Unit 3 - Lesson 8 Chapter 6

Question 1

When an application for certification is received by a labour relations board,

Answer 1

in most Canadian jurisdictions the labour relations board must officially inform the employer and the employees that it has received the application. The board sends an official notice to the employer by registered mail (to ensure a record of receipt), along with a similar notice to the employees.

Question 2

The employer must post the notice of the application for certification in the workplace.

Answer 2

The notice will name the union that is applying for certification, describe the union’s proposed bargaining unit, indicate that interested parties can make submissions about the application, and specify where such submis- sions should be directed

Question 3

The process of assessing levels of employee support becomes complicated if there has been

Answer 3

a delay between the collection of signatures and the submission of the certification application. During that delay, employees may have left the organization or may have moved to different positions within the organization.

Question 4

The board must be able to verify that the employees who have indicated their support for the application are

Answer 4

currently employed by the organization, and are employed in positions that are part of the proposed bargaining unit.

Question 5

Labour relations boards generally attempt to minimize the time between when a certification application is filed and when a representation vote is held

Answer 5

because of the possibility that activities in the workplace during that time may unduly influence the employees’ voting intentions. Both unions and employers may take advantage of any excessive delays before the vote to attempt to persuade potential voters to support or oppose the union.

Question 6

For the representation vote to be successful—that is, for the union to be recognized as the employees’ bargaining agent—

Answer 6

a majority must vote in favour of union representation. A majority in this situation is defined as 50 percent plus 1 of votes. For example, if there are 100 voters participating in the election, at least 51 must vote “yes” for the representation vote to be successful.

Question 7

If a representation vote is successful and no other extraordinary circumstances arise, such as evidence of undue influence on the employees, a labour relations board will then

Answer 7

issue a certification order.

Question 8

Certification also compels the parties to bargain

Answer 8

in good faith, which essentially means that the parties are expected to bargain honestly and with the intent of completing a collective agreement

Question 9

It should be noted that certification applications can be withdrawn before the certification process is complete. Withdrawals are made for a variety of reasons.

Answer 9

A labour relations board and a union may disagree over the structure of an appropriate bargaining unit, and a labour relations board may impose a different definition of the bargaining unit than that proposed by the union. If the union feels that it has little chance of winning a representation vote in the bargaining unit defined by the labour relations board, it may decide that its resources could be used more productively elsewhere, and withdraw its application.

Question 10

If a representation vote fails

Answer 10

the labour legislation in most Canadian jurisdictions imposes a period after the failed vote during which other certification applications are banned. The rationale for this restriction is that the certification process is often time-consuming and divisive

Question 11

In most Canadian jurisdictions, a union cannot withdraw a certification application for non-technical reasons as a way of avoiding the application bar.

Answer 11

This condition exists so that unions are not tempted to salvage an unsuccessful organizing campaign by terminating a certification application and immediately reapplying to represent the same group of workers.

Question 12

However, in most jurisdictions, a labour relations board is able to waive the application bar if

Answer 12

the union made some inadvertent error in its application, such as miscalculating the size of the proposed bargaining unit.

Question 13

At any point during the assessment of the application for certification, a labour relations board has the option of holding a hearing

Answer 13

to collect more evidence relating to the application. This option is usually exercised if there are disputes over the content of the application or its surrounding circumstances

Question 14

if an application is made for a very small bargaining unit within a very large company

Answer 14

the labour relations board may hold a hearing to investigate why the union is applying for this particular bargaining unit and to determine the appropriateness of the proposed bargaining unit

Question 15

If there is a dispute between the union and employer over the composition of the proposed bargaining unit

Answer 15

the labour relations board may want to hold a hearing to investigate both parties’ reasons for their positions.

Question 16

A certification is, in a sense, timeless.

Answer 16

It remains in effect for as long as the parties involved wish it to continue, and as long as the parties themselves do not change. Sometimes, however, a certification is sought for employees who are covered by an existing certification order and already have a union in place as their exclusive bargaining agent.

Question 17

some Canadian labour federations—the Canadian Labour Congress, for example—expect their member unions not to undertake raids.

Answer 17

This expectation is based on the belief that while raids may increase the membership of individual unions, they damage the strength of the labour movement as a whole by causing dissent among unions and by reducing the ability of smaller unions to effectively represent their membership.
This belief also encompasses the view that union membership should be increased by recruiting unorganized workers, rather than by persuading already unionized workers to change the union they belong to.

