The labour board has ordered remedial certifications only a handful of times in past decade
The British Columbia Labour Relations Board made a rare move when it dealt with Amazon’s violations of provincial labour law by certifying a workers’ union at one of the company’s BC warehouses, stating that no other remedy “would adequately address the consequences of Amazon’s conduct or provide sufficient deterrence.”
Under section 14 of BC’s Labour Relations Code, the labour board can certify a union in response to illegal labour activity by an employer. According to an LRB report published in February, the labour board has only granted requests to take this route – known as remedial certification – 13 times between 2014 and 2024.
Apart from a high of five orders in 2022, the labour board has ordered remedial certification between zero and two times per year over the course of the decade, even though BC passed a union-friendly bill in 2019 that made it easier to pursue the remedy.
The labour board issued its decision on the dispute between Unifor Local 114 and Amazon’s Delta, BC YVR2 Fulfillment Centre on July 10.
“It’s important to underscore that [Amazon] had a very sophisticated system meant to inhibit or impede organizing drives by unions,” says Colin Gusikoski, a partner at Victory Square Law Office who represents Local 114.
Gusikoski argues that Amazon pushed for its YVR2 workers to vote on whether to unionize in lieu of remedial certification “because they’ve employed their sophisticated system, their anti-union campaign, to change the vision of the employees.”
He added, “The fact of the matter is that… because of Amazon’s conduct, the board wasn’t confident that a vote would reflect their true wishes.”
In its decision, the labour board found that Amazon committed multiple unfair labour practices during an organizing campaign by YVR2 workers. These include going on an “artificial” hiring spree in an attempt to thwart the workers’ certification application and using “coercive and intimidating” messaging to persuade workers to vote against unionizing.
In a statement on Wednesday, Amazon spokesperson Kelly Nantel said the company plans to appeal the BC labour board’s decision. “This decision is wrong on the facts and the law – it goes against what our employees have said they want, and deprives them of their right to make an informed decision.”
She added, “The board has decided to unilaterally overreach instead of giving our employees a chance to be heard.”
But Kayla Bergsson, an associate at Victory Square Law Office who also represents Local 114, told Canadian Lawyer that she does not believe the labour board’s decision is “vulnerable to challenge.”
“We think the board’s recent decision on Amazon’s unfair labour practices and remedial certification is compelled by the evidence adduced at the hearing and we see the conclusions as consistent with long-standing board case law,” she says.
“The determined breaches of the [Labour Relations] Code rest comfortably on the evidence presented at the hearing and the board’s remedies are rationally connected to those findings.”
The labour board’s decision made the YVR2 group only the third Amazon workers’ union to receive certification in North America, despite years of worker organizing at other Amazon facilities.
At JFK8, the Staten Island, NY warehouse that successfully unionized in 2022, workers have accused Amazon of refusing to bargain, and have yet to reach a collective agreement with the company. Confédération des syndicats nationaux, which represents the first certified Amazon workers’ union in Canada, has meanwhile alleged that the company’s January decision to shutter all of its Quebec operations is a tactic to avoid bargaining with workers at its Laval warehouse.
Asked whether he anticipates similar challenges at YVR2, Gusikoski notes that BC’s Labour Relations Code requires parties to bargain in good faith. In cases where this doesn’t happen, parties can turn to strikes and lockouts.
But he says that unlike in some other jurisdictions, BC’s Code also has provisions that allow parties to apply for a mediator to help negotiate a first collective agreement. If the parties can’t resolve their differences, the mediator can either recommend the terms of a collective agreement, or recommend to the labour board that the dispute be sent to an arbitrator who can impose a collective agreement upon the parties.
While this latter remedy is not common, one of the things mediators “consider when they’re giving a recommendation for interest arbitration is that there were historic unfair labor practices,” Gusikoski says.
“The legislation is written with the knowledge that employers don’t want unions, and they’ll try strategies as much as possible to avoid unionization,” he says, adding, “That’s why [the remedy] is there. That’s why the board would use it.”
