Reference no: EM133938854

Question

Safety-First Canada Inc. is a hand sanitizer manufacturing company in Canada (the "Company"). Its head office is located in Toronto, Ontario with regional offices and distribution centres across the country.

All of the Company's hand sanitizers are produced in two manufacturing plants in Ontario. One plant is located in Brampton and the other is in Windsor. In each plant, there are 200 full-time production workers, 5 supervisors (who supervise and discipline workers), 5 lead hands (who direct and coordinate the work of the production workers), 5 engineers, 10 human resources workers, and 10 cleaners, who clean the plant in 8-hour shifts around the clock. That is, each location has a total of 235 workers.

Saeed (a full-time production worker in the Brampton plant) and his good friend, Hilda (a lead hand in same plant) are concerned about the health and safety conditions at their plant after Alex, who works as a production worker, was injured while operating a machinery which malfunctioned a few times in the past. When the management quickly dismisses their concerns ("the machine is just fine; this was a slight injury; your safety is our number one priority"), Saeed and Hilda turn to Unifor (the "Union") in an attempt to organize their workplace. Unifor Local 106 files an application for certification as the exclusive bargaining agent of "all employees of Safety-First Canada Inc. in Brampton, Ontario, save and except supervisors and engineers". The Union estimates that there were 225 workers in the bargaining unit and provides the Ontario Labour Relations Board (the "Board") with signed membership cards on behalf of 95 workers in its proposed bargaining unit.

A few days later, the Company files its response stating that the correct bargaining unit description is actually "all employees of Safety-First Canada Inc. in Ontario, save and except the Toronto head office workers, supervisors, engineers, human resources employees, lead hands, and cleaners". The Company explains that: (1) the employees in both plants (Brampton & Windsor) should be organized together; (2) the lead hands should be excluded because the supervisors usually ask them for input, prior to rendering a decision on a disciplinary action; (3) all human resources employees should be excluded because they may obtain access to annual payroll reports by virtue of their job description or position; and (4) cleaners should be excluded from the bargaining unit because they own the cleaning supplies and are allowed to work for other companies. The Company concludes that there are 400 employees in its proposed bargaining unit description.

On the same day, the Company calls an emergency town hall to discuss the employees concerns. The Company's President states in the meeting that she is very sympathetic to the expressed concerns and is determined to hire a health and safety consultant and engage in serious Page 3 of 3 conversations with employees about their suggestions. She also notes that "candid conversations and effective changes may only occur if a union is not involved as unions tend to delay processes and spread fears and mistrust between employees and their employer".

The Board orders that a certification vote will be held a few days later. A hearing is scheduled for a later date to determine the appropriate bargaining unit. And indeed a few days later, the vote is held. Although the votes are not yet counted, as the Board has to deliberate on the
appropriate bargaining unit, Saeed and some other production workers are not very optimistic. In fact, they are pretty certain the Union is going to lose the vote. Feeling exhausted by the amount of work they put into the certification application, some production workers skip work the next day, while others, including Saeed, work really slow for lack of motivation. In response, the management decides to discipline the workers.

Hilda is still optimistic about their chances of winning the vote. She starts planning for the day after certification. Unfortunately, she finds out that the Government of Ontario has recently passed a new Bill amending the Labour Relations Act and defining hand sanitizer manufacturing as "essential services" and prohibiting strikes by any worker in this industry. The Government explained in the Bill that "Ontario is facing a serious issue of hand sanitizer shortage and cannot afford to leave the Province without any local solutions in the midst of a pandemic".

1. A few weeks later, the Board reaches a decision regarding the appropriate bargaining unit and the votes are counted. The Union loses the vote.

2. Were the production workers on a strike? If so, was it a legal strike? Can they be disciplined? What are the remedies available to the parties in the circumstances? Explain your answer.

3. Since the Union lost the vote, what complaint can the Union file with the Board? What will the Union argue? What will the Company argue in response? What do you think the Board is likely to hold? What remedies it may award?

4. What can the Union argue if they wish to challenge the new legislative amendment? What would be the argument in response? Who is likely to win this challenge? What could be the potential remedies?