Trends In Union Organizing And Certification Under The Ontario Labour Relations Act
      

David L. Brisbin
      

November, 2003

Overview

The Globe & Mail recently ran an article with the headline "Unions covering fewer of Canada's workers". Within that article, a CLC senior economist was quoted as saying: 

"In 2002, just under one in three Canadian workers were covered by a collective agreement. The union coverage rate has trended down, by more than 9 percentage points, from a high of 41.8% in 1984 to 32.2% in 2002." 
      

New organizing has slowed rather than reversed the overall decline in union density.

     

This may reflect not just rowing against the tide, but also a failure by unions to devote enough resources to the task, to cooperate more in organizing and to reach out sufficiently to the 'new work force'." 

Why, then, is there a need to address this topic?

First, absolute numbers of union members have increased in the five-year period 1997-2002. If an employer is the target of a union organizing campaign involved in this absolute numerical increase, general statistics of declining overall percentages of union membership are cold comfort.

Secondly, the passages quoted above are part of a presentation to a multi-union conference to explore innovative techniques to organize workers to address this problem from the union's perspective.

Techniques of change being reviewed by unions include looking at non-monetary concerns, particularly job security, dignity and fairness, and organizing non-traditional targets, particularly those occupied by young people in transitory jobs, a spectrum including fast food, retail and university graduate programs. Unions are organizing beyond their original mandates. Traditionally private sector unions are organizing in the public sector while unions which historically represented public servants are now targeting factory workers.

Statistics from the Ontario Labour Relations Board show union organizing is on the increase in Ontario.

Trade unions are using increasingly sophisticated marketing methods to facilitate their organizing campaigns.

Their brochures have come a long way from past efforts - poorly reproduced monochrome handouts featuring badly-drawn cartoons and slogans from the '30's.

Now they feature upbeat stories and quotes from young engaging union members from a wide variety of workplaces and ethnic backgrounds.

The unions' websites are becoming increasingly sophisticated and are indicative of the very contemporary approach that unions are taking to attempt to foster a very positive image with their target audience.

Along with traditional themes such as improved pay and benefits, job security, respect and dignity, these websites also point out the social action being taken by trade unions, whether it be in areas such as health and safety, employment diversity, social responsibility through charitable programs. Today's trade unions are trying a multi-faceted marketing approach.

You are invited to review websites such as that of the United Steelworkers of America at www.uswa.ca, the Canadian Auto Workers at www.caw.ca and the United Food & Commercial Workers at www.ufcw.ca. This list is by no means exclusive or exhaustive but it provides an indication of the messages being sent out by unions to both their current members and, more importantly, potential members.

A somewhat more negative but nonetheless innovative approach is displayed on the website of the American Federation of Labour, www.aflcio.org. One portion of it, EYE ON CORPORATE AMERICA, through both statistics and interactive games, very skilfully attacks not only blatant Enron-style mismanagement but also exorbitant salaries paid to some Fortune 500 CEO's.

The Certification Process

It is useful to look at the certification process under the Ontario Labour Relations Act. Applications for Certification are determined by votes of all applicable employees; the vote is supervised by a returning officer of the Ontario Labour Relations Board, with scrutineers representing the Applicant Union and the Respondent Employer, much like municipal, provincial or federal elections.

If the Applicant Union has signed up as members more than 40% of the employees in the bargaining unit it claims, it is entitled to a vote. The Ontario Labour Relations Board makes the 40% determination based on the union's membership evidence and its estimate of the number of employees eligible for the proposed bargaining unit. As part of its Response, the Employer can dispute the union's proposed bargaining unit and also the estimate of the number of employees eligible to vote, but this dispute will not delay the taking of the representation vote; it will, however, often delay the actual counting of the ballots.

Time is truly of the essence! An employer, upon receiving notification of a union application, typically late Friday afternoon, often before a holiday weekend, has two business days to file its formal Response, including assembling and providing an alphabetical list of relevant employees.

The vote itself will be held, except in unusual circumstances, within five working days of the Application for Certification. Needless to say, this is a busy five-day period! A proper Response must be completed and filed with both the Applicant Union and the Ontario Labour Relations Board, legal advice should be obtained both with respect to the response process and the parameters of a legally-defensible message to employees who are going to be voting and the message, including content and delivery, must be crafted.

