Agricultural, Food and Rural Affairs Appeal Tribunal dismisses union’s unfair labour practice complaint in first labour relations decision

Authors: Richard J. Charney, Rebecca Liu Publication | September 2018

MedReleaf Corp., a licensed medical marijuana producer, successfully defended an unfair labour practice complaint filed by the United Food and Commercial Workers International Union (the UFCW or Union) at the Agricultural, Food and Rural Affairs Appeal Tribunal (the Tribunal). This is the Tribunal’s first significant decision in the labour relations realm.

Since producing medical marijuana is considered part of the agricultural industry, labour relations at medical marijuana producers are governed by the Agricultural Employees Protection Act, 2002 (the AEPA) rather than the Labour Relations Act, 1995 (the LRA).

The LRA contemplates an exclusive bargaining agent model in which a single union represents every employee within a unit of employees, including employees who would prefer to be represented by a different union and employees who would prefer not to be represented by any union. While the exclusive bargaining model is the most common model in Ontario (and Canada), it is not the sole labour relations model in democratic countries.

Unlike the LRA, the AEPA contemplates that employees within a unit may be represented by different unions. In other words, under the AEPA, an employer may deal with multiple unions as well as employees who would prefer not to be represented by a union. The UFCW is challenging the constitutionality of the AEPA regime, the litigation of which was set aside pending the parties’ litigation of the unfair labour practice issues. On August 29, 2018, the Tribunal completely dismissed the unfair labour practice application due to lack of merits.

Union must provide information about membership before it is entitled to make representations

In January 2016, the Union requested that MedReleaf disclose certain information to enable the Union to make representations pursuant to section 5(1) of the AEPA. This section requires employers to give each union that represents at least one employee “a reasonable opportunity to make representations respecting the terms and conditions of employment.” MedReleaf would not provide such information until the Union provided evidence of whom it represented. The Union refused and alleged MedReleaf was in breach of its obligations by requiring the Union to provide such evidence.

The Tribunal held that for s. 5(1) of the AEPA to have any meaning, unions must provide sufficient information to allow the employer to know which employees the union represents. The reason for this is simple: since the AEPA is based on a non-exclusive bargaining model, there may be multiple unions representing employees within a workplace. An employer cannot meaningfully listen to a union’s representations without knowing which employees that particular union represents.

In this case, the Tribunal held that MedReleaf did not deny the Union a reasonable opportunity to make representations. Rather, the Union had “derailed” the process by insisting on the traditional process pursuant to the exclusive bargaining agent model under the LRA.

No intimidation

The Union alleged MedReleaf had intimidated and coerced its employees into voting against the Union. Senior management met with employees to answer questions about unionization and express their preference the workforce remained non-unionized. The meetings were not mandatory and management did not ask employees whether they supported the Union. The Tribunal upheld MedReleaf’s right to freely express itself and concluded MedReleaf did not contravene the AEPA.

The Union also alleged MedReleaf had used external agents, including the owner of a temporary employee agency and a former executive, to intimidate employees. The Tribunal held that MedReleaf was not liable because it did not enlist their assistance. When the Union raised concerns about these individuals’ communications to employees, MedReleaf responded appropriately by immediately directing them to cease communicating with its employees.

Terminations were not a reprisal

The Tribunal rejected the Union’s allegations that MedReleaf had dismissed certain employees as a reprisal for supporting the Union. While MedReleaf laid off some casual employees after deciding to outsource some of its labour, the Tribunal held that MedReleaf’s decision was motivated by its desire to better manage its labour costs in response to fluctuations in its labour requirement. The desire to minimize labour expenses is not evidence of anti-union animus.

Certain employees on whose behalf the Union was seeking relief had signed releases in exchange for a severance package. The Union argued the releases did not bind it because it was not a signatory to the release. The Tribunal held that allowing the Union to proceed on the employees’ behalf would undermine the finality of the release, which is consistent with the case law that signed releases ought not be lightly invalidated in the interest of promoting settlements.

Conclusion

This decision establishes that a union’s insistence on following the traditional exclusive bargaining agent model in the agricultural industry will be found to be an impediment to its own rights under the AEPA. A union is not entitled to make representations until it has provided proof of its membership. This decision also confirms an employer’s freedom of expression about unions, provided it does not use intimidation or coercion. Finally, this decision emphasizes the importance of enforcing settlements. Signatories to a release cannot undermine the finality of a settlement by asking a non-signatory to seek relief on their behalf.

MedReleaf was represented by the Toronto office of Norton Rose Fulbright Canada LLP.

Citation: United Food and Commercial Workers International Union v MedReleaf Corp, 2018 ONAFRAAT 12.


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