Unfair Labour Practices during Organization
the employer has an incetive to try and derail certification because unionization will
cost money and cut into profits
labour legislation seeks to avoid this by prohbiting unfair labour practices
most commonly occur during organization, because this is the employers best
chance to derail the union entirely
BC Labour Relations Code
o 6(3) it is an unfair labour practice to discriminate or take action against
o 6(4) gives employers an addtional protection where employee status can be
changed for proper cause or where reasonably necessary for the proper
conduct of business
Board may order reinstatement or damages, or may immediately certify union
where a decision is motivated even in part by animus, this is an unfair labour
o burden on employer to disprove animus
Duchesnau v. Conseil de la Nation Huronne-Wendat  CIRB No.1 (Canada Industrial
P dismessed from long time employment
he says it is due to animus, the employer calims it is from workplace misconduct,
amounting to fraud
o but P was acquitted at a preliminary hearing of all criminal charges
code provides that workers have right to select bargaining agent
during organization drive, board is particularly careful to protect employee rights and
will ensure no employer animus
even if there is a pretext to fire, anti-union animus, even if just incidental, that will
be an unfair labour practice.
Employer bears burden of proof to rebut presumptino of anit-union animus.
Board to determine whether animus palyed any part at all in the dismissal.
On a BoP in this case, the board found that it unprobable that the P's union activities
had nothing to do with the termination.
So while P's behavior questionable, the employer could not prove that it's dismissal
was not provoked in part by anti-union animus
during organization period, there is a presumption of anti-union animus that the
employer must be able to rebut on a BoP
even if there is a pretext to fire and the animus plays only an incidental role,
dismissal will still be an unfair labour practice.
shows that "proper cause" provision has some teeth where you have a clear procedure applied in a non-discriminatory fashion, this may
be enough to discharge the presumption of anti-union animus
o basically where the termination occurs with acceptable procedural fairness,
5(4) may protect.
Non-Motive Unfair Labour Practices
some statutes uclear as to whether motive plays a role
if not, the section may outlaw any employer action that has a chilling effect on a
BC 6(1) makes it unfair to interfere with the administration or formation of a trade
o does not explicitly require animus
o because it is so broad, it has the potential to swallow up all the other labour
typically what is required is that there be a finding of no anius, and then a balancing
decision between the interests of the union and the business purposes
Canadian Paperworkers Union v. International Wallcoverings,  OLRB
Employer kept company going by using strike breakers
union learned about strikebreakers, confronted them
some members fired
o some of these members assaulted scabs, damaged vehicle, etc
o some were found not to have even been there at all.
ss. 66 and 70 prohbiti certain anti-union acts when there is animus
64 prohibits acts, but there is no express requirement of animus
o if this is the case, how can 64 be interpreted such that it does not make ss.
66 and 70 obsolete?