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INFORMATION BULLETIN |
#8 CERTIFICATION
I. INTRODUCTION
The Labour
Relations Code allows employees to join or form a trade union. A union may become
the exclusive bargaining agent for a unit of employees in two ways. It may be
voluntarily recognized by an employer. A union may also apply to the Labour
Relations Board for certification. See: Section 32.
If a union applies for certification, employees vote on
whether or not a union will represent them. The vote is by secret ballot. A
union is certified only if the employees decide to be represented by it.
Certified unions can require the employer to bargain in good faith. This
normally results in a collective agreement. Such an agreement covers all
employees in the bargaining unit.
This
Bulletin explains the certification process. This includes applications under
the Labour Relations Code and the Public Service Employee
Relations Act.
II.
AN OVERVIEW
The Labour Relations Board supervises the certification process. It:
·
receives applications from trade unions;
·
notifies the employer, employees and other
affected persons of the application;
·
conducts investigations and holds hearings to
make sure the union applied at the right time, with the necessary level of employee
support, and according to the Code’s requirements;
·
makes sure the group of employees in question is
a unit that is appropriate for collective bargaining;
·
holds a secret ballot representation vote among
the affected employees; and
·
issues certificates for successful applications.
The Board’s certification process takes approximately 15 working days.
III. THE APPLICATION
Unions file a certification application to begin the process. Applications must meet several criteria. The application must be on the correct form. An application must be timely. The application must include evidence that 40% of the employees in the bargaining unit applied for support the union. The bargaining unit applied for must be appropriate. The application must also contain the correct legal name of the employer and the union. These criteria are explained below.
Application Form
Unions must
file an “Application for Certification” form. A union organizer must complete
the form’s declaration. Application and petition forms are available in the
Board’s
A complete
application for certification includes:
·
a
completed application form signed on behalf of the union;
·
a
declaration by a union organizer; and
·
evidence
of 40% support in the unit applied for.
Timeliness
Applications
are subject to time limits. These are outlined below. See:
Section 37.
Constitutional Filing
Unions must
file their constitutional documents with the Board. This filing must take place
at least 60 days before applying for certification. This rule applies to newly
formed unions and new locals of established unions. The Board can reduce this
time in special cases. Unions must obtain any waiver before
applying for certification. See: Sections 24(1)(a), 37(1)(a); Bulletin 7.
Previous Applications
If a union
withdraws a certification application, it cannot make the same application for
90 days. Similarly, if the Board has refused an application, the union must
wait 90 days. The Board can reduce this waiting period on application by the
union. The Board cannot grant consent after a certification application has
been filed. Applicants must seek a waiver of the 90-day time-bar before applying
for certification. See: Section 57; Steelworkers 722 v.
Handleman Co. of Canada Ltd. [1988] Alta.L.R.B.R. 431.
Strikes or Lockouts
No union
can apply for certification during a lawful strike or lockout without Board
consent. See:
Section 37(1)(b).
Existing Collective Bargaining Relationships
Unions may
apply for certification during one of six open periods. These are:
1.
at any time, if there is no
existing collective agreement or certification covering employees in the unit;
2.
10 months after another bargaining
agent is certified, if no collective agreement is in effect;
3.
10 months after the date of the
Court’s decision on a challenge to an existing certification, if the
certification is not overturned;
4.
within the last 2 months of an
existing collective agreement;
5.
in the 11th or 12th month of
the second or subsequent year of an existing collective agreement with a term
of more than 2 years, but not less than 10 months before the end of the
agreement; or
6.
when the employer has served
notice of its intention to terminate its voluntary recognition of a trade union
and to refuse to bargain collectively. See: Section 43.
See: Section 37(2).
Proof of Support
Certification
applications must include evidence of employee support. At least 40 percent of
the employees in the unit applied for must support the union. This evidence can
be membership evidence or petition evidence.
See: Section 33.
