Area of Law: Employment Law
Answer # 623
Establishing and terminating union rightsRegion: Ontario Answer # 623
How are union representation rights established?
In the retail and industrial sectors of Ontario, union rights are almost always established by the Ontario Labour Relations Board (the ‘Board’) granting certification.
Unions arise when a number of employees concerned about the work conditions of a particular group of employees, get together and form a union. For example, in a company that has both plant workers and office workers, the concerned employees may be a few plant workers seeking to represent all the other plant workers. In this example, the entire group of plant workers is called the bargaining unit, and the few plant workers who seek to represent them will likely be part of the union organizing committee.
The concerned employees who have formed a union must then follow a number of steps to have the Board certify the union’s right to represent the bargaining unit.
The union will collect membership cards or applications for membership signed by individual employees who are part of the bargaining unit. Once it obtains the required percentage of the bargaining unit’s support, the union will submit its application for certification to the Board.
Support of greater than 55%
The significance of card-based certification is it allows a union to become certified without a vote where it can demonstrate it has the support of greater than 55% of the proposed bargaining unit. Where a union can meet this threshold, the Board usually certifies the union without the necessity of a secret ballot vote.
Support of between 40% to 55%
If the union obtains 40% of the bargaining unit’s support, it will submit its application for certification to the Board. If the percentage of support is between 40% and 55%, the Board will order that a vote be held among the employees within five working days, to determine if the union will be certified.
During the five days leading up to the vote, the Board will contact both the employer and the union to determine which employees are part of the bargaining unit and therefore entitled to vote.
The Board has developed extensive rules as to which groups may form their own bargaining unit. For example, in the industrial sector, plant employees and office employees are usually separate, as are full-time and part-time employees, and security guards. Each of these separate groups would be part of separate bargaining units although, except for security guards, they could be part of the same union. The Board’s rules about groups and bargaining units are both complex and evolving.
Sometimes disputes arise between employers and the union as to which employees form part of the bargaining unit. One reason for this is that employers would want to exclude supervisors and possibly propose as small a bargaining unit as possible, whereas the union will want to include all employees it feels want a union, and may want to propose as large a unit as possible. Such disputes may have to wait until after the vote to be resolved.
Once the Board has decided which employees form the bargaining unit, a voters’ list is created.
Secret ballot vote
Once a voters’ list is created, a secret ballot vote is then conducted by a Board officer. In order for the union to be certified as the bargaining unit’s representative, more than 50% of the employees who actually vote must vote in favour of union representation.
There are new voting procedures that make voting more accessible to employees. The Board is now able to conduct votes outside of the workplace, including:
- by telephone, and
- electronic voting.
In addition, the Board Officers can give directions relating to a vote and voting arrangements to ensure neutrality of the voting process. Once the union has been officially certified by the Board, it can begin to negotiate contracts with the employer, known as Collective Agreements.
There are certain rights employees trying to form a union have under the Labour Relations Act.
Right to return to work
Employees have the right to reinstatement following the start of a legal strike or lockout within six months.
Employer misconduct results in automatic certification
If during an organizing campaign there is employer misconduct (under section 11 of the Act), the Board may:
- order representation votes to reflect the true wishes of the employees in the bargaining unit, or
- certify the trade union as the bargaining agent of the employees in the bargaining unit that the Board determines could be appropriate for collective bargaining if no other remedy would be sufficient to counter the effects of the contravention.
Consolidation with other bargaining unit
If there is an existing bargaining unit represented by the same union, after certification, a union or an employer may apply to the Board to have the newly certified bargaining unit consolidated with the existing unit. In addition, a union and employer may make a joint application to the Board to change an existing bargaining unit structure, such as amending Collective Agreements.
Termination of employee and increased “just cause” protection
An employer is required to prove just cause where it terminates or disciplines an employee after certification. An employer is also be required to prove just cause where it terminates or disciplines an employee after the start of a lawful strike or lockout. In both cases, the protection offered through just cause continues until:
- the parties have reached a Collective Agreement, or
- the union ceases to represent employees in the bargaining unit.
The right not to be disciplined without just cause during certain bargaining periods will be enforceable through grievance arbitration.
First Collective Agreement arbitration
Both employers and unions have access to arbitration for the first Collective Agreement. When unable to settle a first collective agreement, either party can apply to the Board to direct the settlement by arbitration.
How can union representation rights be terminated?
The Board is also involved in situations where union representation rights are to be terminated.
Employees may apply to the Labour Board for a vote to terminate a union’s right to represent them. Such applications may be made only during very specific time periods. The most common of these time periods are:
- during the last two months before a Collective Agreement is to expire, and
- where no Collective Agreement has existed for a year, subject to certain complex rules.
If employees wish to apply to terminate the union’s right to represent them, they must submit a formal application to the Labour Board. The application must be supported by a signed list of at least 40% of the bargaining unit members. The list must state that those signing it “no longer wish to be represented by the union in their employment relationship with the employer.” The specific name of the union and the employer must be included in that statement.
The Labour Relations Act (LRA) and the Labour Board require that employers have no involvement in an employee application for decertification.
Fines for Labour Relations Act (LRA) violations
Both unions and employers face penalties for violations of the LRA. Maximum fines for LRA contraventions are $2,000 for individuals, and $25,000 for organizations.
To obtain forms for applying for decertification or for more information about the creation of union representation rights, contact the Ontario Labour Relations Board, at olrb.gov.on.ca. If your matter is federal, contact the Public Service Labour Relations and Employment Board. For legal help and assistance, contact an employment lawyer.
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