The vote will be conducted during working hours in a relatively quiet location on the premises. Enough polling times will be selected to give everyone the opportunity to vote.

At the conclusion of the vote, unless there is a significant dispute on the appropriate bargaining unit or the eligibility of certain disputed voters, the ballots will be counted by a representative of the Board in the presence of employer and union representatives.

After the counting of the ballots, the parties' representatives will be asked to sign a form indicating that they agree that the vote was properly conducted. This is a very important step in the process - all the more so because it seems fairly routine.

The preceding paragraphs are an extremely brief description of the Application and Response process, including the vote. The brevity of the description should not be misconstrued - it is not a simple process and there are many opportunities for pitfalls during the very short five-day time period from Application to Response to Vote to Counting the Ballots.

A review of some decisions of the Ontario Labour Relations Board on what appear to be technicalities but, nonetheless, created irreversible mistakes, helps to illustrate the importance of knowledgeable decision-making at every step in this fast-tracked process.

Ontario Labour Relations Board Caselaw

The Ontario Labour Relations Board has taken an extremely rigid position on two key areas of the Certification process: the timeliness of filing materials, especially Response and employee lists that form the basis of voters' lists, and, on signing off the Board's Certification Worksheet and Form B-86, Certificate of Conduct of Vote after the polls has closed.

On the issue of the timeliness of filing a Response, the majority of the cases have occurred in the construction industry. It is not unusual for individual construction employers to be busy, hardworking and astute business people. On the other hand, they often spend little time in the office and have a very lean management structure. This has often come back to haunt them!

The basis of the Board's rigidity is contained in Rules 41 and 42 of the Board's Rules of Practice:

      "41.      If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice.

 

      42.      No person will be allowed to present evidence or make representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable."

It rarely considers it advisable. In one decision, Summit View Homes Limited, the Board reflected with some accuracy but little sympathy on the circumstances of a small entrepreneurial employer receiving an Application for Certification: 

"The employer may well find that it is surprised by the application. It may feel that the union has had the leisure to pick its time and proceed in a time frame which allows it to act in an orderly fashion. The employer has two days to respond, and those two days may be a time when other pressures on the employer's time are also acute. This may to some extent be true, although the difficulty of responding should not be exaggerated. An Application for Certification by a union is not an insignificant event for an employer. Much as no one is enthusiastic about being a responding party in an form of legal process, such process must be attended to promptly. The two-day period is adequate to compile the information required and submit a response. The two-day time period may result in an inconvenient rearranging of the tasks to be accomplished in two days, but this inconvenience is less significant than the competing interests which the Board's process reconciles in conducting a representation vote.

 

It is true that in ensuring the employer has all possible information and relevant forms, the union will serve a lot of paper on the employer. These documents do, in fact, contain all the information any party needs to respond to an Application. It may well be difficult for a person unfamiliar with the process to digest all of this information in the short time available."

A seminal case on this issue is Iori Plaster & Drywall Contractors Ltd. The Board refused to allow an employer to file its Response, and the employee list, two days after the filing date and a day before the vote. The union filed a list of four employees; the employer filed a list of 14 employees; 10 employees tried to vote. Only the four employees claimed by the union had their votes counted.

There are several interesting aspects of this case.

The Board pointed out that the employer had the opportunity to be aware of its need to make a full Response within two days. In the package of materials which the Responding employer receives from the Applicant trade union are included:

(a)      completed copies of the Application;

(b)   a blank copy of the form sent by the Board for responding to the Application including              employee lists;

(c)   a completed copy of the Board Form, Notice to Employer of Application for Certification;

(d)   a copy of Board Information Bulletin No. 1 - Certification of Trade Unions;

(e)   a copy of Board Information Bulletin No. 3 - Vote Arrangements;

(f)   a copy of Board Information Bulletin No. 4 - Status Disputes and Certification Applications; and

(g)   a copy of Part III of the Board's Rules of Procedure.

In the midst of all that information, at page 6 of a six-page Form, in the fourth paragraph, the tenacious and diligent employer will read: 

      "IF YOU DO NOT FILE A RESPONSE TO THE APPLICATION OR OTHER DOCUMENT IN THE WAY REQUIRED BY THE RULES, THE BOARD MAY NOT PROCESS YOUR RESPONSE, YOU MAY BE DEEMED TO HAVE ACCEPTED ALL THE FACTS STATED IN THE APPLICATION, AND THE BOARD MAY DECIDE THE CASE ON THE MATERIAL BEFORE IT WITHOUT FURTHER NOTICE."

