No Right (To Organize) Without a Remedy: Evidence and Consequences of Failure to Provide Compensatory Remedies for Unfair Labour Practices in British Columbia

Abstract

Employees and unions encounter significant risks during union organizing and often see their efforts thwarted by employers. Labour law regimes attempt to minimize these risks by rendering unlawful a number of unfair labour practices (ULPs) employers can use to prevent unionization. But labour relations boards (LRBs) in Canada often avoid awarding full compensation for the harm ULPs cause, leading employers to still view ULPs as advantageous courses of action with only moderate associated costs.The author argues that this problem can be solved or greatly mitigated without the need for formal reforms, LRBs rather must come to embrace the full range of remedial powers they already hold. Through an empirical analysis of cases brought to the British Columbia Labour Relations Board, the author shows how LRBs systematically choose to avoid compensating particular categories of harm, whether to individual or collective employee interests, or to the interests of the union. This failure is due to a misapplication of the principle of voluntarism, which seeks to have labour relations systems assist the voluntary resolution of labour disputes between unions and employers. By not requiring full compensation, LRBs attempt to maintain employers’ voluntary commitment to the labour relations system, but doing so inevitably causes the system to work against employees and unions. Voluntarism is not appropriate during the union-organizing period, when a union has yet to be established, and when it is thus vital that the rights of employees and unions be enforced and adequate remedies provided.

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