Trade Union Bargaining Rights
This section of the guide describes how a trade union gets the right to bargain with an employer on behalf of employees. A trade union is an organization of employees formed with the objective of representing employees in bargaining. For practical and legal reasons, a trade union needs the support of the employees it seeks to represent.
While an employer can voluntarily bargain with a trade union for a group of employees (called a bargaining unit), the employer may be unwilling to do so. The Labour Relations Code allows a trade union that believes it has the employees' support to apply to the Board for bargaining rights. This is called an application for certification. The union's support is decided on a majority rule basis in a secret ballot vote conducted by the Labour Relations Board.
Once certified, a trade union can require the employer to negotiate in good faith for the purpose of reaching a collective agreement.
Bargaining rights, once granted, can vary with time. The circumstances of employment may change as the employer's business grows or changes, is sold or is disposed of in some other way. The Code allows the modification of bargaining rights to fit these changes. It also protects the employees from efforts by an employer to avoid collective bargaining responsibilities.
Employees who have selected a trade union are free to change their minds. The Code allows periodic opportunities for employees to cancel a trade union's bargaining rights or to select a different trade union to represent them.
Organizations that enter into collective bargaining on behalf of employees are known as trade unions. Trade unions represent a specific group of employees in negotiations with the employer and otherwise act on the employees' behalf. A trade union may be a local of a provincial, national or international union, or it may be an independent organization that represents the employees of only one plant or business.
To form a trade union, a number of employees agreeing to work as a group draft a constitution and bylaws, sign up members and elect officers. More commonly, employees wishing to be unionized will apply to join an existing trade union.
Before a trade union can apply to be certified, it must file its constitutional documents with the Labour Relations Board. This information must be updated whenever changes occur. It is possible for two or more trade unions to make a joint application for certification (Section 36).
A trade union may apply to the Board to be certified for a unit of employees it believes is appropriate for collective bargaining. The application is made by completing and filing a form supplied by the Board, along with proof that the union has the support of 40 per cent of the employees in the bargaining unit it is applying to represent (Sections 32, 33).
The Code requires the Board to investigate five aspects of the application before granting a certificate. These are
- Trade union status
- The timeliness of the application
- The appropriateness of the bargaining unit
- Initial 40-per-cent support followed by majority support in a secret ballot vote
- Bars to certification based on picketing or management influence
The Board must conduct its investigation as quickly as possible (Section 34(3)). The Board normally orders a representation vote when it is satisfied the union has the necessary 40% support. The vote is ordered based on the Board’s investigation. If there are objections over the 40% support, the Board orders the vote and the ballots sealed pending a hearing.
When is a certification application timely?
The Code places several restrictions on when an application can be made.
The union must have had its constitution or bylaws on file with the Board for at least 60 days (Section 24). This period may be reduced by the Board but this must be done before the certification application is filed.
Several limitations serve to protect bargaining rights held by other trade unions. This protection for an incumbent trade union is limited. A certification application can still be made if it is filed during what are referred to as "window periods."
- When 10 months have passed after certification, if a collective agreement has not been reached
- When 10 months have passed after the courts have upheld a disputed certification, if a collective agreement has not been reached
- Within two months of the end of the term of a collective agreement of two years or less
- When an agreement is for a term of more than two years, within the 11th or 12th month of the second or any subsequent year of the term, or within the two months before the end of the term (Section 37(2))
Some other timeliness restrictions apply.
- If the union previously lost or withdrew a certification application for the unit, it must wait 90 days from the time the application was withdrawn or dismissed
or get the Board's consent before reapplying (Section 57).
- If the union has been decertified for that unit, it must wait six months before reapplying (Section 54(2)).
- During a strike or lockout, a trade union needs permission from the Labour Relations Board to apply for certification (Section 37(1)).
What is an appropriate bargaining unit?
The Board can only certify a group of employees (a bargaining unit) if the employees fit together in a group that is suitable for collective bargaining. The Board must decide whether the employees are likely to share the same concerns. In deciding this, the Board will look at the kind of work the various employees do, their training and skill, their geographical location and similar factors. It will also look at the makeup of the employer's business and try to ensure that the bargaining unit is a viable one in that environment. In some cases, a unit made up of all employees in a certain workplace is appropriate; in others, only part of an employer's workforce may be appropriate as a bargaining unit.
When a trade union makes an application it must specify the bargaining unit it wants to represent. The Labour Relations Board will test the initial 40-per-cent support on the basis of this unit. If the Board finds this unit to be inappropriate for collective bargaining, it may vary the unit to one that is appropriate. This change can be made only if there is an appropriate unit reasonably similar to the one applied for. The representation vote involves the employees in the unit the Board finds appropriate.
How does a union prove it has the 40-per-cent support necessary to start an application?
A union must demonstrate that, when the application is received by the Board, 40 per cent of the employees in the bargaining unit applied for are, or have applied to be, members in the union, or have signed a petition to show their support. Those who later change their minds, for or against the union, and those hired after that date do not affect this initial count.
If the union is relying on applications for membership or a petition, these must have been made not more than 90 days before the certification application is filed with the Board. Applicants for membership must each have paid at least $2 on their own behalf to the union with their application (Section 33(a)).
