INDUSTRIAL RELATIONS IN CANADA Third Edition Fiona A. E. McQuarrie Prepared by Kenda Murphy, Saint Mary’s University

Establishing Union Recognition Chapter 6 Establishing Union Recognition

Chapter 6 Objectives At the end of this chapter, you should be able to: Explain how an application for certification is handled by a labour relations board Understand the effect of certification Explain some of the special circumstances that may arise in a certification application Define and give examples of an unfair labour practice

Assessing the Certification Application The Workplace Notice When an application for certification is received by a labour relations board, in most provinces the employer and employees must be officially notified – by registered mail In some provinces, the notice must include a terminal date Determining Employee Support: the labour relations board will assess the level of employee support for the application—the employer usually provides a list of employees

Assessing the Certification Application The Representation Vote If the level of support for a certification application is above the required minimum and automatic certification is not an option, a labour relations board will usually set a date for a representation vote The representation vote is done by secret ballot and it asks the employees if they want the union to be their exclusive bargaining agent

Assessing the Certification Application The Representation Vote (cont’d) There is usually a short time between the filing of the application and the vote to prevent either side from unduly influencing the vote If the vote is successful, the Board will issue a certification order

Assessing the Certification Application The Certification Order: Legally creates the bargaining relationship between the union and the employer Makes the union the exclusive bargaining agent for the employees in the bargaining unit Compels the parties to commence bargaining for a collective agreement and to bargain in good faith If the vote is unsuccessful, there are generally time bars to prevent unions from attempting to organize

Assessing the Certification Application The Hearing At any point during the assessment of the certification application, a labour relations board may hold a hearing to collect more evidence A hearing—like a court session—is usually held if there is some dispute over the content of the application or its surrounding circumstances A hearing may result in the board: Rejecting the application Altering the bargaining unit Ordering a representation vote

Special Circumstances During Certification Certification for a Previously Unionized Workplace A certification remains in effect for as long as the parties involved wish it to and the parties themselves do not change A union may attempt to certify workers represented by another union; this is known as a raid No Canadian labour legislation explicitly forbids raiding Raids may occur on the initiative of employees who feel dissatisfied with the representation provided by their current union but there are time bars as to when raids can take place

Special Circumstances During Certification There are no legal restrictions on the number of unions that can simultaneously attempt to organize the same existing bargaining unit When the Board receives this type of certification application it is more likely to order a representation vote to ensure that the employees truly wish to change their union representation If the vote is successful, there will be a new certification order issued If the vote is unsuccessful, the time bars in subsequent applications are the same as those for previously non unionized workers

Special Circumstances During Certification Certification if the Parties Change If the union merges with one or more unions, the merged union usually applies for certification under its new name A labour relations board may order a representation vote or may alter the certification without a vote If the union ceases to exist and the workers do not wish to be represented by another union, the workers would usually file for decertification, which would make the workplace non-unionized

Special Circumstances During Certification Certification if the Parties Change (cont’d) If the employer goes out of business, the certification is considered to have lapsed; the union or employer can apply for decertification If the employer merges with another business or expands, the board must decide whether the existing certification applies to the new employees This circumstance is known as “successorship” Several jurisdictions have time bars that restrict when or if certification applications can be made during a strike or lockout

Unfair Labour Practices Definition and Legislative Philosophy An unfair labour practice is an action taken by an employer or a union, that has the effect of unduly influencing the “private decisions” made by the employee in the certification process Legislation must incorporate several different considerations The inherent balance of power in most workplaces The employer’s legal rights to free speech

Unfair Labour Practices It may be difficult to prove that an unfair labour practice has occurred and impossible to prevent these practices as the labour relations board can’t continuously monitor a workplace These allegations are usually brought against employers as the union has less ability to intimidate employees during the certification process Complaints against unions usually center around organizing activity during prohibited times and locations The effects of the behaviour of both sides can still influence the outcome of an organizing campaign

Unfair Labour Practices Legislation Most labour codes in Canada outline a set of guidelines for employer and union behaviour An employer cannot participate in or interfere with the formation, selection, or administration of a trade union An employer is free to express views against a union as long as it does not use coercion, intimidation, threats, promises, or undue influence Employers’ views will be examined in terms of context, perception, and content If employees are fired or disciplined, employers may have to prove that the action was justified

Unfair Labour Practices A labour relations board will look at whether the employer’s action resulted from an anti-union animus In some jurisdictions, anti-union animus is enough to support a declaration of an unfair labour practice A reverse onus applies in most Canadian jurisdictions which means that employers must prove that they did not have anti-union animus rather than unions proving that they did have it An employer might be found to have committed an unfair labour practice if its action had the effect of influencing employees’ behaviour, even if that was not the employer’s intent

Unfair Labour Practices Dealing with an Unfair Labour Practice Complaint If an employer, union, or employee believes that an unfair labour practice has occurred, it can file a complaint with the labour relations board The standard of proof in all cases before a labour relations board is the balance of probabilities A balance of probabilities requires sufficient evidence showing the probability that the disputed action, i.e., employee discipline, was justified

Unfair Labour Practices An Example of an Unfair Labour Practice Complaint American Airlines Inc. vs. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees Employees were forbidden to place union information in workers’ mailboxes, even though non-company material was regularly left in the boxes A company official sent all employees a letter that discussed the certification drive The company argued that the letter did not constitute any direct threat or instruction not to join the union

Unfair Labour Practices The union argued that the letter implied that negative consequences of unionization had occurred elsewhere which would occur at this organization if it became unionized The labour relations board found that the letter constituted an unfair labour practice even though there were no explicit threats and held that the ban on distributing union material in employee mailboxes was an attempt to intimidate employees and further, the company could not show the material disrupted operations

Remedies for Unfair Labour Practices A labour relations board will usually choose a remedy that will make whole the situation and can also attempt to reverse any damage caused by the organizing campaign Some remedial examples include: Reinstating employees disciplined because of anti-union animus Allowing union organizers into the workplace Allowing the union to hold information sessions in the workplace during work hours

Remedies for Unfair Labour Practices Labour boards have “wide powers to issue remedial orders” appropriate to the circumstances If an organizing campaign is in progress, the board can issue a “cease and desist” order The board may order the employees be compensated for financial losses In some jurisdictions, the board may impose a certification order

Remedies for Unfair Labour Practices The remedy in the American Airlines case: The board ordered the company to write a new letter to all employees, on company letterhead, indicating that the earlier letter had been found to be an unfair labour practice A copy of the board’s reasons for its decision was to be included with the new letter The company was directed to allow distribution of union literature in workers’ mailboxes

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