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.
For more information, visit our Employment and Labour blog at www.employmentandlabour.com
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