Prepared by Kenda Murphy, LL.B - KMurphy Consulting and Mercedes Watson, B.F.A., M.A., C.Med - Thought Department Inc.

Chapter 6 Establishing Union Recognition

6 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

6 The Workplace Notice   When an application for certification is received by a labour relations board, in most provinces the employer and employees must be notified of the application by registered mail   A notice of the application for certification must be posted in the workplace   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 Assessing the Certification Application

6 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 vote is a secret ballot ─ ─ It asks the employees if they want the union to be their exclusive bargaining agent ─ ─ 50% + 1 of voters must say yes for certification to be granted Assessing the Certification Application

6 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 outcome of the vote   If the vote is successful, the Board will issue a certification order Assessing the Certification Application

6 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 again right away Assessing the Certification Application

6 The Hearing   At any point during the assessment of the application for certification, a labour relations board may hold a hearing into the application   A hearing is usually held if there is a 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 Assessing the Certification Application

6 Certification for a Previously Unionized Workplace   A certification remains in effect for as long as the parties involved wish it to continue 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 if employees feel dissatisfied with the representation provided by their current union   There are time bars affecting when raids can happen Special Circumstances During Certification

6 There are no legal restrictions on the number of unions that can simultaneously attempt to organize the same existing bargaining unit A Board is more likely to order a representation vote in a raid 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 for subsequent applications are the same as those for previously non-unionized workplaces Special Circumstances During Certification

6 Certification if the Parties Change   If the union merges with other unions, the merged union usually applies for certification under its new name   A labour relations board may order a representation vote after a merger, 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 Special Circumstances During Certification

6 Certification if the Parties Change (cont’d)   If the employer goes out of business, 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 Special Circumstances During Certification

6 Unfair Labour Practices Definition and Legislative Philosophy   An unfair labour practice is an action taken by an employer or by 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 imbalance of power in most workplaces which favours the employer ─ ─ The employer’s legal rights to free speech

6 Unfair Labour Practices It may be difficult to clearly determine whether unfair labour practice (ULP) has occurred It is impossible to prevent ULPs as the labour relations board can’t continuously monitor the workplace Allegations of ULPs are usually brought against employers ULP complaints against unions usually center around organizing activity during prohibited times and locations Even if ULP behaviour stops, the effects of the behaviour can still influence the outcome of an organizing campaign

6 Unfair Labour Practices Legislation   Most labour codes in Canada have 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 during an organizing campaign, employers may have to prove that the action was justified

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

6 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 was justified

6 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

6 Unfair Labour Practices An example of unfair labour practice complaint (cont’d) The union argued that the letter implied that negative consequences of unionization had occurred elsewhere and 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 The board ruled that the ban on distributing union material in employee mailboxes was an attempt to intimidate employees, since the company could not show the material disrupted operations

6 A labour relations board will usually choose a remedy that will make whole the situation The board 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

6 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 to stop ULPs The board may order that employees be compensated for financial losses related to ULPs In some jurisdictions, the board may impose a certification order Remedies for Unfair Labour Practices

6 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 Remedies for Unfair Labour Practices

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