Membership Evidence
Membership
evidence includes applications for membership, memberships in good standing, or
a mixture of the two. This evidence can be:
·
Copies of completed membership application cards
along with proof of payment of a sum of not less than $2. Membership applications must be no more than 90
days old when the certification application is filed. The Board does not
require proof of payment of any other initiation fees. Applicants for
membership must pay their own $2. Loans from a union organizer disqualify the
card. This may result in less than 40% support for the union. Including invalid
cards may also cause the Board to question the organizer's declaration. Either
can end in failure of the application for certification. See:
Section 33(a)(ii).
·
Copies of documents usually kept by the
union showing membership in good standing. The Board usually decides membership status by looking at the union’s
records. Records showing that a person is a dues paying member are acceptable
proof that the person is a member in good standing. The Board may examine the
union’s constitutional requirements about membership in good standing. See:
Section 33(a)(i).
Petition Evidence
Petition
evidence means a petition signed by each person supporting the application.
Petition evidence and membership evidence cannot be combined. Signatures
collected more than 90 days before the date of the certification application
will not be counted. Petition headings must be complete (including the employer’s name and the union’s name) and clearly
worded. The Board has blank petition
forms available from its offices and on its website for applicants to use. All
signatures must be witnessed. See: Section 33(b); Bulletin 1.
The Board
suggests trade unions include an alphabetic list of supporters with all
applications. If this is not possible, membership or application cards should
be in alphabetical order. A trade union seeking to certify a large group of
employees can assist the Board by providing a computer disc with a copy of the
list of supporters in an Excel or MS Word format.
Appropriateness of the Bargaining Unit
The
bargaining unit must be appropriate for collective bargaining. Applicants word
their own bargaining unit descriptions. The Board modifies this wording as
necessary so long as the amended unit is appropriate for bargaining and is
reasonably similar to the unit sought. See: Section 32, 35; PSERA Sections 10, 11, 16;
Bulletins 9, 10, 11; GCU v. Calgary Herald [1993]
Alta.L.R.B.R. 222.
The
The Board
uses a union's legal name and local number (when applicable) on certificates.
Often unions use an abbreviation (e.g., CLAC, IBEW, AUPE, or Local 47) but each
union has only one true legal name.
The Employer’s Name
Employers
operate under a variety of names. These may be divisions, trade names,
abbreviations, or names of particular institutions. Each employer has only one
proper legal name. The Board uses only the employer’s full legal name. Do not
put geographical references, division or institution names or operating names
either as, or part of, the employer’s name. If such references are necessary to
show which employees the certificate covers, put them in the unit description.
IV. PROCESSING APPLICATIONS
When an
application is received, a Board Officer is appointed to the file. The Officer
notifies the affected parties and schedules a hearing. The Officer investigates
the application and writes a report. All parties may object to the report’s
content. If objections are raised, a hearing is held. Assuming the application
is found to be in order, a vote will then take place. If a majority of
employees voting choose the union, the Board then issues a certificate. These
steps are explained in detail below.
Appointing an Officer
When an
application is received, the Director of Settlement appoints an Officer to
investigate. Board Officers are impartial employees of the Board. They do not
advocate for employees, unions or employers. Rather, they make inquiries to
assist the Board. See: Section 34(1); Bulletin 1.
The Officer
begins by reviewing the union’s status. The Board presumes a previously
certified organization is a trade union. If not previously certified, the union
must satisfy the Board that it has met the filing requirements in the
Code. See:
Section 24; Rules of
Procedure, Rules 22(1)(g), 25; AUPE 124 v. Oak Hill
Foundation [1984] Alta.L.R.B. 84-054.
Notifying the Parties
The Officer
phones the employer to:
·
notify
the employer about the application; See: Rules of
Procedure, Part III.
·
outline
the bargaining unit applied for;
·
explain
the procedure for the employer's response to the application;
·
make
an appointment for the Officer to review the employer's records;
·
state
the date of the hearing and explain the possibility of cancelling the hearing
if no one objects to the application or the Officer's report; See:
Rules
of Procedure, Rule 22(1)(m).
and
·
address
the possibility of a vote.
The Officer
also sends written notice to the employer, trade union and any other party
affected by the application. The notice contains:
·
a
copy of the application (without specific information on employee support);
·
details
of the hearing, and the possibility of cancelling the hearing if the
application is uncontested; and
·
information
about the possible employee representation vote.
