Union avoidance techniques in Alberta

On Monday, the Alberta Labour Relations Board issued an interesting decision about the representational capacity of three employee associations that purported to represent workers at a long-term care facility in Calgary operated by the Brenda Stafford Foundation.

The Alberta Union of Provincial Employees (AUPE) was seeking to represent auxiliary care nurses at Wentworth Manor. The employer asserted that the certification applications were untimely because there were already bargaining agents representing these workers.

The Board officer found that the association were not trade unions as defined by the Labour Relations Code and the employer sought a hearing to resolve the applications. The decision is (blessedly) short and the crux is:

1. The employee associations did not appear to have ever had the consent of the employees they purported to represent.
2. “Negotiations” entailed the presidents of the association asking their members what they wanted, taking the concerns to the employer, and bringing back the employer’s response for “ratification”. Poor attendance and an informal procedure meant there was no evidence that all (or even a majority) of affected workers reviewed the proposals or agreed to them.

The Board noted:

[18] …We have no comfort whatsoever that a majority of employees affected by the agreements have endorsed the relevant Association as their bargaining agent. It did not help that prior agreements were kept under lock and key, leaving employees with nothing concrete to signal the Associations were purporting to bargain terms and conditions of employment on their behalf. We conclude the Associations are not “bargaining agents” within the meaning of the Code and the two agreements negotiated by them are not “collective agreements” under the Code.

As a result of the decision, AUPE’s certification application is likely to proceed to a vote of the affected employees.

This decision is interesting because it provides a bit of insight into union-avoidance shenanigans that employers sometimes engage in in Alberta. Here we have a sophisticated employer that has (somehow) entered into a series of collective agreements (conducted via highly irregular bargaining processes) with employee associations that don’t have any representational capacity and, indeed, appear employer dominated.

Faced with a Board officer report that the “unions” were shams, the employer then objects (delaying the vote and ultimately seeking to derail it) but offers no real evidence that the employee associations are legitimate bargaining agents. Indeed, the Board dismissed the employer’s objections based upon the employer’s evidence alone (which is an oblique but nonetheless sharp slap at the employer’s case by the Board)!

Perhaps the employer was acting in good faith and truly believed the associations represented the employees. I find that hard to believe given the employer had an economic interest in keeping out a real union.

-- Bob Barnetson