What is an Unfair Labour Practice complaint?
An Unfair Labour Practice (ULP) complaint is a formal complaint which may be filed by either a union or a company. A ULP complaint is filed under the labour legislation of the applicable jurisdiction. For example, the Labour Relations Act of Ontario or the Canada Labour Code (federal jurisdiction) address ULP complaints, providing specific procedures to follow and grant broad powers to Labour Boards to fashion remedies.
A ULP complaint is not a grievance. A grievance is a complaint made by a party to a collective agreement, alleging a breach of that agreement. A ULP complaint addresses allegations that one party has acted in bad faith or in an illegal manner.
Although a ULP complaint may be filed by either party in a labour dispute, often it is a tactic chosen by unions. This does not mean that all union driven ULP complaints are frivolous. Rather, unions have a tendency to file ULP complaints to put pressure on employers in related proceedings (i.e. union certification attempts or in collective bargaining).
Legitimate union driven ULP complaints are aimed at preventing certain employer actions which are considered illegal under most labour legislation. They address such things as:
Interference with employees acting in concert to protect rights set out by labour legislation, including the right to join or form a union. This includes but is not limited to the firing of employees during a union organizing drive.
Interference with the formation or administration of a trade union.
Discrimination against an employee for filing a complaint with a Labour Board or taking part in any Labour Board proceedings.
Refusal to bargain in good faith with the union that is a lawful representative of its employees.
Similarly, ULP complaints may be filed against unions, for such things as:
Restraining or coercing employees (or employers) in the exercise of their rights under the applicable labour legislation.
Causing an employer to discriminate against an employee.
Refusing to bargain fairly with an employer on behalf of the employees the union represents.
In representing its members, acting in a manner which is discriminatory, arbitrary or, in bad faith.
Engaging in illegal strike activity.
Employers should not be afraid of filing ULP complaints against unions, where appropriate.
A word about illegal strike activity
In Canada (unlike the United States) secondary picketing of third parties which do business with an employer subject to strike action is legal, based upon the Charter right of Freedom of Expression. That said, if a union refuses to allow its members to cross a picket line of a separate company subject to a strike, that may in fact itself constitute an illegal strike and is subject to a ULP complaint. This often happens in the transportation industry, where the unionized employees of one transportation company refuse to cross the picket line of a company subject to a strike. This is illegal, even if the applicable collective agreement permits them to do so.
The above is not an exhaustive list of those actions which constitute Unfair Labour Practice (ULP) complaints. If you believe that an unfair labour practice has been committed, you should speak to an experienced labour lawyer. Not all questionable labour practices rise to the threshold of an ULP. For example, the refusal to pay overtime would constitute a violation of Employment Standards legislation (and it would be unfair) but does not constitute an Unfair Labour Practice. Similarly, a complaint may fall within the parameters of an existing collective bargaining agreement and therefore properly be the subject of grievance arbitration, and not a ULP application.
What do I do if I have been served with an Unfair Labour Practice complaint?
First, don't panic. Often unions file ULP complaints against employers as a pressure tactic in secondary or related proceedings.
Second, take it seriously and respond in a timely fashion. If you do not respond as required by the Rules of Procedure of the applicable Labour Board, the Labour Board may treat the allegations as truthful, and an order may be made against your company, without an opportunity to defend your position. We strongly recommend consulting with an expert labour lawyer as soon as you receive the ULP complaint.
Third, make sure your response is complete. The Rules of Procedure of all Labour Boards require both complaints and the response to complaints to be fully particularized; in other words, the allegations and the response to those allegations, each have to cover what was said, who said it, where it was said, and should address the reasons why the activity constitutes an Unfair Labour Practice complaint. The lawyers at Hyde HR Law have won many Unfair Labour Practice cases against unions, on the preliminary basis that they failed to establish what is known as a "prima facie"case.
Most Labour Boards have Rules of Procedure which not only set the specific requirements of filing or responding to a ULP complaint (including timelines) but also include specific forms which parties must use for the processing of such complaints. While the Labour Boards have the authority to provide relief to parties who make innocent mistakes in the process, that power is wielded at its discretion. Do not take the risk. Consult with a qualified and experienced labour lawyer as soon as you receive an Unfair Labour Practice complaint.
What can Hyde HR Law do for my company?
Hyde HR Law specializes in Labour Law. We provide strong and effective representation (and guidance) to employers who find themselves facing Unfair Labour Practice complaints. Contact us today.