outweigh the
130 Legal wrongs fall into two broad categories. Mala in se are acts, such as murder, that are
considered inherently wrong and illegal in their very nature. The second category contains acts that
are mala prohibita, or wrongs created by statute rather than inherent wrongs. Marijuana use is often
offered as an example of an act that is a malum prohibitum.
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costs it expects to incur. Meanwhile, unions and employees will tend to file and
pursue ULP complaints where the expected benefits sufficiently offset the costs
expected to be incurred by doing soincluding both the costs of the harm suffered
and litigation costs in this calculation.131 These cost-and-benefit calculations are
subject to actors perceptions of the likelihood that the following will occur: unlawful
action will be detected, the union or employee will file and pursue a complaint, the
LRB will decide a violation has occurred, it will order a fully compensatory remedy,
and, finally, its remedial order will be enforced.132
Consistently failing to award fully compensatory remedies for ULPs encourages
employer law-breaking by fostering the expectation that employers will not likely be
required to answer fully for their wrongdoing with a fully compensatory remedy.
These expectations shape actors costbenefit assessments and encourage law-
breaking by reducing the expected cost of violations for employers. This discounting
of the price for ULPs operates as an incentive to misconduct for a rational employer
by making misconduct more affordable than if subject to a truly compensatory
remedy. Subsidizing rogue employers in this manner also tempts otherwise law-
abiding employers to engage in wrongdoing, as they see these other employers
gaining an unfair advantage by their wrongdoing.133
131 Several writers adopt a rational choice perspective of ULPs. See e.g. B.R. Skelton, Economic
Analysis of the Costs and Benefits of Employer Unfair Labor Practices (198081) 59 N.C.L. Rev.
167; Robert J. Flanagan, NLRA Litigation and Union Representation (1986) 38 Stan. L. Rev. 957
[Flanagan, NLRA]; John J. Lawler, Unionization and Deunionization: Strategy, Tactics, and
Outcomes (Columbia, S.C.: University of South Carolina Press, 1990); Cynthia L. Estlund,
Economic Rationality and Union Avoidance: Misunderstanding the National Labor Relations Act
(199293) 71 Tex. L. Rev. 921 at 927; Morris M. Kleiner, What Will It Take? Establishing the
Economic Cost to Management of Noncompliance with the NLRA in Sheldon Friedman et al., eds.,
Restoring the Promise of American Labor Law (Ithaca, N.Y.: ILR Press, 1994) 137; Sara Slinn, An
Analysis of the Effects on Parties Unionization Decisions of the Choice of Union Representation
Procedure: The Strategic Dynamic Certification Model (2005) 43 Osgoode Hall L.J. 407.
Though there are distinct differences between Canada and the United States in prohibitions,
institutional procedures, and remedies relating to ULPs, scholars often find it valuable to compare the
labour relations experiences in these countries. See Paul C. Weiler, Milestone or Tombstone: The
Wagner Act at Fifty (1986) 23 Harv. J. on Legis. 1 at 4. For a concise description of these differences
relating to ULPs, see Joseph B. Rose & Gary N. Chaison, Immediacy and Saliency in Remedying
Employer Opposition to Union Organizing Campaigns (1997) 48 Lab. L.J. 662.
Also note that, in the context of federal employment standards, Arthurs identified that one of the
factors causing non-compliance with statutory requirements was … simple greed: a few employers
evidently feel that any business strategyincluding one that involves violating the law and exploiting
workersis legitimate so long as it leads to higher profits (Arthurs Report, supra note 119 at 195).
132 Similarly, sources of non-compliance with employment standards include employers
perceptions that they are unlikely to get caught, and that no serious consequences will result if
violations are detected (Arthurs Report, ibid.).
133 As Arthurs cautioned regarding compliance with Federal labour standards, If a small minority
of firms secures a significant competitive advantage by operating with substandard labour conditions,
it may ultimately drive the majority of law-abiding firms to follow suit (ibid. at 191).
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At the same time, unions and employees are discouraged from making or
pursuing complaints. The expectation created in these actors minds is that, aside
from the costs and harm already suffered from the ULP itself, they will incur
additional costs in litigating the matter. Meanwhile, unions and employees do not
expect to receive full compensation for the effects of the ULP, let alone the costs of
the complaint. As Robert Flanagan argues, the victim-enforcement scheme of labour
relations, locating the responsibility and cost of filing and pursuing complaints on the
victim, further reduces the likelihood that a wrongdoing employer will be called to
account for breaking the law,134 further reducing employers expected risk of being
found in breach and thus the expected cost of wrongdoing.135
B.R. Skelton contends that labour laws exclusive reliance on compensatory
remedies is based on the assumption that all wrongdoing will be reported and
prosecuted. He offers a vivid analogy illustrating how less-than-certain detection,
complaints, and convictions create incentives for law-breaking:
Suppose the only remedy the courts can legally impose for bank robbery is to
require the thief to repay the bank the money he has stolen. Suppose further that
there is some fixed probability, say fifty percent, that the thief will be
apprehended, convicted, or forced to repay. The likelihood, therefore, that the
robber eventually will have to reimburse the bank is a multiplicative function of
apprehension, conviction, and reimbursement, or .5x.5x.5 = .125. This means
that there is one chance in eight that the robber will have to return the money to
the bank. Under such conditions bank robbery could very well prove to be a
worthwhile endeavour.136
The analysis in Part VII demonstrates that wrongdoing employers that are caught
and found to have engaged in ULPs are only sometimes (and this study suggests it is
less than half of the time) required to repay the full costs of their crime.