Question 18

There are unions, however, that conduct raids regularly.

Answer 18

Some unions raid because they feel they could do a better job of representing the workers in question than the currently certified union. Others prefer to recruit unionized workers because these workers already have union experience, and thus the organizing campaign may not have to be as aggressive or as extensive as an organizing campaign for workers with no union experience; consequently, less cost and effort is involved in the organizing attempt.

Question 19

Raids are also undertaken by unions that see their traditional membership base eroding and want to bring in more members in order to survive

Answer 19

Some public sector unions and unions in the manufacturing and processing sectors of the economy have raided quite vigorously, to replace decreasing membership caused by cutbacks in public sector and primary sector employment.

Question 20

The ability of unions to conduct raids is facilitated by the fact that no Canadian labour legislation explicitly forbids raiding;

Answer 20

such a restriction, after all, would interfere with the right of employees to freely choose their workplace representative.

Question 21

There is also no legal requirement for workers to be represented by a union directly associated with their type of employment, which means that unions that choose to conduct raids do not have to confine themselves to industries or occupations similar to those already represented.

Answer 21

This leads to situations such as Unifor (the merged Canadian Auto Workers union and and the Communication, Energy and Paperworkers Union) representing hospital workers and food production workers.

Question 22

If employees do not feel that their union is accurately or competently representing their inter- ests, they may contact a union or unions that they think would be more appropriate representatives and encourage those unions to commence an organizing campaign.

Answer 22

Thus, a raid may begin on the initiative of either the employees or a union.

Question 23

Generally, labour codes ban organizing for a certain time after a certification order has been granted for a previously non-unionized workplace

Answer 23

The purpose of this restriction is to give newly certified unions a chance to represent their members without the threat of a larger or more experienced union poised for a takeover. This protection is particularly important for new unions, which may be run by individuals with little experience in such matters as contract negoti- ation.

Question 24

Another time bar that exists in most jurisdictions involves restrictions on when an application can be made to represent workers already covered by a collective agreement.

Answer 24

Such certification applications can be made only at certain times during the term of the existing collective agreement. The terms of these open periods vary by jurisdiction

Question 25

Generally, a certification application can be made only at specified times during the term of a multi-year agree- ment, or within a certain period toward the end of the term of a single-year agreement.

Answer 25

The intent of these restrictions is to ensure stability in the collective bargaining process, so that union and management representatives do not have to deal with a raiding attempt while trying to negotiate a new collective agreement. These terms are also intended to allow the negotiated agreement to run its course without the interference or distraction caused by a competing union’s attempt to organize the workers.

Question 26

If the union merges with another union

Answer 26

the usual procedure is for the merged union to apply for certification under its new name to represent the same bargaining unit. In this situation, a labour relations board may feel it is appropriate to conduct a representation vote, to confirm that all the members of the former union or unions wish to be represented by the merged union. This procedure is not required, however, and generally the board can alter the certification order without a vote being held.

Question 27

If the employer goes out of business

Answer 27

the certification is considered to have lapsed, as one of the parties named in the certification order no longer exists and the workers are no longer employees of the named employer. The union or the employer can apply for decertification if they wish to have a legally binding declaration that the union-employer relationship has ended.

Question 28

If, however, the employer merges with another business or expands its operations

Answer 28

here is a question as to whether the existing certification order should automatically include the new employees whose positions were not part of the bargaining unit before the expansion or merger. The labour relations board will have to decide whether to expand the existing certification order or to require a new certification application before the new workers can be unionized.

Question 29

In some Canadian jurisdictions, an application for certification cannot be made if an illegal strike has taken place in support of the certification attempt

Answer 29

This provision, where it exists, embodies the philosophy that certification, not striking, is the process through which employees should attempt to promote change in the workplace

Question 30

In some Canadian jurisdictions, a certification application cannot take place during a legal strike or lockout

Answer 30

Such an application would usually come from another union that is attempting to represent the workers who are on strike or locked out. An application during this time might be perceived as undue interference with the collective bargaining process or as an attempt by one union to exploit the weak status of another union

Question 31

Although unfair labour practices can occur at any point in the employer-employee relationship, they tend to occur

Answer 31

more often during the certification process than at any other time. This is because employees are vulnerable prior to certification, since they are not yet protected by a collective agreement

Question 32

In a study of 429 Canadian employers who had had organizing campaigns in their workplaces

Answer 32

12 percent of the employers that were surveyed admitted to having undertaken at least one action during the campaign that would be considered an unfair labour practice. Comparisons to other data indicated that the respondents appeared to be understating the extent of these activities. By far, the most common forms of these actions were downsizing, laying off, or dismissing employees

Question 33

Although unions can also be charged with committing unfair labour practices during certification, it is more common for complaints to be brought against employers

Answer 33

This is because the union has much less power than the employer does to intimidate employees.

