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LRB awards legal costs to union
July 22, 2000

In North American Construction, BCLRB No. B267/2000 the IUOE Local 115 applied for certification pursuant to Section 19. It also alleged the employer had unfair labour practices by, among other things, stacking the bargaining unit constituency and by adding to payroll records names of persons who were not genuine employees of the employer. The employer argued the union’s allegations were academic because it had since agreed that the employees in question would not be on the voters’ list. It also argued that it had every right to place employees on its British Columbia payroll and any problems with payroll records were inadvertent.

The Panel found that the employer had committed a fraud on the Board by knowingly altering records such that it would appear to the IRO that certain employees worked for the employer in British Columbia when they did not and that employees were working for the employer before they actually did. The employer had also transferred employees from another company to its own in an attempt to obscure the true constituency.

As part of a random audit system, the Board has mandated IRO’s to conduct checks of original employer records to ensure that accurate information is being provided but the processes in place simply would not have uncovered the deception in this case. The employer must have known that the very nature of the investigative machinery would not be able to identify the inaccuracies that it planted in the records upon which it knew the IRO would rely. The employer had attempted to exploit the weakness in the system, that is the requirement for good faith and honesty on the part of the parties.

Therefore, the employer engaged in fraudulent misrepresentation with regard to the scope of the constituency for the purposes of misleading the IRO and the Board. The employer committed an unfair labour practice by fraudulently misrepresenting the size of its work force which constituted improper interference with the formation and selection of a union.

In this case, a mere declaration of unfair labour practice was not an adequate remedy. The other usual remedies were also not appropriate because of the potential impact on the incumbent union’s rights and the employees’ right to select their bargaining agent. The exceptional and compelling circumstances in this case warranted an award to the union of legal costs in relation to that part of the case related to stacking. Although the Panel noted case law that indicated that costs of in-house legal counsel are taxed in court with the usual procedure, it left the manner of taxation to the parties to decide. The union’s application was granted in part (click here for full text of LRB decision).