Labour Relations - Unfair Labour Practice
Table of contents
What is an unfair labour practice complaint?
- Unfair labour practices are acts that interfere with a union’s right or ability to represent its members or an employee’s right to make up their own mind about whether to support a union. Unfair labour practices also include acts by unions that interfere with an employer’s right to operate its business.
- These rights are protected by the Canada Labour Code.
- A violation of these rights can be the subject of a complaint to the Canada Industrial Relations Board.
What are some examples of unfair labour practices?
- Employers, employees and unions can all commit unfair labour practices.
- Some examples of unfair labour practices that can result in complaints against an employer include:
- trying to influence its employees’ decision on whether to unionize;
- changing terms and conditions of employment during collective bargaining;
- communicating with employees directly about negotiations during collective bargaining in a way that undermines the union;
- disciplining or terminating the employment of an employee who is involved in union activities because of their involvement in union activities;
- hiring workers to do the work of employees during a work stoppage (strike or lockout) to undermine the union’s representation of its members; and
- bargaining in bad faith.
- Some examples of unfair labour practices that can result in complaints against a union include:
- forcing an employer to bargain with the union for a bargaining unit that the union does not represent;
- bargaining terms and conditions of employment with an employer when the union knows that another union represents the bargaining unit;
- requiring an employer to terminate the employment of an employee because the employee is no longer a member of the union for a reason other than non-payment of dues;
- communicating with employees at the workplace during working hours to influence their decision to unionize; and
- disciplining an employee, terminating an employee’s membership or penalizing an employee by applying membership or disciplinary rules in a discriminatory way.
Who can file an unfair labour practice complaint?
- Employees of federally regulated employers can file unfair labour practice complaints with the Board against their union or their employer.
- Unions representing employees working for a federally regulated employer can file unfair labour practice complaints with the Board against the employer.
- Federally regulated employers can file unfair labour practice complaints with the Board against the union.
For information about whether an employer is federally regulated, click here.
When can a complaint be filed?
- Complaints must be filed with the Board within 90 calendar days of the date that the complainant first knew or should have known of the act or events leading to the complaint.
- If you file a complaint after the 90-day period, you must ask for more time to file the complaint and explain why it was not filed within the 90-day period. The Board may not accept the complaint.
- Generally, complaints about a union’s discriminatory application of membership or disciplinary rules must go through that union’s internal appeal process first.
Who is involved in a complaint?
- The person or the organization (employer or union) making the complaint. This person or organization is called the “complainant.”
- The person or organization (employer or union) against whom the complaint is being made. This person or organization is called the “respondent.”
- Together, the complainant and the respondent are the “parties.”
- An Industrial Relations Officer (IRO) from the Board. For more information on the role of the IRO, click here.
What information do I need to include with my complaint?
- The Board does not provide a complaint form for unfair labour practice complaints, except for duty of fair representation complaints under section 37 of the Code.
- For all other types of unfair labour practice complaints, you can file your complaint by writing a letter to the Board.
- It is important that your letter include the following information (incomplete information could result in delays in processing the complaint):
- Your name and contact information (address, telephone number, and email address);
- If you are a union, the name and address of the union and the name and contact information (address, telephone number, and email address) of the person to whom correspondence can be sent;
- If you are an employer, the name and address of the business and the name and contact information (address, telephone number, and email address) of the person to whom correspondence can be sent;
- The bargaining unit involved;
- If you know it, the section of the Canada Labour Code that has allegedly been violated;
- A statement of the facts:
- Describe for the Board as completely as possible what happened, when it happened, where it happened, and who was involved.
- As much as you can, start at the beginning of the events and continue in order to the last event.
- Any documents that you have that support your complaint (these could be the collective bargaining agreement, notices, flyers, communications such as emails and letters, and union policies); and
- A description of what you would like the Board to do (see the section below on what the Board can order when deciding unfair labour practice complaints).
How do I file my documents, representations, or evidence?
- All complaints, applications, responses, replies, and supporting documents are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board.
- Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, by mail, by registered mail, by courier, or by hand.