Question 34

unlike the employer, the union does not have the ability to fire or discipline employees for disobeying its suggestions

Answer 34

; thus, a union’s coercion of employees is much less frequent and less compelling than an employer’s coercion. Employer complaints about unions’ unfair labour practices during certification attempts usually focus on union organizing activity that has taken place during prohibited times (e.g. working hours) or in prohibited locations (e.g. the employer’s premises)

Question 35

In an attempt to balance the rights of employers and employees in the workplace and to restrict the occurrence of unfair labour practices, most labour codes in Canada contain guidelines for employer and union behaviour during organizing campaigns

Answer 35

The first guideline, states that an employer cannot participate in or interfere with the formation, selection, or administration of a trade union. The second guideline governing employer/union behaviour in most Canadian labour codes is that 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 to pressure employees into acting against their personal beliefs.

Question 36

The language in Canadian labour law does not forbid the employer from carrying out actions such as employee discipline and termination of employment in the course of operating the business during an organizing campaign.

Answer 36

However, if such actions take place during an organizing campaign, the employer may need to prove that they were justified or necessary. If a complaint of an unfair labour practice is filed, a labour relations board will examine both the motive behind the alleged unfair labour practice and the effect of the alleged practice.

Question 37

In some Canadian jurisdictions, anti-union animus, even if it exists in combination with other reasons for employee discipline,

Answer 37

is in itself sufficient to support a declaration of an unfair labour practice. That is, even if an employee’s performance record justifies discipline, the employer might still be judged to have committed an unfair labour practice if the employee was disciplined because of an anti-union animus

Question 38

reverse onus applies in most Canadian jurisdictions when complaints of unfair labour practices are assessed.

Answer 38

This means that the employer is the party that must prove that its actions were not motivated by anti-union animus.

Question 39

in distributing a handout contain- ing information about union-related problems in other organizations

Answer 39

the employer may intend to contribute to employees making an informed decision when they participate in a representation vote. However, employees could perceive this action as an implied threat that similar problems will occur in their workplace if the employees were to unionize. Thus, employers need to be aware of both the content and the potential effect of their actions, since actions may be perceived differently than they are intended.

Question 40

If an employer, a union, or an employee believes that an unfair labour practice has occurred

Answer 40

they can file a complaint with the appropriate labour relations board. The stan- dard of proof that is used to determine the outcome of a complaint in all cases before a labour relations board is the balance of probabilities

Question 41

if an employee who was active in an organizing campaign was fired, the employer would have to meet the “balance of probabilities” standard by showing

Answer 41

such evidence as the employee’s poor work record and prior sufficient warnings to the employee about their poor performance. The warnings would have had to be given before the certification application was filed, if the employer was to prove that that the warnings were related to the employee’s performance rather than to his or her involvement in the organizing campaign.

Question 42

A labour relations board that upholds a complaint of an unfair labour practice can take several courses of action in determining an appropriate remedy.

Answer 42

It will usually choose a remedy that will attempt to make whole the situation, meaning that the remedy will attempt to put the parties to the complaint in the same situation they were in before the unfair labour practice occurred

Question 43

Examples of “make whole” remedies include

Answer 43

reimbursing a union for the cost of extra organizing expenses incurred in combatting an employer’s anti-union activity, or reinstating employees who were disciplined because of anti-union animus.

Question 44

“Make whole” remedies can also attempt to reverse any damage that an unfair labour practice has caused an organizing campaign. These can include

Answer 44

allowing union organizers into the workplace, allowing employees or unions to post information on com- pany bulletin boards, or allowing the union to hold information meetings in the work- place during working hours.

Question 45

it can be difficult to make whole the situation caused by an unfair labour practice

Answer 45

for the simple reason that the unfair labour practice may already have had the effect of intimidating employees

Question 46

If there is con- cern that an unfair labour practice may not stop after an order is made

Answer 46

most Canadian labour codes allow a labour relations board to file an order in provincial or federal court, which gives the order the same power as a judgement from that court. Violation of a court order can result in a finding of contempt of court and the imposition of asso- ciated penalties, which could include financial penalties or even jail time.