Consequently, a costbenefit calculation may well produce an outcome with better
odds in favour of rogue employers than the one in eight that Skelton suggests would
be so compelling to prospective bank robbers. Clearly, unlawful union resistance may
well be worthwhile to an employer who values remaining union-free.137
134 Flanagan, NLRA, supra note 131 at 977.
135 Similarly, in the context of employment-standards violations, Arthurs notes that … difficulties
[in pursuing complaints] may not only dissuade complainants from coming forward, but may also
tempt employers to ignore the law as they take note of the long odds against being caught (Arthurs
Report, supra note 119 at 192).
136 Skelton, supra note 131 at 171.
137 See Supra note 117. Bentham discusses survey evidence that union-avoidance efforts are wide-
spread among Canadian employers and that a substantial proportion of managers surveyed admitted to
engaging in anti-union conduct they believed to be ULPs (supra note 12 at 173).
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B. Violations as the New Norm
It is not just exceptional ULPs that are important and deserve compensation, but
run-of-the-mill, routine violations too.138 Indeed it may be even more important for
the legitimacy and functioning of the labour relations system that these unexceptional
ULPs be fully compensated. Failure to do so helps create new managerial and
workplace norms of disregard for the legal limits on employer behaviour.
If the labour relations system creates incentives for employers to unlawfully resist
unions, as described above, more employers may succumb to the temptation to break
the law; the norm may become illegal resistance to unionization. The labour relations
system thus undermines itself by weakening social disapproval for wrongdoing. In
other words the LRBs application of remedies promotes disregard for the statutory
rights and protections of employees. The overall effect is to consistently favour
employers at the expense of unions and employees, reducing remedies to little more
than licence fees for wrongdoing.139
VIII. Conclusions and Recommendations
This article has investigated the appropriate remedial response to employer ULPs
committed during union organizing. LRB remedies are frequently criticized as
inadequate, motivating calls for change by introducing punitive remedies or revising
statutory procedures.140 This article considers an alternative approach to the problem.
It proposes that LRBs fulfill their remedial mandate by awarding remedies that fully
compensate the harm caused to individual employees, collective employee interests,
and the union by employer ULPs committed during union organizing. This proposal
requires no change to LRBs remedial powers, and it reduces incentives for
employers to violate labour legislation. Instead, it fosters collective bargaining
relationships. Should LRBs adopt this approach, it may have the additional beneficial
effect of deterring employer ULPs, given the knowledge that they will likely be
required to compensate for the full harm caused by their wrongdoing. As such, a
deterrent effect flows from the compensatory nature of awards in particular cases.
This is a nonpunitive form of deterrence.141
Though they are authorized to provide fully compensatory remedies for
violations of the legislation such as ULPs, LRBs have been unwilling to issue
remedial awards addressing all types of harm caused by breaches. The empirical
analysis of termination and employer-speech ULP cases decided over a seventeen-
year period by the BCLRB substantiates this claim. The analysis shows that remedies
138 See England, Rules, supra note 91 at 151.
139 See Convergys, supra note 35 at para. 40; Delta Optimist, supra note 40.
140 See Introduction, Section B, above.
141 As noted in Part III, above, LRBs are entitled to design remedies to deter further violations, and
such deterrent effect is not considered punitive. See Convergys, supra note 35; Delta Optimist, supra
note 40.
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awarded in these cases systematically fail to compensate particular categories of
harm, especially harm to collective employee and union interests. Though this
analysis uses British Columbia data, the results and conclusions drawn from it are
applicable in other jurisdictions, as the scope of remedial authority and ULP
prohibitions are very similar among Canadian jurisdictions.
It is apparent that LRB resistance to fully compensatory remedial awards arises
from LRBs adherence to the principle of voluntarism and its misapplication to the
organizing context. While the principle of voluntarism may be an appropriate
approach to regulating existing employerunion relationships, it is not appropriate
and does not further the avowed purpose of voluntarismfostering long-term
bargaining relationshipsto apply it to disputes surrounding the creation of these
relationships. While the principle of voluntarism may foster constructive labour
relations at other points in the unionmanagement relationship, during the delicate
union-organizing period it is vital that rights be enforced and adequate remedies
provided.
Overall, there is much unrealized potential for more effective remedial responses
to employer illegalities during union organizing lying within LRBs existing authority
and mandate. By fulfilling their mandate to fully compensate harm caused by
employer wrongdoing, LRBs would support the labour relations system, promoting a
system that is more genuinely based on voluntarism, and allowing employees to more
fully realize their right to freely choose to organize. Fulfilling the mandate would also
eliminate or reduce the existing perverse incentives for employers to engage in illegal
anti-union tactics during organizing.
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Appendix:
Table 3: Interest Compensated in Remedial Awards Relating to Unfair Labour
Practices by an Employer During Unionizing and Provided by the British
Columbia Labour Relations Board, 1990June 2007
Type of ULP
Speech
Termination
#
Percent-
age
71
0
0
0
22
4
0
2
Percent-
age
0
5
0
0
0
79
0
16
35
0
0
0
11
2
0
1
100
49
100
Compensated
Interest
Individual Employee
Collective Employee
Union
Individual & Collective
Employee
Individual & Collective
Employee & Union
Collective Employee &
Union
Individual Employee &
Union
No Compensatory
Remedy
Total
#
0
1
0
0
0
15
0
3
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737
2008]
Table 4: Elements of Remedial Awards Relating to Unfair Labour Practices by an
Employer During Unionizing and Provided by the British Columbia
Labour Relations Board, 1990June 2007
Type of ULP
Termination
Speech
Elements
of Award
Back Pay / Reversal
Communication
Access
Compensate Union
Remedial Certification /
New Vote
Declare / Cease and
Desist
Negotiate / Other
Number
0
3
9
0
7
17
2
Percent-
age
0
15.8
47.4
0
36.8
89.5
10.5
Number
42
5
3
1
3
21
1
Percent-
age
85.7
10.2
6.1
2
6.1
42.9
2
