What is Union Certification?
Union Certification means that the Labour Board in your jurisdiction has certified a union as the exclusive bargaining agent for a specified group of employees in your company. It marks a fundamental change in the employer-employee relationship because the company is no longer able to negotiate individually with its employees, concerning terms and conditions of employment. It is much bigger than that, however. Studies have found that the cost of doing business increases from 25% to 35% after union certification. In fact, in some industries like construction, the cost increase is much more than that. This is serious, and in some cases, it can make your company uncompetitive within the marketplace.
What should a company do when served with an Application for Certification?
Union certification is not inevitable! You can fight Union certification, and win.
You must act immediately! Seek the counsel of an expert labour lawyer. Do not put it aside for tomorrow's business. In Ontario, you have only two business days to fully respond to an Application for Certification. If you fail to respond, the Labour Board can and will certify the Union without holding any hearing on the merits, whatsoever. In fact, if you are certified this way, and having received notice of the application, there is no appeal of the decision. Your company is unionized.
Another thing to consider is the "jurisdiction" of the Application for Certification. Does it even apply to your company? Could it apply to part of your business? Generally, this is a primary consideration in mounting a defence to the union's application.
In Ontario, in the non-construction sector, the Labour Board will, upon receipt of an Application for Certification, order a secret ballot vote to take place within five business days of the date of the application. Only those persons within the bargaining unit sought by the union, will be allowed to vote. It is usually the outcome of the secret ballot vote that will decide whether your company becomes unionized.
If 40% or more of your employees have signed union cards (sufficient to get a vote), this does NOT mean the Union will win the vote.
Which employees are subject to the Application for Certification?
Usually, the union decides which group of employees it wishes to represent when it makes its application. This group is called the "bargaining unit". The bargaining unit cannot include management personnel, non-working supervisors, persons involved in human resources or persons who have regular access to confidential information concerning human resources.
In Ontario, different "rules" apply depending upon whether you operate in a non-construction business activity (like manufacturing, cleaning services, food industry) or, if you are engaged in the construction sector.
Generally speaking, the union can apply for certification if it has the support of at least 40% of the bargaining unit it seeks to represent. In other words, if it has collected membership cards from at least 40% of those employees, it can file an Application for Certification with the Labour Board.
Although your business may be located in Ontario, if it is involved in business activities subject to federal legislation under the Canada Labour Code, an Application for Certification must be made by the union to the Canada Industrial Relations Board; not the Ontario Labour Relations Board. Therefore, there are different procedures for industries such as trucking (where the business also operates outside of Ontario), aviation, shipping, rail transportation, bus transportation (again where the business also operates outside of Ontario), banking, etc.
In the construction industry, certification is called "card based". If the union obtains signed membership cards from 55% or more of the persons doing construction within the Board Area who are working on the application date, there will be no vote and the company will become unionized. See our section on Construction Labour Law for more information.
What can an employer do to prevent union certification?
An employer (that includes managers and supervisors of the employer) cannot engage in intimidation, make threats, coerce or unduly influence an employee's right to choose whether or not to be represented by a union. THIS DOES NOT MEAN THE COMPANY HAS TO BE SILENT.
There are five business days before the vote. Employers should, with the support of a properly trained and experienced labour lawyer, acknowledge the Application for Certification and communicate regularly with employees to assist them in understanding their options.
Avoid company communication meetings where employees are forced to attend. Avoid one-on-one discussions with employees within the proposed bargaining unit. Often, unions have "inside employee organizers" speak to management personnel and ask questions which might elicit a response that will attract an Unfair Labour Practice Complaint. For example, the "inside employee" may attempt to get a manager to promise raises if the employees vote against the union. Nine times out of ten, the inside employee is secretly recording this conversation on their cell phone, which is legal in Canada. More importantly, that secret recording can be used in evidence against the company before the Ontario Labour Relations Board.
How can Hyde HR Law help my business remain union-free?
We are certified specialist in labour law. Applications for Certification can be defeated. Hyde HR Law has assisted numerous clients in doing just that. This includes companies engaged in transportation, manufacturing, colleges and private schools, food services, cleaning, security and construction. Contact us today.