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

Chapter 12 Changes to the Union or the Employer

At the end of this chapter you should be able to:At the end of this chapter you should be able to:  Define successorship and understand what criteria are used to assess whether successorship has occurred or not  Describe the process of decertification  Understand what happens to certifications and collective agreements when unions or companies merge  Explain some of the ways that technological change and restructuring affect union-employer relationships Chapter 12 Objectives

Changes to the Union or the Employer What happens if a change occurs after a certification begins or a collective agreement comes into effect?What happens if a change occurs after a certification begins or a collective agreement comes into effect? What if the workplace conditions change or there is a change in the status of the parties named in the certification or collective agreement?What if the workplace conditions change or there is a change in the status of the parties named in the certification or collective agreement?

Successorship The term successorship, as used in labour legislation, relates to the status of a certification order after some material change in a business or employer occurs, when the certification order was already in place before the changeThe term successorship, as used in labour legislation, relates to the status of a certification order after some material change in a business or employer occurs, when the certification order was already in place before the change If a labour relations board determines that past and present forms of the business are sufficiently similar, then successorship is declared to existIf a labour relations board determines that past and present forms of the business are sufficiently similar, then successorship is declared to exist If successorship is found, the employer is then bound by the terms of any certification or collective agreements that existed in the earlier form of the businessIf successorship is found, the employer is then bound by the terms of any certification or collective agreements that existed in the earlier form of the business

Successorship The question of successorship can arise in a number of different situations:The question of successorship can arise in a number of different situations:  Change in the location of the business  The business itself is sold or transferred to a new owner or the purpose of the business changes or broadens  The employer transfers work to other locations or to other workers or organizations through subcontracting

Successorship What happens when there is a change?What happens when there is a change?  All employment interaction is potentially affected, thus the Labour Board will determine whether a declaration of successorship should be issued  If there is a declaration of successorship, the existing certification or collective agreement applies to the new form of the business  The new employer will also be bound if there is a labour process in the works but not yet concluded  There is no specific test to be met but the Board will look at evidence of anti-union animus and similar situations in case law

Successorship Continuity or control between previous and present form of business are criteria that are examinedContinuity or control between previous and present form of business are criteria that are examined  Continuity: deals with any form of connection between two forms of the business  Control: how much direction the former management or owners give to the new business  The issue of continuity will be important in situations of sale, lease, or transfer  Control is usually evident in a new business or moving part of the business elsewhere to avoid obligations of certification  It is not necessary to prove both

Successorship Other criteria the labour relations boards consider when determining successorship:Other criteria the labour relations boards consider when determining successorship: Direct contactDirect contact Transfer of assetsTransfer of assets IdentificationIdentification Transfer of customer listsTransfer of customer lists Transfer of accounts receivable, existing contracts, or inventoryTransfer of accounts receivable, existing contracts, or inventory Non competition pledgesNon competition pledges Key person doctrineKey person doctrine

Successorship If a unionized business is expanding to non-unionized locations or if a completely separate business entity owned by the employer is created, the board may issue a common employer declaration with the declaration of successorshipIf a unionized business is expanding to non-unionized locations or if a completely separate business entity owned by the employer is created, the board may issue a common employer declaration with the declaration of successorship A common employer declaration is usually issued when the Board determines that the employer is attempting to avoid union obligationsA common employer declaration is usually issued when the Board determines that the employer is attempting to avoid union obligations Denial of the application for successorship may result in:Denial of the application for successorship may result in:  1) impairing the union’s ability to effectively represent the workers  2) employees may choose to apply for decertification

Decertification Some jurisdictions allow employers, as well as employees or unions, to apply for decertification but most ban applications during a strike or lockoutSome jurisdictions allow employers, as well as employees or unions, to apply for decertification but most ban applications during a strike or lockout Most labour boards can issue decertification if there is evidence of fraud during the certification process or the union has abandoned its bargaining rights by not issuing notice to or commencing bargainingMost labour boards can issue decertification if there is evidence of fraud during the certification process or the union has abandoned its bargaining rights by not issuing notice to or commencing bargaining Decertification is similar in process to certification and usually requires identical levels of supportDecertification is similar in process to certification and usually requires identical levels of support The usual mandatory secret ballot vote is to ensure the majority of employees support the applicationThe usual mandatory secret ballot vote is to ensure the majority of employees support the application

