Canada: It's OPEN Season In The Construction Industry – Tips For Employers To Avoid The Pitfalls Of The 2019 "Open Period"

Last Updated: March 8 2019
Article by Michael MacLellan

Ontario's construction industry has a two-month "open period" every three years, where trade unions will attempt to raid each other's members through Displacement Applications, and members who have grown weary of their representation will decertify from their current bargaining agent unions via Termination Applications.  March 1, 2019 through April 30, 2019 will be the next open period, and it could be a doozy!  CCPartners has blogged on these processes in the past, most recently here.  In this week's blog, we will take a look at the rights and responsibilities of employers during the open period, and common traps to avoid.

Employer Rights and Responsibilities

An underlying and inescapable principle during the open period is that applications can only be initiated and supported by a new union seeking displacement, or employees in the bargaining unit seeking to terminate their union relationship altogether.  An employer has no right to initiate an application, but it can still secure a seat at the table to protect its interests.

An employer will receive a copy of the filed application, and although, unlike most applications at the Labour Board, the employer is not a respondent, it MUST at minimum file a list of employees working in the bargaining unit on the application date.  And in order to have any say in the application process, the employer MUST file an Intervention within two days of receiving the application.  It is generally recommended that the employer intervene in a displacement or termination application during the open period, in order to be able to present its case in relation to a number of common "status disputes" which affects who is allowed to cast a ballot in the application.  For example:

  • Is the individual in dispute an employee of the employer? If so, they will be entitled to cast a ballot.If however they were an employee of a sub-contractor, they would be rightly excluded from voting.
  • Does the individual in dispute exercise managerial functions? If so, they are not a bargaining unit employee and are excluded from voting.
  • Did the individual in dispute perform work in the bargaining unit for the majority of their working time on the application date? For example, if in a bargaining unit of construction labourers the employee was working as an electrician for the majority of their day, they are not entitled to cast a ballot.

An intervening employer is also allowed to have its say in relation to the actual conduct of the vote.  For example, if an employer may have eligible employees at multiple job sites they would have the ability to object to a union proposing that the voting station be located at only one of those sites, rather than a central or neutral location where all eligible workers are more likely to attend to cast a ballot.

Finally, and perhaps most importantly, by intervening in a displacement or termination application, the employer preserves their right to present evidence, and to challenge the evidence of the other parties.  This is particularly important during termination applications where the applicant may be represented by a single employee who has not retained a lawyer.

Conduct For Employers to Avoid

It may seem obvious that employer cannot initiate displacement and termination applications, and you would think it is easy enough to comply with that rule, but each open period brings decisions from the Ontario Labour Relations Board dismissing applications on the basis that the employer "initiated" the application.  As you will see, the term "initiated" is given a broad definition.

In almost every case, the incumbent union will allege that an application to displace to terminate has been initiated by the employer.  In fact, the Labour Board's Form for filing a response to a termination application literally asks the union to simply check a box if they seek the dismissal the application on the basis of employer "initiation", threats, or coercion.  So what does it really mean for an employer to "initiate" the application?

Actually filing the application, or circulating the petition that precedes the application, is not necessary for the Board to find employer initiation.  The Labour Board has consistently stated that if an employer's conduct amounted to "significant or influential involvement" giving rise to the application, or if the application is "founded in the conduct of the employer", that will be sufficient reason to dismiss the application for employer initiation.

Examples of some conduct that the Board has relied upon to dismiss termination applications due to employer "initiation" include:

  • Hiring an employee for purposes of that employee filing a termination application;
  • Giving an employee or new union unusual access or permission to meet with co-workers for purposes of obtaining support for an application;
  • Allowing an employee to use the employer's office or meeting spaces for purposes of gaining support;
  • Allowing an employee to use the employer's office equipment or supplies to prepare or file an application;
  • Discussing possible displacement or decertification with an employee.

It is particularly important to understand that while the union alleging employer initiation has the onus to prove its allegations, the Labour Board has said that it will make findings against an employer on the basis of only circumstantial evidence as it sees fit.

So what are some steps that employers can take to ensure that they stay on-side the Labour Relations Act, and to avoid a finding that they have "initiated" an application during the open period?  Here are some common suggestions:

  • Do not allow a raiding union access to employees on the work site or during work hours.Understand that under s.77 of the Act, there is no right of any union to access workers during work hours on the job site for purposes of persuading them to decertify or displace their current union.
  • Do not deviate from standard practices in respect of employee meetings, breaks, and access to employer offices and equipment.
  • Be sure that all decisions regarding hiring, termination, layoff, discipline, and even compensation (like raises and bonuses) are justifiable.
  • Keep clear, accurate, and up to date records of who is working, where they are working, and what they are doing.This will also assist in fulfilling your responsibilities and rights to present evidence in relation to voter eligibility.
  • Be cautious in your communication with employees.If you are approached by an employee asking about their rights during the open period, tell them that you do not want to give them any advice.It would not be inappropriate to suggest that they can research their rights online or obtain legal advice.A Google search will lead employees looking to understand their rights during the open period to the Ontario Labour Relations Board website, and to www.labourwatch.com, where they can read about the processes for displacement and termination applications.
  • Do not retain a lawyer to represent employees in an application, and do not give employees money with which to retain a lawyer.

Of course not even reading this blog can give you the same kind of protection as retaining an experienced lawyer to represent your business.  The lawyers at CCPartners have extensive experience representing employers in the construction industry, which becomes even more important during the open period. 

Enjoy the next two months!

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.

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Michael MacLellan
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