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Union Certifications: What Employers Need to Know about Union Organizing

Few events can more dramatically impact the way your business operates than the certification of a union.  In its simplest terms, a union certification represents the end of an employer’s 1:1 relationship with its employees, and the start of a collective bargaining relationship in which the union is the voice of employees.

Understanding the way that unions acquire bargaining rights and become certified under the Ontario Labour Relations Act is the first step to effectively managing and responding to organizing efforts in the workplace.

Union Organizing Drives

The goal of an organizing drive is for the union to be certified by the Ontario Labour Relations Board (“the Board”) as the exclusive bargaining agent for all employees in a specified bargaining unit.  In many cases, that bargaining unit is defined as all employees of a particular employer, often within a particular municipality, and will typically identify a number of exclusions.  Most exclusions are determined by the Labour Relations Act, as managers, supervisors and persons above those ranks are excluded, along with persons employed in confidential labour relations capacities.  In general, both unions and the Board favour “all employee” bargaining units, rather than fragmenting a workforce into smaller bargaining units.

In order to be certified as the exclusive bargaining agent for a particular bargaining unit, the union must complete a series of steps set out under the Labour Relations Act.  A drive to collect membership cards is the first step of that certification process.

i. Membership Cards

A union’s first goal in an organizing drive is usually to collect as many signed union membership cards as possible from the employees in the applicable bargaining unit.  Each membership card is signed and dated by an employee and states that the employee wishes to be represented by the union in question.  The union must file signed cards on behalf of at least 40% of the members in the proposed bargaining unit along with an application for certification to the Board.

ii. Application for Certification

Along with the membership cards, the union must file an application to the Board setting out a host of information, including the description of the proposed bargaining unit, the number of employees that the union believes to be employed in that unit, as well as details as to how the Board should conduct a secret-ballot vote of the employees.  Importantly, the membership cards are confidential; at no time will the employer be informed as to the identity of the employees who signed cards.

The application must be served on the employer and filed with Board, and in turn triggers an obligation on the employer to file a response to the application within two (2) business days.  In many cases, an application will be served and filed at the end of day Friday, and an employer will be obligated to respond by the end of the following Tuesday.  The employer’s response must include a detailed list of employees in the proposed bargaining unit (which allows the Board to assess whether the 40% threshold has been met), identify whether the employer agrees or disagrees with the proposed bargaining unit description (and counter-propose a different description if in disagreement), and respond to the union’s proposals on a secret-ballot vote.

iii. Secret-Ballot Vote

The Board reviews the application and response to determine whether the application will proceed, including whether the bargaining unit proposed by the union could be appropriate for collective bargaining, and whether the application is supported by at least 40% of the employees in the proposed unit.  If the statutory criteria are met, the Board will order a vote of all affected employees to occur on the fifth day following the date on which the application was filed.  For example, if an application is filed on a Friday, the Board will typically hold a vote of all affected employees on the following Friday.  This is a very short window of time should an employer be caught flat-footed and unaware of the union organizing campaign!

iv. Success or Failure

The outcome of the vote is determined by a simple majority (50%+1) of those who vote.  For example, if a proposed bargaining unit includes 100 employees, but only 10 show up to vote, if 6 or more of those employees vote in favour of the union, then the union will be certified to represent all 100 employees.  Accordingly, it is critical that as many employees cast a ballot as possible to ensure that the majority of employees determine whether the union’s application succeeds or fails.

Please note that the construction sector in Ontario has specific procedures and rules that differ from the overview addressed above, and include an automatic certification procedure that can result in certification without a vote of employees.  Should you have questions regarding the construction sector we encourage you to contact us directly.

WEBINAR October 17, 2018:

Click here to register for Dentons’ live webinar on October 17, 2018 for further details on union organizing drives, an employer’s rights and obligations during such drives, and potential changes that may be made by the Ford government.  The Webinar will also feature a Q & A discussion.

Union Certifications: What Employers Need to Know about Union Organizing

Supreme Court of Canada Explains Constitutional Right to Collective Bargaining

In a decision released January 16, 2015, the Supreme Court of Canada once again revisited how much constitutional protection is afforded to the collective bargaining process. In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the Court held that a special labour relations regime legislated for the RCMP infringed section 2(d) of the Charter of Rights and Freedoms (freedom of association) and could not be justified as a reasonable limit under section 1. The relevant provisions were struck down, but will remain in effect for the rest of 2015 so that the Government can enact a replacement regime.

Collective bargaining was historically denied to RCMP members on the basis that it was necessary to preserve the RCMP’s stability, reliability, and image of neutrality. Initially, the RCMP was excluded outright from any labour relations scheme. Then, beginning in the 1970s, a series of reforms gradually allowed for some degree of representation, while limiting employees’ rights to be represented in grievances or other proceedings. At the time the case was heard, this system had evolved into three entities, with the Staff Relations Representative Program, or SRRP, at its core. The SRRP involves representatives who act as a point of contact with RCMP management but work under the assumption that management has the final say. The case was brought by several associations that lobby on behalf of RCMP officers, although none has ever been recognized as a collective bargaining agent by management or the Government.

The majority of the Court decided that the SRRP was an unconstitutional deprivation of collective bargaining rights. In doing so, the majority clarified what section 2(d) protects:

(1) The right to join with others and form associations;
(2) The right to join with others in pursuit of other constitutional rights; and
(3) The right to join with others on equal terms the power and strength of other groups.

The Court held that in deciding whether section 2(d) of the Charter has been violated, the question is whether there has been substantial interference with the employee’s right to a “meaningful process” of collective bargaining. This “meaningful process” essentially boils down to employee choice and independence from management. The requirement of employee choice is satisfied by a process that allows employees to have effective input. Employees may do this through creating associations, dissolving existing ones, and choosing representatives who can be held accountable.

In the Court’s view, the SRRP failed because the system did not allow the employees to choose their own representative. In addition, the system was not designed to provide the employees with sufficient independence from management. As explained by the Court, “independence” means that employees have effective input into the proposals that are put forward, they are represented separate from management’s structure, and they control their own activities. The SRRP failed on this ground as well. The program was an internal scheme controlled by management, and its very raison d’être was to resist independent association and create an alternative to unionization.

While the decision represents a more generous interpretation of section 2(d) than previous decisions, it is equally important to recognize what the majority held the Charter does not protect. There is still no constitutional right to strike (though this could change when the Court releases its decision in Saskatchewan Federation of Labour v. Saskatchewan, which was heard last May), nor is there any requirement that the bargaining process be adversarial or that there be a particular labour relations scheme.

Elsewhere the Court has held that the Charter protects processes and activities, but does not guarantee outcomes. This principle was mentioned in the companion case Meredith v. Canada (Attorney General), 2015 SCC 2, where the Court found that a statute limiting wage increases for the RCMP was constitutionally valid. Generally speaking, as long as a labour relations scheme allows employees to bargain independently without substantial interference from management, it should be able to withstand a constitutional challenge.

Supreme Court of Canada Explains Constitutional Right to Collective Bargaining