Employees
are notified by a "Notice to Employers and Employees" posted at the
work site. The Officer usually directs the employer to post the notice, but may
arrange posting through some other party where appropriate. The notice tells
employees about the procedures and time limits for filing objections and the
possibility of cancelling the hearing if no one objects to the
application. See: Section 13(1)(e); Rules of
Procedure, Rule 14.
Employer Response
The Officer seeks from the employer:
·
the
proper corporate name, address, and phone number;
·
a
contact person and phone number;
·
the
employer's legal counsel or agent (if any);
·
the
number of work sites, their location, shift times and employees working at each
site; and
·
an
employee list, preferably in alphabetical order.
See: Section 13; Voting Rules,
Rule 8(h).
If an employer
fails to provide the necessary information, the Board can proceed with the
application using information obtained from the employees or union. See:
Section 13(3).
Officer's Investigation
During the
investigation, the Officer will determine who can provide the necessary
information for the report and will usually attempt to speak to one person on
behalf of each party.
At the
appointment with the employer, the Officer reviews the employer's records. The
Officer obtains a complete list of employees for the Board to use in
determining the application for certification. It will assist the Board in
determining how many employees are in any appropriate unit and who should be on
any voters list. The Officer may ask the employer to provide an alphabetical
list of employees or one on computer disc.
See: Section 13; Bulletin 3.
The
employee list needed by the Officer will indicate each employee's work site and
work function. The list will show whether employees are full-time, part-time,
casual, or employed in managerial or confidential labour relations positions.
For an
application under the Public Service Employee Relations Act, the Officer's report will indicate
individuals excluded from the unit under Section 12 of the Act.
The Officer
will ask the employer to identify which employees worked on the date of
application. If an employee did not work, the employer should advise the
Officer of the last day worked, whether the employee was on leave, dismissed or
laid off and when and if the employee is expected to return to work. The
Officer, employer and union discuss which persons the parties believe are
included in, or excluded from, the unit.
See: Voting Rules,
Rule 16.
The
Officer, union and employer review the date, places and times suitable for
voting. See:
Bulletin
14.
The Officer's Report
At the end
of the investigation, the Officer completes a report and gives it to the
parties. The report includes:
·
the
legal name of the employer;
·
the
correct name of the applicant;
·
a
statement about whether the union has met the 40% support level; See:
CUPE 41 v.
Westview Regional Health Authority [2002] Alta.L.R.B.R. 174.
·
a
statement about whether the petition appears to be a genuine and voluntary
expression of the employees’ wishes;
·
a
list of employees in the unit (no reference is made to their support for the
application); See: Timeu Forest Products
[1997] Alta.L.R.B.R. 430.
·
a
recommendation about the appropriate bargaining unit;
·
a
recommendation about trade union status;
·
where
possible, recommendations concerning vote arrangements; and
·
any
necessary recommendations on persons who may be included in or excluded from
the unit.
See: Bulletin 3.
The
employee list in the Officer's report will include persons employed in the
bargaining unit applied for, but will not show if they supported the
application. The Officer will, if disputed and where possible, make a
recommendation as to whether a named person is an employee included in the
bargaining unit applied for, or a reasonably similar unit. See:
Bulletin
22; Voting
Rules.
The Officer
sends the written report to all the parties.
Objections To the Report
All parties
may object to some or all of the contents of the report. The objecting party
must send its objections in writing to the Board and the other parties so that
they receive a full business day of notice of the objections before the
hearing. If the objecting party does not, the Board may proceed without
considering the objections. See: Bulletin 3.
The Board
requires that objections be clear, specific and detailed. General objections
are not normally acceptable (e.g., the bargaining unit is inappropriate). An
objecting party should be prepared to explain its objections and bring evidence
to support them. See: Rules of
Procedure, Rule 26; Bulletin 2; UA 488 v. Vikon
Technical Services et al. [1985] Alta.L.R.B. 85-073.
An employee
or group of employees objecting to the application must file their objections
at least one full business day before the hearing. They send the objection in
writing and then they or their representative attend the scheduled hearing to
present their objections to the panel. If their objections do not deal with the
statutory criteria set out above, and no other objections are filed, the Board
may cancel the hearing and may let the employees decide the matter in the vote.