Decertification Following a successful decertification vote, the board will issue an order of decertification and the union ceases to legally represent employees and any current collective agreement is no longer in forceFollowing a successful decertification vote, the board will issue an order of decertification and the union ceases to legally represent employees and any current collective agreement is no longer in force Most boards will scrutinize an employer’s decertification application to see if anti-union animus existsMost boards will scrutinize an employer’s decertification application to see if anti-union animus exists When there is a raiding attempt, a decertification application may be filed for the current union before, or at the same time as, the raiding union applies for certificationWhen there is a raiding attempt, a decertification application may be filed for the current union before, or at the same time as, the raiding union applies for certification If the raiding union is successful, a new certification order is issuedIf the raiding union is successful, a new certification order is issued

Union Mergers The merger of existing unions is a relatively recent trend in CanadaThe merger of existing unions is a relatively recent trend in Canada Mergers can arise if one union merges with another or all locals merge within a single union resulting in continuity of representation for the membersMergers can arise if one union merges with another or all locals merge within a single union resulting in continuity of representation for the members If a business merger results in two unions at the workplace, members are usually asked to vote secretly for one over the other which determines which agreement will be in effectIf a business merger results in two unions at the workplace, members are usually asked to vote secretly for one over the other which determines which agreement will be in effect The unsuccessful union will then have its certification and collective agreement cancelledThe unsuccessful union will then have its certification and collective agreement cancelled

Technological Change Changes may occur during the collective agreement due to changes in workplace itselfChanges may occur during the collective agreement due to changes in workplace itself Work restructuring occurs when technological change alters the content jobs or how work is conductedWork restructuring occurs when technological change alters the content jobs or how work is conducted All of the possible changes usually cannot be addressed in the agreement so they are dealt with by legislation or a reopener clause which allows aspects of the agreement to be renegotiated during while it is in effectAll of the possible changes usually cannot be addressed in the agreement so they are dealt with by legislation or a reopener clause which allows aspects of the agreement to be renegotiated during while it is in effect

Technological Change Five Canadian jurisdictions (federal, B.C., Manitoba, New Brunswick, and Saskatchewan) require employers to give notice of intended technological changesFive Canadian jurisdictions (federal, B.C., Manitoba, New Brunswick, and Saskatchewan) require employers to give notice of intended technological changes After the notice is issued, the parties either reopen collective bargaining or negotiate a plan for implementation of the proposed changeAfter the notice is issued, the parties either reopen collective bargaining or negotiate a plan for implementation of the proposed change For those agreements that have reopener clauses, they begin to negotiate the changes immediatelyFor those agreements that have reopener clauses, they begin to negotiate the changes immediately

Workplace Restructuring Changing economic conditions have led to another type of change during the life of a collective agreement: workplace restructuringChanging economic conditions have led to another type of change during the life of a collective agreement: workplace restructuring This includes:This includes:  Downsizing of the workforce  Work being partially or completely shifted to other locations, companies, or countries  Increased industry competitiveness leading to changes in working conditions or redesigned work

Workplace Restructuring Most collective agreements layoffs or termination, but directing and organizing the workforce is usually part of management rights which does not require union consultation unless specifically outlined in the agreementMost collective agreements layoffs or termination, but directing and organizing the workforce is usually part of management rights which does not require union consultation unless specifically outlined in the agreement While it is not clear that employers are compelled to include the union in the restructuring, care must be taken not to bypass the union’s role as workers’ representativeWhile it is not clear that employers are compelled to include the union in the restructuring, care must be taken not to bypass the union’s role as workers’ representative Labour Board cases suggest there are specific concerns that jointly need to be addressed during restructuringLabour Board cases suggest there are specific concerns that jointly need to be addressed during restructuring

Workplace Restructuring A study of the steelmaking industry suggests that establishing a strong internal and external relationship with management prior to restructuring, may strengthen the union’s ability to represent its membership more effectively during the processA study of the steelmaking industry suggests that establishing a strong internal and external relationship with management prior to restructuring, may strengthen the union’s ability to represent its membership more effectively during the process A study of the Ontario supermarket industry suggests that unions should attempt to ensure the interests of all members are equally represented and defendedA study of the Ontario supermarket industry suggests that unions should attempt to ensure the interests of all members are equally represented and defended The union’s duty of fair representation would suggest that the union should be motivated to ensure restructuring does not unduly harm one group of members while protecting or benefiting another groupThe union’s duty of fair representation would suggest that the union should be motivated to ensure restructuring does not unduly harm one group of members while protecting or benefiting another group

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