- When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.
What happens after the complaint has been filed?
- The Board will send a letter acknowledging receipt of the complaint to the person or organization (union or employer) that filed the complaint (the complainant) or their representative and the person or organization (union or employer) against whom the complaint is made (the respondent).
- This letter will include a copy of all the documents that the Board received from the complainant and will request submissions from the respondent.
- If the complainant is an employee, the Board will also send the acknowledgment letter and the complaint to the union or the employer if they are not already a respondent. They can ask the Board to participate in the complaint as an interested party.
- Typically, the respondent is given 15 calendar days to respond to the complaint (called a response), and the person who filed the complaint has 10 calendar days after that to respond to anything the respondent filed (called a reply).
- These deadlines are shortened if the alleged unfair labour practice is dismissal for union activity or the use of replacement workers. For these types of complaints, the deadlines are normally 5 calendar days for the response and 5 calendar days for the complainant’s reply.
- The Board may refuse to consider any responses or replies received after the deadline unless the party has asked the Board to extend the deadline and the Board agrees. Consent from the other party must be sought before asking the Board for an extension.
- The Industrial Relations Officer (IRO) assigned to assist the Board and the parties with the complaint will contact both parties. They will help collect any missing information, answer any questions that the parties have, and see whether the parties are interested in trying to settle the complaint.
- For more information about the role of the IRO, click here.
What do I include in my response or reply, and how do I file it?
If you are the respondent, you will write to the Board to tell it the facts that the complainant may have gotten wrong or not included.
- You will also send to the Board any other documents that you have that are relevant to the complaint.
- You must send a copy of your response to the complainant. When you file your response, you must tell the Board how and when you sent the response to the complainant.
- If you are the complainant and you need to respond to anything said or sent to the Board, you can prepare and file your reply. You do not have to file a reply, as it is only necessary when the respondent has raised new facts or submitted additional documents in its response. However, you must indicate in writing your desire not to file anything further. There is no need to write to the Board to repeat what you have said in the complaint.
- You must send a copy of your reply to the respondent. When you file your reply with the Board, you need to tell the Board how and when you sent the reply to the respondent.
- You are responsible for providing the Board with information, such as documents, that is relevant to your case.
- You must use the Board’s E-Filing Web Portal, which allows you to file documents directly in the Board’s centralized document filing system. When using the E-Filing Web Portal, you do not have to send a paper copy of the same document to the Board.
Can I be represented by someone else?
- Yes, each party can be represented by the person of their choice.
- The Board does not provide lawyers to assist parties.
- The Industrial Relations Officer (IRO) working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
- The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
- It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.
What can the Board order if the unfair labour practice complaint is successful?
- When the Board finds that an unfair labour practice occurred, it can award things such as the payment of damages to compensate the complainant for their losses resulting from the unfair labour practice and put the person back in the position they would have been in had the unfair labour practice not occurred.
- The Board can also order an employer or a union to do or to stop doing something to correct the harm that was imposed.
- In rare cases, when there has been significant interference by the employer in the unionization of the workers to the point that even a representation vote does not reveal the employees’ true wishes, the Board can order, as part of the remedy in an unfair labour practice complaint, that the union be certified as the bargaining agent for a group of employees despite a lack of evidence of majority support.
Is the information in my file confidential?
- Parties who file documents with the Board are participating in a public hearing. This means that the documents that are in the file are available to the public.
- If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case.
Will there be mediation?
- Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
- The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
- For more information on the mediation process, please click here.
Will there be a hearing?
- Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing.
- If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference.
- For more information on the Board’s hearing process, please click here.
When will I get the decision?
- The Board will notify you in writing of its decision.
- The time that it takes the Board to issue a decision can vary depending on the complexity of the case.
- All important decisions of the Board are published on the Decisions page.
- You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after a complaint is filed.
What can I do if I do not agree with the decision?
- There are two possibilities:
- You can file an Application for Reconsideration with the Board; or
- You can file an Application for Judicial Review with the Federal Court of Appeal.
- In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.
- Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.