Let's say you've just dispatched your crew for the morning and someone you've never met comes up to you, calls you by name, hands you a package and says "don't shoot the messenger". Or maybe there's just a lengthy fax in your inbox that wasn't there a little while ago. You take a look and what you have in your hands is a copy of a union's application to be certified as the bargaining agent for the employees of your construction company. The good news is that you have an opportunity to respond and resist the application. The bad news is that the deadline for your first step is only 48 hours away.
This blog will provide a construction industry employer in Ontario with a basic understanding of how to make your first response to an application for certification.
The application itself will be the part of the package included as Form A-71. Locate Form A-71 and make sure to identify:
- The specific union making the application [See item 1 on the Form];
- Application date [Item 4];
- The work sites that the union claims were operating on the application date [Item 6];
- The proposed bargaining unit description [Item 7]; and,
- The number of workers the union claims were working in the bargaining unit on the application date [Item 9].
You will also want to find out whether the union is seeking a card-based certification by reviewing the selection made just prior to item 1 on the Form. In the construction industry only, a union can become certified bargaining agent only by proving that they have support of at least 55% of the people working in the proposed bargaining unit on the application date. The support is established by providing the Labour Board with membership evidence, usually in the form of cards signed by employees in the bargaining unit. When a union makes a card-based application, the Board takes a point in time snapshot approach to determine the facts as of the application date.
Your next step will be to provide your own correct information on the Response Form A-72. To do this, you will need to check your records, including time sheets, supervisor notes and log books, etc., and determine exactly who was working in the bargaining unit on the application date, where they were working, and what work they were performing. It may be the case that your company only hired subcontractors rather than direct employees on the application date, or that your employees were only performing maintenance rather than construction that day, and therefore you will have had 0 employees in the bargaining unit on the application date. On the other hand, perhaps you had many more employees working in the bargaining unit on the application date than the union was aware of, and so the union will not possibly have 55% support. Either way, you will need to disclose:
- Addresses for all work sites on which your employees were performing work in the bargaining unit on the application date [Item 3 on Form A-72];
- The number of employees working on all work sites in the bargaining unit on the application date [Item 5]; and,
- The names of each employee working in the bargaining unit on the application date [Schedule A].
Review this information with your legal counsel as soon as possible to ensure that you get your Response filed with the Labour Board within 48 hours of receiving it.
Once this is done, you will officially have your foot in the door to resist the union's application. In the coming days and weeks you will need to discuss with your legal counsel, and provide documents to support your evidence of who was at work in the bargaining unit on the application date, and what work they were performing.
During this process you should also know what to say to your employees. If I may steal from the message that runs on screen before your feature presentation at the local movie theatre, Silence is Golden. Employees will have the opportunity to review the application once it is posted in the workplace (this is a requirement) and you can simply refer them to the posted material if they have questions. Under no circumstances should you ever make any threats or accusations, or interrogate your employees to determine who is responsible for supporting the union. You will likely find yourself facing an unfair labour practice complaint for interfering in the certification application, and you may even have your company certified automatically by the Board as a result.
The prompt 48 hour deadline to make a response comes as a shock to many employers in the construction industry. And to be certain, this article is only providing you with the first steps for how to be prepared to make a response. But by following these basic steps and promptly retaining legal counsel, you will put yourself and your company in the best possible position to respond to the application.
CCPartners has a team of labour relations professions with an extensive background and experience in tackling union certification issues and procedures unique to the construction industry, and regularly appear as management-side counsel at the Ontario Labour Relations Board.
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.