INDUSTRIAL RELATIONS IN CANADA Fiona A. E. McQuarrie Prepared by: Tom Barrett

Establishing Union Recognition C h a p t e r 6

Opening Vignette: Failed union drive leads to charges Edmonton’s largest casino operator has been charged with unfair labour practices in connection with the suspension of four employees after a failed union drive The Canadian Union of Public Employees applied for certification of 354 employees at two casinos owned by Alberta Bingo Supplies

Opening Vignette: Failed union drive leads to charges The union says at least four employees were dismissed after the representation vote, which failed by six votes The company says the four employees were suspended because they are suspected of vandalism in connection with the organizing campaign; “They were the leaders of the union sign-up movement,” said a company spokesman, “They are suspect until such time as we find out who is responsible”

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 –An official notice is sent by registered mail and must be posted by the employer –In some provinces, the notice must include a terminal date, the deadline by which submissions must be received for consideration by the board

Assessing the Certification Application Determining Employee Support –After determining the appropriate bargaining unit, a labour relations board will assess the level of employee support for the application –This becomes complicated if there has been a delay between the collection of signatures and the submission of the certification application –The board may require additional documentation

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 – a vote held to determine whether employees wish to be represented by a union –The required level of support varies from jurisdiction to jurisdiction See Table 6-1 on next slide

Assessing the Certification Application The Representation Vote: Some Examples Required Level of Support for Representation Vote to Occur Required Level of Support for Representation Vote to Succeed Federal Between 35% and 50% of employees in the proposed bargaining unit Majority of those voting Alberta At least 40% of employees in the proposed bargaining unit Majority of those voting Nova Scotia 40% of employees in proposed bargaining unit Majority of votes cast Quebec Between 35% and 50% of employees in proposed bargaining unit Absolute majority vote of employees in proposed bargaining unit.

Assessing the Certification Application The Representation Vote –Labour relations boards generally attempt to minimize the time between the filing of a certification application and the representation vote –Excessive delays may allow either side to unduly influence the vote –The representation vote is a secret ballot, conducted at the workplace by the board –The ballot asks the employees if they want the union to be their exclusive bargaining agent

Assessing the Certification Application The Representation Vote –If the vote is successful and no extraordinary circumstances arise, the board will issue a certification order –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 Compels the parties to bargain in good faith

Assessing the Certification Application –70 percent of certification applications result in a union being legally recognized as the employees’ bargaining agent –Approximately 18 percent of applications are withdrawn before the certification process is completed –If a representation vote fails, most Canadian jurisdictions ban other certification applications for a set period –Most Canadian labour codes set limits, known as time bars, that restrict the time within which organizing efforts can take place. The time bar that applies after a previous certification attempt has failed is known as an application bar

Assessing the Certification Application The Hearing –At any point during the assessment of the certification application, a labour relations board may hold a hearing –A hearing is usually held if there is some dispute over the content of the application or its surrounding circumstances

Assessing the Certification Application The Hearing (continued) –A hearing is conducted in a manner similar to a court session –Following a hearing, the board may: Reject the application Alter the bargaining unit Order a representation vote –The board may impose remedies; in most jurisdictions, the board may declare a certification even if the required minimum level of support is not present

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 –Some unions do not raid on principle, others raid regularly –No Canadian labour legislation explicitly forbids raiding –Raids can occur when employees feel dissatisfied with the representation provided by their current union; a raid may begin on the initiative of either the employees or a union

Special Circumstances During Certification Certification for a Previously Unionized Workplace –Labour codes impose time bars that restrict when a raid can take place –They generally ban organizing for a certain time after a certification order has been granted to a previously non-unionized workplace –There are certain periods during the term of an existing collective agreement when a certification application can be submitted; these are known as open periods

Special Circumstances During Certification Some examples:

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 A certification application covering a unionized workplace is assessed by a labour relations board on the same criteria that would be used to assess any other type of certification application A board is more likely to order a representation vote in such a situation to ensure that the employees truly wish to change unions

