Session 3: Union Formation, Legal Context

Two paths to have bargaining unit recognized

Union certification

Voluntary recognition

Union certification

Government issued license entitling a union to represent employees from a bargaining unit

Voluntary recognition

Employer voluntarily recognizes a union without certification

The pillars of Canada’s unionization model

Majoritarianism

Exclusivity

Majoritarianism

• All-or-nothing model of freedom of association.

• Requires majority support for unionization.

Exclusivity

Union becomes the exclusive legal representative.

What happens during organizing campaigns?

Contact between workers and union

Initial contact, then deeper meeting

Discuss benefits of unions + organizing fundamentals

The organizing campaign commences

Goal #1 = signed membership cards

Usually involves some form of organizing committee

Committee generates an ‘issues program’

Inside organizers = fundamental to process

Next step = file an ‘application for certification’

This ‘application for certification’ is received
by the labour relations board
The labour board thereafter addresses various
issues in assessing the application

Goal #1 of organizing campaign

signed membership cards

Salting

Getting hired at a company for the purpose of unionizing

Certification issues addressed by the labour relations
board

1. Jurisdictional issues

2. Trade union status

3. Timeliness of application

4. Employer status

5. Appropriateness of bargaining unit

6. Employee status

7. Union support

Cert issues addressed by LRB: Jurisdictional issues

Is the bargaining unit filing under the right federal or provincial law?

Cert issues addressed by LRB: Trade union status

Is it a legitimate trade union?

i.e. not another association or company union

Cert issues addressed by LRB: Timeliness of application

No limit in non-union settings, except for statutory bar after unsuccessful drive

Limits in unionized settings: Open period

Open period

A period of time defined in a collective bargaining statute during which a union may apply to displace another union as the representative of a group of employees, or during which unionized employees may file an application to “de-certify” the union.

Ontario open period

If coll agreement less than 3 yrs: during final 3 months of agreement

If coll agreement greater than 3 yrs: during months 34-36 and then last 3 months of every subsequent yr

Cert issues addressed by LRB: Employer status

lead employer versus temporary agency

Who is the true employer?

Cert issues addressed by LRB: Appropriateness of bargaining unit

To determine denom of golden frac LRBs decide if unit of workers is an ‘appropriate unit’

Common test: shared community of interest

Problem of related employers

size and undue fragmentation

Golden fraction

# who want union / # eligible to decide

Cert issues addressed by LRB: Employee status

Only ‘employees” can unionize, some excluded from cb like those who exercise managerial func or employed in confidential capacity relation to lab relations

Also looks at dependent contractors

Issues addressed by LRB: Union Support

Does union have req level of support to be certified

Two paths used to measure employee support for coll bargaining

Card check model

Mandatory certification vote

Card-check model

One step process – certification is approved after threshold reached (over 50-60%)

Available federally, New Brunswick, Prince Edward Island, Quebec, and recently, B.C

Mandatory certification vote model

Two step process – once threshold of card-signing is reached (35-45%), a government initiated secret ballot takes place (requiring a majority)

Unfair labour practice

An action undertaken by either the union or the employer that violates one or more articles in relevant labour legislation

Restrictions on ULPs are a fundamental pillar of labour legislation introduced in the _____s and _____

1940s and 1950s

Two categories of restriction on employer conduct

Intimidation and coercion prohibition

Interference and domination prohibition

Intimidation and coercion prohibition

Prohibition from punishing employees for supporting or joining

an employee association

Especially economic threats (physical threats now uncommon)

Linked to anti-union animus

Retaliation can be inferred

E.g. Napora at Marv Jones Honda

Interference and domination prohibition

No attempts to install company unions or other alternatives

to an independent union

No attempts to prevent union from functioning

• Refusing to provide list of employees, bargaining directly with employees, refusing to collect union dues, screening out pro-union employees in hiring, etc.

Non-motive unfair labour practices are still illegal

Employer expression rights

1. To bar union organizing activities during working hours

2. To limit organizing on private property

3. To express their views on unions and collective bargaining

E.g. captive audience meetings

Yet there is a fine line between expressing opinions and intimidation, which labour boards assess using an objective test

What would a reasonable person of normal intelligence think?

Remedies for unfair labour practices

Reinstatement of employees

Or even interim reinstatement

Remedial certification

Other creative forms

Union office in company, pro-union videos, second votes, etc.