Canada: How To LOSE A Union Application For Certification

Last Updated: February 28 2019
Article by Jeremy Schwartz

The prospect of becoming unionized is unwelcome for many employers. Along with increased costs and workplace rules, an us-vs-them mentality often creeps in making it difficult to manage your business. In addition to commonplace restrictions on hiring and subcontracting, construction employers often become bound to terms negotiated by other parties and are forced to give up competing for jobs with non-union owners, general contractors and developers. Although some niche and larger companies find new customers and scaling opportunities, for many, becoming unionized increases the cost of doing business and lowers overall efficiency.

You have only two days to file a detailed and comprehensive response when you receive an application for certification. 48-hours is barely enough time to gather required information, to make key strategic and legal decisions, and to file a timely response at the Ontario Labour Relations Board (the "Board"). If you're late, the Board will most likely process the application without your input solely based on the union's application (and in construction applications, where unions can be certified without a vote, that means you lose in a matter of days).

Notwithstanding this extremely brief response window, and despite the fundamental and lasting impact of unionization, in our experience most employers know little about the way unions organize, and even less about the law and how applications for certification unfold at the Board.

Your Application LOSING Checklist

The following is a checklist, drawn from experience as well as recent and landmark Board decisions, to help ensure you RECEIVE and LOSE a union application for certification. This is a tongue-in-cheek list of what NOT to do (don't try this at home):

WHEN THE APPLICATION IS DELIVERED

  • Wait a day or two to open it: The Board rarely permits extensions to the statutory two-day deadline to file a response to the application taking certain positions, and never without compelling reasons for the delay. But rules are for those 'other people'. Just explain that you were really very busy and say "please" when you ask for an extension. No doubt the Board will grant it and you won't lose by default without recourse or right of appeal.
  • Don't call your labour lawyer immediately: The application and response forms are straightforward and written in plain English. It won't take much time to gather the information you need and make key strategic and legal decisions. There are no legal nuances here. Lawyers who specialize in labour relations just make this stuff sound complicated so they can charge more. There must be a how-to-video somewhere online. In any event, if you miss something or make a mistake in the response, the union will be more than happy to consent to prejudicial amendments later.
  • Flood the list: Add as many employee names to the list of employees in your response as possible, regardless what work they performed and where they were working. On second thought, make up employee names and add them to the list too. What consequences could there possibly be for lying to the Board? Plus, you can always strike their names off later – and striking out large swaths of employee names won't be viewed as an abuse of process and certainly won't irreparably destroy your credibility.
  • Don't verify before you file: You spoke to your VP and she told you where the employees were and what work they did. Why waste time calling on-site supervisors or checking logs and timesheets to confirm? Plans never change and your VP is never wrong. And be sure to misspell as many names as possible on the list included with your response and refer to people by their nicknames – every knows who you meant.
  • Tell employees to withdraw their support: After you get the application, you're going to feel betrayed and frustrated. Explain to employees, one-on-one, the error of their ways and how bad the union would be for them. Then tell them to write the union asking for their cards back and insist they make submissions to the Board against the union.

What's that? You say you received a construction industry card-check application (where post-application changes in support are basically irrelevant)? Do it anyways on principle and to make yourself feel better.Plus, on a scale of 1 to 10, with 10 being the most egregious unfair labour practice and 1 being the least, this would only be about a 6.8.

  • Gather as little evidence as possible: You might not like what you find. So only gather the bare minimum of records to prove your positions and omit the rest. And don't produce relevant records that are bad for you. It's only illegal if you get caught.
  • Be vague and cagey whenever possible: It's best to make unparticularized, bald statements of fact in your status submissions, and to avoid taking any firm positions. You need to leave your options open (especially since you're not so sure your VP gave you the right information for the response). No one follows the Board's rules that require parties to plead sufficient material facts, prohibit parties from taking new positions late, or preclude resiling from admissions and agreements.

BEFORE THE APPLICATION COMES (why wait to shoot yourself in the foot?)

  • Don't educate yourself: People who say, "knowledge is power," are just trying to sell you something. The 'law' is just rules based on common sense – right? Besides, unions never apply unless they are certain they already have enough support to win. So, if they file you've already lost. Why bother preparing or taking steps to prevent it?
  • Avoid reviewing industry collective agreements and adjusting: There's no point comparing. You don't need to be competitive in your industry, and employees don't care about things like terms and conditions, wages, benefits and saving for retirement. You're a fantastic company and your employees love you for you.
  • Don't inspire loyalty or reward hard work: Labour is just a commodity. I know most collective agreements provide zero performance-based bonuses, profit sharing or merit-based wage increases, and even though most construction collective agreements don't recognize seniority, that's no reason to consider offering those and other perks to your steady and productive employees. When the union starts campaigning, just remind employees about that barbeque you had that time.
  • Ignore employment standards and health and safety laws: The ESA and OHSA aren't strict requirements – they're just aspirational wish lists. Certainly, no employee has ever approached a union for help when their employer wasn't paying overtime properly, routinely classified employees as independent contractors to lower overhead, or hadn't enough PPE to go around. If that's your business, best to bury your head in the sand and hope no one notices (or gets hurt). Fixing those issues can be expensive, and those are DEFINITELY NOT lightning-rods that attract union support.
  • Don't employ professional managers and supervisors: "Work-life balance" and "respectful workplace" are just buzzwords for Millennials. Your employees are lucky to have a job at all. Employees who feel mistreated and without internal recourse never succumb to union organizers' promises to fight for them. Of course, the best way to run an efficient workplace is to have old-school supervisors who know how to crack the whip. I know you implemented a violence and harassment policy when that Ministry of Labour Inspector kept haranguing you (but we both know you didn't really mean it).
  • Fear is the best weapon: If you learn a union is trying to organize your workforce, hold a mandatory meeting during working hours and warn your employees the company would go under and they would all be out of a job if the union got in. Be sure to ask every employee if they've signed a card and don't forget to lay off key union supporters to stop the spread. The Labour Relations Act has only a few prohibitions against that sort of thing, and come to think of it, what's so "unfair" about an unfair labour practice? Just because the Board remedially certifies every employer who knowingly terminates an inside union organizer during an organizing drive, that doesn't mean they would in your case. It really is the best way to nip the campaign in the bud.

Scratch all that.Best to say nothing at all to employees for fear of crossing the line.The union is making all sorts of promises, but organizers always provide a fair, balanced and objective view. No need to set the record straight.

The above was obviously intended as a tongue-in-cheek checklist of what we would recommend employers not-do. While we are experienced and passionate advocates for our clients' rights in litigation at the Board (and while it's hard to say this without it sounding like a sales pitch), planning and prevention are often your only defence.

Our experienced, labour relations lawyers regularly help employers to avoid and respond effectively and lawfully to union organizing. We help our clients identify hot-button issues, train managers and supervisors respond while avoiding costly (and unlawful) unfair labour practices, and we develop plans that can be activated with confidence should a drive commence or an application arrive.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jeremy Schwartz
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions