INDUSTRIAL RELATIONS
IN CANADA
Fiona A. E. McQuarrie
Prepared by:
Tom Barrett
Chapter
6
Establishing Union Recognition
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
Majority of those
voting
Federal
Between 35% and 50% of
employees in the proposed
bargaining unit
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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