Canada: Employer Rights During A Unionization Campaign: More Than You Think! | The HR Space

Last Updated: August 25 2017
Article by Karine Fournier and Valérie Gareau-Dalpé

In Québec, as in other Canadian jurisdictions, when a union applies for certification to represent a group of employees, the employer is not left without rights or remedies. It may carry on business as usual and it has a number of tools at its disposal by which to oppose the application, including challenging the composition of the bargaining unit proposed by the union. However, the employer has the heavy burden of proving not that there is a more appropriate unit than the one proposed by the union, but that the proposed unit is actually inappropriate in the specific context of the company. On the other hand, if the union files an application for unfair labour practice to challenge a decision made by the employer after the application for certification is filed, the union will have the burden of proving that the employer's decision was tainted by anti-union animus.

In a very recent decision1, the Administrative Labour Tribunal of Québec (the "Tribunal") reaffirmed the principles that apply to challenging an application of this nature, while at the same time dismissing an unfair labour practice complaint under the Labour Code (the "Code").

The Facts

On September 21, 2016, the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (I.A.T.S.E.), Local 56 ("IATSE"), filed three applications for certification to represent the employees of Solotech inc. ("Solotech"), a company with offices in Canada and the United States specialized in the live performance and entertainment industry and that also does business nationally and internationally. By way of these applications, IATSE sought certification for three separate bargaining units: (1) shop and repair technicians, (2) technicians assigned to touring performances, and (3) technicians assigned to local events. Solotech challenged the composition of the bargaining units on the basis that a single unit covering all of these employees was the only appropriate unit given the specific nature of its activities.

It is important to note that these certification applications were filed on an urgent basis in response to Solotech's decision to contract out its transportation service, which consisted of eight drivers who had recently joined IATSE.

Several weeks later, IATSE also filed an unfair labour practice complaint. In the union's view, the decision to contract out the transportation service aimed to intimidate the other employees and undermine the IATSE's unionization campaign in which it had been engaged in since the fall of 2015.

Inappropriateness of the Proposed Units

The Tribunal began by acknowledging the existence of a community of interests among the groups of employees covered by the applications for certification. However, even though the various technicians did not perform their work under the same physical conditions and did not have the same employment status or terms of employment, the evidence on the whole showed that (i) they performed the same type of functions, (ii) the qualifications required to hold any of these positions were the same, and (iii) the various functions were interdependent and interchangeable.

The Tribunal held that the nature of Solotech's business called for a pool of mobile and rapidly available technicians. Given its finding in that regard, the Tribunal concluded that a unit that covered only one part of that pool would be inappropriate since it would [translation] "exclude from its intended scope employees who are in frequent contact with one another, who hold interdependent and interrelated positions, and who may be moved from one category of personnel to another."

No hindrance or interference

Applying the principles established by the Supreme Court of Canada in the Wal-Mart decisions,2 the Tribunal concluded that apart from pointing to the timing between the certification of the drivers and Solotech's announcement of its decision to contract out local transportation, IATSE had not discharged its burden of proving that the impugned decision was tainted by anti-union animus.

The Tribunal found that Solotech's decision was related to the need to free up additional money for the purchase of new equipment during a period of exponential growth. The Tribunal also accepted Solotech's argument that an employer has the right to restructure part of its business in order to achieve better results, and not only when it is experiencing financial troubles. In short, the decision to contract out the transportation activities had been made "in the ordinary course of business".


This decision is a reminder that an employer can challenge the composition of a bargaining unit that it considers inappropriate in light of its activities and business characteristics. It is also an interesting application of the "business as usual" test to the situation of a rapidly expanding company. It shows that a company may not only continue its usual activities during that period, but may also make major decisions about its growth and the organization of its activities in that context.


L'Alliance internationale des employés de scène et de théâtre, des techniciens de l'image, des artistes et des métiers connexes des États-Unis, ses territoires et du Canada (IATSE), section locale 56 and Solotech inc. (PDF - available in French only)

Plourde v. Wal-Mart Canada Corp. (PDF), United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp.  (PDF). 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions