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UNFAIR LABOUR PRACTICES - By employer - Anti-union animus - Discrimination - Interference with bargaining right

Thursday, June 01, 2017 @ 8:43 AM  


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Applications by the union and by the employer, FedEx, for judicial review of decision of the Industrial Relations Board finding that the employer had violated the Canada Labour Code in deciding to close the Surrey Service Centre and return to using local third-party cartage agents shortly after the Union had been certified to represent the dock associates working at the Centre, and of the remedy ordered. The employer had opened the Surrey Service Centre in 2013. In 2014, the Board certified the union, making it the first unionization of employees at any FedEx location in Canada. Before the commencement of collective bargaining, the employer informed the union that it had decided to close the Surrey Service Centre and to return to the third-party cartage model. The union filed a complaint alleging the employer breached its duty to bargain in good faith and unilaterally changed employees’ terms and conditions of employment during a freeze period. The Board found the employer did not engage in such conduct, but found that the employer’s closure announcement interfered with the formation and administration of the union and its representation of the dock associates. The Board found prima facie evidence of the Employer’s anti-union philosophy, which rendered unlawful the employer’s otherwise lawful right to close its business. The Board determined that the employer had discriminated against the dock associates because they participated in the formation of a trade union. The Board indicated that it would not compel an employer to continue operating a truly uneconomic undertaking. It ordered the employer to ensure that every dock associate would be offered employment by the third-party cartage agent on similar terms and conditions and that the union was recognized as the representative for the dock associates if the employees of the third-party cartage agent were not represented by a different trade union.

HELD: Applications dismissed. The Board did not err in finding that the employer was bargaining in good faith. The Board did not accept that any delays or lack of progress were due to the employer’s bad faith, as the union was either in agreement with the process or did not communicate concerns to the employer. The employer did not change the terms and conditions of employment during the prohibition period. It was not unreasonable for the Board to assess whether there had been an actual change in the dock associates’ terms and conditions of employment based on the circumstances where a closure had been announced but not yet implemented. A freeze provision did not operate to paralyze a business. The employer always retained its general management power. The presence of anti-union animus did not necessarily transform a business change into a freeze violation. The Board reasonably found that the employer had discriminated against the dock associates because they participated in the formation of a trade union. No matter the validity of the employer’s economic reasons for closure, it still had to demonstrate that its action was free from anti-union animus. The Board assessed the evidence surrounding the closure decision and determined that the suspicious timing and manner of the decision was such that the employer could not rebut the presumption of discrimination based on union participation. It was open to the Board to conclude that the intended closure could have a serious impact on the members of a bargaining unit and the union’s ability to represent them. In light of the Board’s finding of anti-union animus, it was reasonable for the Board to determine that, even though the employer had a business justification for the closure, its decision constituted a prohibited interference. The Board reasonably constructed a remedy on the basis that the closure had not yet occurred. The ordered remedy struck an appropriate balance between the employer’s economic interests in closing the Surrey Service Centre and the union’s interest in protecting its rights and its members.

FedEx Freight Canada, Corp. v. Teamsters Local Union No. 31, [2017] F.C.J. No. 423, Federal Court of Appeal, D.G. Near, R. Boivin and D.J. Rennie JJ.A., April 13, 2017. Digest No. TLD-May292017007