No right (to organize) without a remedy: evidence and consequences of the failure to provide compensatory remedies for unfair labour practices in British Columbia.

• Author: Slinn, Sara

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 (ULPs) employers can use to prevent unionization. But labour relations boards (LRBs) in Canada often avoid awarding full compensation for the harm ULPs cause, leading employers 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, the author 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 attempt to maintain employers' voluntary commitment to the labour relations system, bur 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.

Les employes et les syndicats encourent des risques considerables lors du processus d'organisation d'un syndicat et leurs efforts sont souvent contrecarres par les employeurs. Les regimes de droit du travail tentent de minimiser ces risques en rendant illegales un certain nombre de pratiques deloyales de travail (PDT) que les employeurs peuvent utiliser pour empecher la syndicalisation. Les commissions des relations de travail (CRT) du Canada evitent pourtant souvent d'accorder la pleine compensation pour le tort cause par les PDT, ce qui amene les employeurs a percevoir les PDT comine des voies d'action avantageuses et a faibles couts.

L'auteure argumente que ce probleme peut etre resolu ou du moins grandement attenue sans reformes formelles ; les CRT doivent par contre prendre la pleine mesure des pouvoirs de redressement dont ils disposent deja. A travers une analyse empirique de cas entendus par la Commission des relations de travail de la Colombie-Britannique, l'auteure demontre comment les CRT choisissent systematiquement d'eviter de compenser certaines categories particulieres de prejudices, que te soit dans le cas des interets d'employes individuels ou syndiques ou dans le cas des interets de syndicats. Cet echec est du a l'usage errone du principe du volontarisme, qui insiste sur le fait que les systemes de relations de travail cherchent d'abord a assister les syndicats et les employeurs dans la resolution volontaire de leurs conflits de travail. En n'exigeant pas la pleine compensation, les CRT tentent de maintenir l'engagement volontaire de t'employeur dans le systeme des relations de travail, mais le systeme se trouve alors inevitablement a travailler contre les employes et les syndicats. Le volontarisme n'est pas de mise pendant la periode d'organisation d'un syndicat, alors que ce dernier n'est pas eneore etabli et qu'il est dono essentiel que les droits des employes et des syndicats soient respectes et proteges par les voies de droit adequates.

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. Illegal Termination 2. 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 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. Inappropriate for Organizing Disputes 5. Conclusion VII. Consequences of Deficient Remedial Responses A. Perverse Incentives B. Violations as the New Norm VIII. Conclusions and Recommendations Appendix Introduction

1. 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 out--or 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 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 representation--free 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.

2. 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 is "doomed 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 awards--even 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 tribunais imposing penal sanctions have a high level of independence from government. (5)

   An even greater obstacle to adopting punitive remedies stems from society's 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 quickly--often before employers become aware of...