If the
Board receives no objections of substance, it processes the application relying
on the facts contained in the Officer's report. It confirms the date of the
representation vote if there is 40% support of employees. The success of the
application then depends on the results of the vote. See:
Rules
of Procedure, Rule 26.
In some cases, objections may be filed which do not affect the 40% support. In those cases, the Board frequently orders the vote taken and the ballot box sealed pending a hearing and decision on the other objections. If the objections affect the 40% support, the Board orders the vote taken and the ballot box sealed pending a hearing and decision on the objections. See: UFCW 401 v. Freson Market Ltd. [1995] Alta.L.R.B.R. 491.
The Hearing
If no
objections are received one full business day before the hearing, the Officer
notifies the employer and the trade union(s). The Officer discusses the voting
arrangements and advises the parties if the Board has cancelled the
hearing. See:
Section 34(3);
Bulletin 4.
If
objections are filed, on the hearing date, the Board will usually rely on the
facts set out in the Officer's report unless a party objecting to the report
presents additional evidence. See: Rules of
Procedure, Rules 22(1)(m), 26, Bulletins 3, 4.
At the hearing, the Board decides:
·
if the applicant is a trade union;
·
if
there is evidence of 40% support;
·
if
the application is timely;
·
the
appropriateness of the bargaining unit;
·
the
date, place and times of any vote; and
·
if there are any prohibitions to the certification unders Sections 37 and 38. See: Sections 37, 38.
See: Section 34(1), (2).
The Board normally orders the vote once it is satisfied the union has 40% support in the unit applied for. The vote is ordered based on the Board Officer’s findings of 40% support for the application. Objections that may affect the 40% support will be heard by the Board usually after the vote is conducted and the ballot box sealed. Where no objections are filed, a Chair or Vice-Chair alone may deal with the matters. See: Sections 9(11), 34(2); Bulletin 4;GCU 34-M v. Southam Inc. et al. [1993] Alta.L.R.B.R. 529; Carpenters 1325 v. Fraser Bros. Roofing et al. [1997] Alta.L.R.B.R. 541.
[amended October, 2006]
The Vote
The Officer
prepares a Notice of Vote and arranges for its posting at the work site.
The Board
has Voting Rules and an Information Bulletin on representation votes.
If there
are no disputed ballots, the Returning Officer counts the vote and advises the
parties of the results.
If disputed
ballots remain and the parties are unable to resolve the differences with the
Returning Officer, the sealed ballots and sealed ballot box are sent to the
Board and the dispute is set for hearing.
See: Voting Rules,
Part II; Bulletin
14.
At this
hearing, the Board will decide any disputed ballots and any challenges to the
proper conduct of the vote. After the hearing, if the Board directs, the
ballots are counted and the results released to the parties and the Board. See:
Voting
Rules, Rule 4 to 17.
The Board
notifies all parties of the success or failure of the application.
The Certificate
The Board
issues certificates in triplicate. The trade union and employer receive
original copies. The Board retains the third copy. See:
Section 39.
The
certificate includes the proper name of the trade union and employer, the
bargaining unit description and the date of certification. See: Section 40.
Section 40
of the Labour Relations Code sets out the effect of granting a certificate.
V.
CHECK LIST FOR APPLICATIONS FOR
CERTIFICATION
Ensure the
application is supported by:
·
trade
union documents filed at least 60 days before the application or Board consent
to apply within the 60 days;
·
a
fully completed application form;
·
attached
evidence of membership support (lists or cards sorted in alphabetic order, or a
petition); and
·
a
completed declaration by a union organizer verifying the authenticity of the
membership evidence
See also:
Information
Bulletins 1, 3, 4, 7, 13 and 14
Rules
of Procedure
Voting
Rules
For further
information or answers to any questions regarding this or any other Information
Bulletin please contact:
Director of
Settlement
Labour
Relations Board
501, 10808
99 Avenue
Telephone: (780) 422-5926
Manager of
Settlement
Labour
Relations Board
308, 1212
31 Avenue NE
Telephone: (403) 297-4334
Email: alrbinfo@gov.ab.ca
Website: alrb.gov.ab.ca