A union may prove its support by a combination of membership in good standing and applications for membership. Alternatively it can prove its support through a petition. However, petition evidence and membership evidence cannot be mixed. When a union submits its evidence, the Board requires a union official to certify its authenticity.
Will the employer receive information about individual employees?
No. The privacy of employees is protected. The report that goes to the Board contains information about which individuals in the bargaining unit have joined the union, applied for membership or signed petitions. This information is deleted from the copies sent to the affected parties. The Board is not required to divulge this confidential information about a person's union affiliation (Section 14(6)).
How is an application for certification investigated?
When the Board receives an application for certification, it notifies the employer and any other parties entitled to appear in the matter. The employer is required to post a notice at the workplace telling the employees that an application for certification has been made. The notice also informs anyone who objects to the application that they may contact the Board. A Board officer is assigned to investigate the application.
From the date an application for certification is received by the Board, the employer may not alter the terms and conditions of employment unless the change is in accordance with established practice or unless the trade union gives its consent. This restriction continues until 30 days after the certificate is granted, or if it is refused, until the date of the refusal (Section 147).
As quickly as possible, the Board's investigating officer gathers information about the application, and prepares a report. Specifically, the officer investigates both trade union and employer records to determine whether three key conditions of certification are met:
- The applicant is a trade union
- The unit of employees for which the trade union is applying or a reasonably similar unit is appropriate for collective bargaining
- The union's evidence demonstrates 40-per-cent support for the trade union among the employees in the unit applied for
When the officer's report is completed, copies are sent to the employer, the applicant trade union and to other affected parties. Any of them may object to the report or to the application for certification. The matter then goes before a Board panel that decides on any objections and whether or not to conduct a representation vote.
If the application satisfies the Code's requirements, the Board will conduct a representation vote to determine if a majority of employees in the bargaining unit favours certification. A notice of vote will be posted, setting out the type of employee eligible to vote. Anyone who feels entitled to vote may approach the returning officer while the polls are open. The officer will decide if that person is eligible or not (subject to final determination by the Board). A scrutineer from each of the parties is allowed during the vote and the count. The vote is by secret ballot, and the majority of those employees who actually vote determines the outcome of the vote.
Once it has been certified, a trade union can require the employer to meet and bargain in good faith for a collective agreement (Section 59). The certified union becomes the only body with lawful authority to bargain for the employees in the specified bargaining unit. No other union may seek to bargain for those employees, and the employer may not negotiate with any other union once a union is certified (Sections 40(1), 149(e) and 151(a)(b)).
Can an employer object to a certification application?
Yes, employers are entitled to object to applications for certification by their employees. The Board will notify the employer as soon as the application is received. The employer and the union will each receive the officer's report as soon as it is prepared and will be given an opportunity to present any objections to the contents of that report.
The employer's objection must be in writing and must be given to the Board and other parties at least one full business day before the hearing. The employer should clearly state their reasons for objecting. Employers, however, are not allowed to interfere with the employees' freedom to select a union.
Can an employee object to a certification application?
Yes. Employees can object individually or as a group by appointing a spokesperson to appear on their behalf. They should contact the Board officer and be prepared to appear at the certification hearing. The Board does not attach substantial weight to employee opposition inappropriately generated by an employer. Employees opposed to the application can vote to reject the union when the representation vote is held.
What options do employees have in a representation vote?
If no trade union represents the bargaining unit, the employees may decide whether they do or do not wish the applicant trade union to represent them.
When the certification vote involves a trade union that is seeking to represent a group of employees already represented by a different trade union, the vote will determine if the employees choose the new union. If the new union is certified, the old trade union ceases to be the bargaining agent for that unit. If the new one is not chosen, the old union remains as the bargaining agent.
Can there be electioneering?
Votes are usually held at the workplace. There is usually no restriction on off-site electioneering, in the form of meetings at other locations or mailings to employees' residences, for example. However, the Board does not allow electioneering at the voting place while the vote is being conducted. Any special restrictions will be posted with the Board's notice of vote. However, if electioneering is threatening or intimidating, or involves promises or undue influence, it may amount to a prohibited practice.
Who conducts the vote?
The Board appoints a returning officer to conduct the vote. Affected parties are each entitled to have a scrutineer at each polling station. The returning officer makes sure that anyone casting a vote is entitled to do so. Normally, at the conclusion of the vote, the returning officer will count the ballots in the presence of the scrutineers.
Disputes about whether or not an individual can vote can usually be decided on the spot by the returning officer. If the dispute cannot be resolved, the ballot is sealed separately and the ballot box is sealed at the conclusion of the vote. A Board hearing may then be scheduled to deal with the matter.
Any dispute about the way the vote has been conducted will be resolved by the Board.
A trade union seeking to represent employees of an employer has the right to apply for certification, but such an application is not compulsory. The trade union may approach the employer directly and ask the employer to voluntarily recognize the union by agreeing to bargain with the union. The employer and the trade union can then negotiate a collective agreement that will define the group of employees it will cover. Voluntary recognition of this type is particularly common in the construction industry.