Special Circumstances During Certification If the representation vote is successful or if a certification order is issued without a vote, a new certification order is issued to replace the previous certification If the representation vote fails or if the certification application is rejected for other reasons, the time bars on subsequent applications are the same as those that would apply if the workers had previously not been unionized

Special Circumstances During Certification Certification if the Parties Change –If the union merges with one or more other unions, the merged union usually applies for certification under its new name –A labour relations board may order a representation vote in this case 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 –Decertification cancels the existing certification and makes the workplace non-union

Special Circumstances During Certification Certification if the Parties Change –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 to expand the existing certification order or require a new certification application –This circumstance is known as successorship

Special Circumstances During Certification Certification Applications During a Strike or Lockout –Several Canadian jurisdictions have time bars that restrict when or if certification applications can be made during a strike or lockout –In some jurisdictions, an application for certification cannot be made if an illegal strike has taken place in support of the certification attempt –In some jurisdictions, a certification application cannot take place during a legal strike or lockout

Special Circumstances During Certification

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

Special Circumstances During Certification It may be difficult to establish whether an employer’s actions are legitimate or intended to intimidate employees It is impossible to prevent unfair labour practices – a labour relations board can’t continuously monitor a workplace Even if a complaint is upheld, the effects of the behaviour can still influence the outcome of an organizing campaign

Unfair Labour Practices Unfair labour practices tend to occur most often during the certification process It is more common for complaints to be brought against employers because the union has less power to intimidate employees Employer complaints about unions’ unfair labour practices during certification attempts usually focus on organizing activity during prohibited times or in prohibited locations

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; nor can an employer participate in the representation of employees by a union or contribute financial or other support –An employer is free to express views for or against the union so long as the employer does not use coercion, intimidation, threats, promises, or undue influence

Unfair Labour Practices It is often very difficult to determine when an employer’s comments constitute an unfair labour practice The context and perception of the expressed views, as well as their content, need to be considered Labour codes do not deny the employer’s right to discipline and fire employees; however, if such actions take place during a certification attempt, the employer may need to prove that they were justified or necessary

Unfair Labour Practices A labour relations board will look at whether the employer’s action resulted from an anti-union animus – whether the employer’s opposition to the union manifested itself in actions that harmed employees who were active in the union 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 – the employer must prove its actions were not motivated by anti-union animus 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 –This is less rigorous than the standard of “beyond a reasonable doubt” –Still requires sufficient evidence showing the probability that the disputed action 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 senior company official held “rap sessions” that employees were compelled to attend –This official sent all employees a letter that discussed the certification drive

Unfair Labour Practices (cont’d) –The company argued that the letter did not contain any direct threats or instructions not to join the union –The union argued that the letter implied that there were negative consequences of unionization that had occurred elsewhere and that would occur at this organization

Unfair Labour Practices An Example of an Unfair Labour Practice Complaint –The labour relations board found the letter constituted an unfair labour practice—even statements that are not explicit threats can effectively be threats –The board held that the ban on distribution of union material in workers’ mailboxes was an attempt to intimidate employees

Unfair Labour Practices (cont’d) The board noted that the company had not enforced its policy against non-company material in the mailboxes The company had not demonstrated that the union material disrupted operations –While the board did not specifically address the rap sessions, these could have been interpreted as intimidation because employees were compelled to attend

Unfair Labour Practices Remedies for Unfair Labour Practices –A labour relations board will usually choose a remedy that will make whole the situation – i.e., attempt to put the parties to the complaint in the same situation they were in before the unfair labour practice occurred –Examples: Reimbursing a union for extra organizing expenses Reinstating employees disciplined because of anti-union animus

Unfair Labour Practices –Make-whole remedies can also attempt to reverse any damage an unfair labour practice has caused an organizing campaign –Examples: Allowing union organizers into the workplace Allowing employees or unions to use company bulletin boards Allowing the union to hold information meetings in the workplace during working hours

Unfair Labour Practices Remedies for Unfair Labour Practices –Making whole can be difficult; 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 –In extreme cases, the board may order a new representation vote –In some jurisdictions, the board may impose a certification order

Unfair Labour Practices Remedies for Unfair Labour Practices The remedy in the American Airlines case: –The board ordered the company to write a 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 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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