ALRB Finds Management Did Not Taint Union Revocation Application

By: Sarah Coderre

Published: 26 February 2024

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In United Steel, Paper and Forestry, Rubber Local Number 7226 v Certain Employees of Vitafoam Products Canada, 2024 ALRB 17(Schlesinger, Chair), the ALRB denied the Steelworkers’ Union application alleging that management had tainted a Revocation application brought by employees.

In unionized workplaces, an employee may bring a revocation petition under the Alberta Labour Relations Code to have a union de-certified in the workplace, meaning that the workplace transitions from a unionized environment to a non-union environment. Understandably, unions tend to view revocation petitions with hostility and suspicion, as the process to make a workplace unionized is complex and labour-intensive (pun intended). In some instances, employees have been set up by management to bring revocation petitions because it is often in the best interests of management to have the workplace non-unionized, as they tend to have more bargaining power and authority when dealing with employees as individuals rather than as a collective.  As such, when a revocation petition is brought forward requesting that the workforce vote on whether or not to remain unionized, challenges are often brought by the representing union on a number of grounds to stop the vote before it can even go forward. One challenge often brought is that the petitioner is actually a management employee or is acting on behalf of management in bringing forward the petition, and he or she will influence the unionized employees to vote in favour of dismantling the union in the workplace.

Analysis / Conclusion

This is the backdrop against which this recent decision was made. Vitafoam Products Canada runs a manufacturing plant that makes and supplies “bed in box” mattresses, which are memory foam mattresses that are compressed and stored into boxes, as well as a secondary plant that makes related foam products of various kinds.  Bow River Law LLP partner and co-founder, Joel Fairbrother, represented the petitioner, who was seeking to have a vote held on whether the workplace should remain unionized. The Union, represented by Chivers Carpenter, sought to have the revocation petition invalidated on the basis that the petitioner was a part of management or perceived as being part of management, and as such, any resulting vote would be tainted because he would be able to influence other employees to vote against the union.  

The ALRB applied the test from UFCW Local 401 et al v Lansdowne Foods, [1992] ALTA LRBR 413 in determining whether or not the petition was valid. The assessment criteria from Landsdowne required the ALRB to consider whether the petition was “a genuine and voluntary expression of the wishes of the employees, free from the influence of management”. The hallmarks of a voluntary petition are that it is: (a) authentic; (b) understandable; (b) fairly presented to employees; (d) freely signed and (e) free of actual or perceived employer influence. The Union’s main argument was that the petitioner was viewed as being a management employee and would be able to unfairly influence the other employees in the vote. As the petitioner did not have an official management role or title, and the evidence at the hearing focused on various indicia that would support him being perceived as a management employee or acting on behalf of management.

The Union led the following evidence: the petitioner parked in the front parking lot whether management employees parked; he had keys to the main plant facility, similar to other management employees; he had access to the PPE locker and was responsible for distributing PPE to other employees; he was a member of the Safety Committee and conducted walkthroughs of the main plant for safety hazards along with management employees; and he had a side contract with the company for security work, which the other employees knew gave him access to security cameras on-site and allowed him to monitor their work.

While the evidence seemed to provide a solid basis for the conclusion that the petitioner was perceived to be a part of management or at least acting in concert with management, the petitioner provided further evidence and context that showed that the indicia relied on by the Union created no perception among his peers that he was in management or acted in concert with management.

Specifically, the petitioner led evidence that he had had keys to the main plant facility since he started his employment because he worked the early morning shift and arrived at 3:00 am to start up the manufacturing equipment. His early start time also accounted for him parking in the front parking lot – it was closest to the plant door, and it was more convenient and accessible for him to park there when he arrived early in the morning before anyone else. Other employees who worked the night shift also parked in that parking lot from time to time.

Additionally, the petitioner testified that he had access to the PPE locker because it was one of his duties to perform a regular inventory of the PPE locker and advise when supplies were getting low. Others in the workplace knew that he had access to the PPE supplies, and routinely asked him for additional supplies from time to time.

While the petitioner did perform walkthroughs from time to time of the plant with management employees, this was clearly a part of his Safety Committee work, and under the Collective Agreement one unionized employee was required to be on the Safety Committee at all times.

Further, there was no evidence that the petitioner’s additional security work from the employer was relied on by management to surveil other employees during the day. His access to security camera footage was necessary in the event of a break-in or vandalism, but no such incidents had occurred and he had not been requested by management to review the footage and report on such footage at any time.

Finally, and most importantly, the Union’s own witnesses testified that at no time did they believe the petitioner had the authority to hire, fire, or discipline any employees in the workplace, and that they did not believe he had any influence with management over which employees were hired, fired, or disciplined.

In light of all of the evidence, the ALRB determined that there was no cogent evidence that the petitioner was a management employee or was perceived to be a management employee by the unionized employees in the workplace, and the revocation petition was allowed to stand.

My Take

The Vitafoam Canada decision provides a clear application of the test from Landsdowne, and it serves as an important reminder that these types of hearings before the ALRB are heavily-fact dependent. The Union felt strongly that the petitioner was essentially a mole for the employer, and it offered up some fairly generic evidence in support of its position. However, the ALRB does not rely on feelings or hunches when assessing revocation applications. It relies on clear evidence. The Union was unsuccessful in this case because the petitioner was able to muddy the evidence relied on by the Union and dilute its impact by showing that the Union’s evidence was not conclusive when viewed in a different light.

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