A bargaining relationship based on voluntary recognition can be terminated by the employer giving six months' notice before the expiry of the collective agreement. The requirement for at least six months' notice of cancellation of voluntary recognition allows the question of union representation to be resolved before the bargaining cycle is due to begin. The union is allowed to respond to the notice of termination by applying for certification.
The Code contains a similar provision that allows a union to confirm its bargaining rights for groups of employees who have been voluntarily added to an existing but smaller bargaining unit (Section 44).
Certifications initially apply to a specified union and employer. The Code recognizes that changes may occur in the structure of companies and of trade unions, and that bargaining rights and obligations sometimes have to be modified to reflect these changes. The Board has a general power to reconsider and vary its certificates (Section 12(4)). The Code also contains specific sections dealing with some of the more common changes.
What happens if a business is sold or disposed of?
If a business is sold, leased or transferred to another employer, the trade union's bargaining rights do not automatically cease; they may continue to bind the successor employer. On application by an employer or trade union affected, the Board will look into the circumstances of the transaction to determine whether any existing certification or collective agreement remains in effect and is binding on the new employer (Section 46).
Where a business is sold or merged with a business that already has a collective bargaining relationship with a trade union, any person or union affected can apply to the Board to determine:
- The unit of employees appropriate for collective bargaining
- Which trade union, if any, should represent them
- Which collective agreement, if any, should remain in effect
- Which certificate or amended certificate continues to apply (Section 46(2))
What happens if a governing body changes its structure?
As with private sector employers, the Code allows the Board to decide whether the new governing body of a municipality, hospital or similar institution acquires the bargaining obligations of its predecessor. This allows the Board to resolve any questions about whether any certificates or collective agreements will continue, or be modified to suit the new circumstances (Section 48).
Recently, many new governing bodies have been created in health care and in education. Sections 48 and 162.1 apply to the transfer of bargaining rights to these new bodies.
The Board may declare two or more business entities to be a common employer for the purposes of the Code. This can be done when, in the Board's opinion, related activities are being carried out under common control or direction through more than one business entity (Sections 47, 192).
These provisions are aimed, in part, at the preservation of bargaining rights. Corporations may reorganize their affairs for tax, management or similar reasons without disrupting the labour relations of the business. The Board is allowed to intervene if an employer attempts to divert business through a related company to avoid collective bargaining obligations or agreements.
The Board does not use the section as an indirect method of certifying employees or to create units that are inappropriate for collective bargaining.
If a trade union merges with another trade union, the successor union may acquire the bargaining rights, privileges and duties of the previous union. Any person or union can apply to the Board for a declaration confirming this. Before this declaration is made, the Board will investigate the circumstances of the transaction to make sure the new trade union is indeed the true successor to the old one. When the Board is satisfied that the new union has properly taken over from the old union, it declares that the collective agreement and certification apply to the new trade union (Section 49). If a trade union simply changes its name, the Board will usually just reconsider the certificate and make the change using its powers under Section 12(4).
If employees are dissatisfied with the trade union that represents them, whether the union's bargaining rights arise from certification or from voluntary recognition by the employer, they can apply to have that union's bargaining rights revoked. They may then bargain individually with the employer or select a different union.
A revocation application must be the employees' choice, freely made without any interference from the employer.
The employees submit a petition to the Board expressing their wishes and giving the name of the employer and of the trade union, and the names and signatures of those employees who want to have the union's bargaining rights revoked. The Board keeps the identity of the petitioning employees confidential.
A Board officer will do an investigation and report to the Labour Relations Board whether the petition appears to be voluntary. Before a vote can be held, the Board must also be satis
fied that 40 per cent of employees in the bargaining unit support the application to make the change.
An application for revocation, like an application for certification, can be made only during those periods when the union's bargaining rights are not protected (that is, during the window periods as described in the previous section on certification). The Board's consent is needed to make an application during a strike or lockout (Section 52(1)). If the employee petition is in order, the Board will conduct a representation vote. A majority of those voting must vote for the change before the Board will revoke the bargaining rights of the trade union (Section 58(1)).
If the Board grants revocation, any collective agreement that had been in force is no longer binding on any of the parties. The employer and the individual employees are then left to negotiate or amend terms of employment with each other directly. The union affected by the revocation may not apply to be recertified or enter into a collective agreement for that bargaining unit for six months from the date of revocation (Section 54(2)).
How can employees change trade unions?
The employees may join another trade union, which can then apply for certification. It is not necessary to have the bargaining rights of the first union revoked; if and when the second union is certified, the first union automatically loses its right to represent the employees. The new union may apply for certification only when the old union's bargaining rights are unprotected (that is, during the window periods as described in the previous section on certification).
If a collective agreement was in force at the time of the change, the newly certified trade union becomes a party to it, but may terminate that agreement by giving two months' written notice (Section 40(3)).
Can an employer apply to revoke a trade union's certification?
Yes, but only when there is no collective agreement and there has been no collective bargaining with the union for three years after certification, or if there has been no collective bargaining for three years after the collective agreement has expired (Section 52(5)).
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