The majority of employers have non-union workforces. Consequently, when their employees become involved in a union certification drive they do not understand their rights and obligations and are usually unprepared to deal with the process. In this article we provide a brief overview of the certification process under the BC Labour Relations Code (the “Code“) and the Canada Labour Code (the “CLC“) and some practical tips on how employers should respond to an organizing drive.
Application for Certification
The first step in the unionization process is for a union to apply for certification to the BC Labour Relations Board (the “Board”) or to the Canada Industrial Relations Board (the “CIRB”), depending on whether the employer is provincially or federally regulated. In either situation, a union applying for certification, must be able to show that (a) it is a trade union; (b) the application is timely; (c) the unit which it seeks to certify is an appropriate bargaining unit; and (d) it has the required number of employees to be certified.
Typically, the first requirement is not an issue because the union making the application is an established trade union. If it is a ‘new’ union however, it must satisfy the Board/CIRB that it meets the requirements to be recognised as a trade union under the relevant legislation and regulations. Generally speaking, if there is no collective agreement in force and no union has been certified as the bargaining agent for the proposed unit, a union can apply for certification at any time. There may be issues however if the employees are already certified by another union (often referred to as a raid).
Appropriate Bargaining Unit
The Board/CIRB has sole jurisdiction to determine whether the unit proposed by a union is appropriate for collective bargaining. This determination is fact specific and the Board looks at “community of interest” (i.e., similarity in skills, interests, duties and working conditions, the physical and administrative structure of the employer, functional integration, and geography). In subsequent applications, the Board also considers the bargaining history between the parties and the practice and history of bargaining in the industry or sector. In arguing that there is no “community of interest” in the proposed unit, the employer can point to dissimilar methods of remuneration, qualifications, dissimilarity of working conditions and duties of employees.
When a union applies to organize a group of previously unorganized employees, the Board/CIRB is likely to adopt a more lenient approach.
Although the Board/CIRB has sole jurisdiction to determine the appropriateness of the bargaining unit, the employer should actively question the proposed unit and be vigilant about the proposed inclusions and exclusions. Because it is to the employer’s advantage to count as many employees as possible for the purpose of determining who has the right to vote on the union representation, the employer should seek to have employees who are on leaves of absence and part-time employees included in the count. There may be other tactical reasons why an employer would also want to exclude certain employees based on exclusions recognised in the respective labour legislation, such as management, confidentiality and management team exclusions, and arguments that certain employees such as casual and part-time employees lack continuity of employment.
Requisite number of Employees
For provincially regulated employers, if the union can satisfy the Board that at least 45% of employees in the proposed unit have signed membership application cards, the Board will order a representation vote within 10 days of the date that the union applies for certification. This vote is by secret ballot. The Board will certify the union if the majority of employees who vote, favour representation and the Board is satisfied that the proposed unit is appropriate. If the employer or union disagrees on the appropriate bargaining unit or people entitled to vote, the Board will hold the ballots from the representation vote (unopened), until that issue is resolved.
For federally regulated employers, although the CLC gives the CIRB the authority to hold a vote “in any case”, it is generally the practice of the CIRB to certify an applicant union if more than 50% of the employees are union members. Nevertheless, pursuant to the CLC, the CIRB must order a vote if 35% – 50% of the proposed bargaining unit employees have signed membership cards. If a union is unable to show that it has the support of more than 35% of the unit, the CIRB will dismiss an application outright. Where a vote is ordered, the CIRB will certify the applicant union if more than 50% of the employees who vote, favour representation and it is satisfied that the unit is appropriate.
Employers should be vigilant to ensure that the membership ‘support’ claimed by the union, is legitimate. Factors to look out for include, whether the membership card has been signed before the application for certification, whether a member has resigned prior to the application, whether the union has backdated a membership card, how ‘old’ the membership card is, and whether an employee has paid the requisite membership fee.
Unfair labour practices
Employees have the right to join a trade union and practices that could interfere with this right are prohibited by the Code as unfair labour practices. Thus, one of the key things that an employer must guard against during an organizing drive, is the possibility of committing an unfair labour practice. Examples of unfair labour practices include: making changes to the wages, working conditions or benefits of employees during the time that the union is organizing; laying off, firing or disciplining employees during an organizing drive; making promises contingent on a “no” vote or threats if the union is certified; and spying or encouraging employees to spy on the union. During this time, the approach should generally be one of “business as usual”. However, because a union organizing drive is fraught with many labour pitfalls, it is advisable for employers to seek legal counsel as soon as they become aware that an organizing drive is or might be underway.
A fact that is commonly overlooked by employers during an organizing drive is that many employees are also apprehensive and unaware of their rights. Consequently, they will often turn to the employer for guidance and answers. Employers are often asked for their opinion on the pros and cons of a union, which can easily lead to communications that are later claimed by the union to be an unfair labour practice. The safest strategy therefore, is to advise supervisors and managers to direct employees who have questions to the Board (www.lrb.bc.ca) or CIRB websites (www.cirb-ccri.gc.ca) as the case maybe. Another good source of information on organizing, is the Labour Watch website (www.labourwatch.com). Employers would also benefit from reviewing these sites. Employers are permitted to communicate their opinions, provided they do not stray into the prohibited grounds. If an employer wishes to provide answers to employee questions or share their opinions, they should seek the advice of a labour lawyer first.
Signs of an organizing drive
While many employers are surprised when they learn there is an organizing drive going on, it is almost impossible for an organizing drive to be conducted in a totally surreptitious manner. Tell tale signs include: unusual activity during break times, a sudden increase in absenteeism, circulation of union materials, strangers hanging around the property, employees taking on “informal” leadership roles, and an increase in rumours.