Similarly, employees are deemed to have notice of an opportunity to object to their name not being on a voter's list assuming they work their way to the third page of a four-page Notice to Employees to be posted in the workplace.

It is also interesting to note that the Applicant trade union in the Iori case filed its Notice of the Application to the employer on a Friday afternoon addressed to "Secretary at Office". Not surprisingly, it did not come to the attention of the operator of the business until the following Monday!

The Iori case has been followed by the Board in several decisions including Summit View Homes referred to earlier.

In one case, because of a very unusual fact-specific issue, the Board did soften the impact of Iori. In New Generation Group, again the Board had little sympathy with an employer filing a Response late but before the actual vote. Again, it adopted the union's proposed list for the vote, in this case two persons. However, because the employer belatedly raised the question of whether these two individuals were, in fact, employees, the Board determined that this provided a limited exclusion to its normally firm policy.

There is another point of interest in this case.

As part of the normal vote process, if an Application and a Response are filed in a timely manner, a Labour Relations Officer will consult with the both the union and the employer about pre-vote procedures - place of vote, time of vote, etc. In this case, the union was contacted but the employer, because it had not filed a Response, was not contacted by the Labour Relations Officer. The Board did not appear troubled by this.

There have also been problems as a result of one of the parties not making a timely objection on an issue at the time of the vote.

In Torcom Construction, the Applicant Union claimed that there were two persons eligible to vote in a certification proceeding. The employer claimed there were 13 employees but did not include one of the two employees claimed by the union when it submitted its employee list. In this instance, the company had filed a Response within the two-day time strictures.

The Labour Relations Officer used the employer list of 13 persons and, while the union representative objected to the list of 13, he did not specifically request the addition of the person on its employee list which was not on the employer list. As well, at the vote, the union did not seek the inclusion of this missing person's name. The person in question did not attend to vote.

Subsequently, after the vote, with the ballot box sealed (because of the discrepancy between the union's proposed list of two employees and the employer's proposed list of 13 employees), the union sought to have the list amended with the inclusion of the missing name. The Board refused stating bluntly: 

"While there is no doubt that the failure of the Carpenters to add Yuriy Shmyglya's name to the list was inadvertent, list issues are matters the Board expects that any experienced and reasonably diligent trade union would attend to ... Timelines are short in an application for certification and the applicant should be vigilant during that time to protect its interests. It is not enough to assume that it can simply pick up the pieces afterwards."

And, further, 

" ... the Act provides for quite short time periods within which certain steps must be taken in an application for certification.

 

It is also necessary to require some sort of finality to steps in an application for certification where the time limits are, by statute, short. In the long-run, the Board's ability to deal with applications for certification in an efficient and expeditious fashion, requires that parties adhere to the very tight time limits the process requires. To permit an endless process of allowing the parties to raise new issues, particularly list issues, will inevitably compromise the Board's ability to fulfil its statutory mandate.

 

On occasion, the Board has refused to permit parties to alter their position in certification matters, even where a step was taken inadvertently and in error, precisely because of that need for finality and certainty in the various steps of the certification process." 

The Board made it quite clear that neither an Applicant Union nor a Responding Employer can expect relief after the fact: 

      " ... there will be times when the final date for addressing a list issue is earlier than the date of the representation vote. However, the day of the vote will be the very last day on which the Board will permit any party to seek to add a previously identified name to the list of persons in the bargaining unit." 

At the vote, both parties will have scrutineers to confirm that the person attempting to vote is in fact eligible to vote and, after voting is completed, each party will have a representative at the count who may or may not be the same person as the scrutineer. A Certification Worksheet will be completed and signed off. This signing-off is critical!

In a relatively recent but already frequently referred to decision, Midtown Meats Cold Storage, the Ontario Labour Relations Board refused to allow the Applicant Union to resile or back out of the signature on the Certification Worksheet of its representative at the counting of the ballots.

The background facts are informative.

There was an early morning poll and a mid-afternoon poll. Between the two polls, the union lawyer wrote a letter alleging breaches of the Ontario Labour Relations Act by the employer at the earlier poll.

The second poll proceeded, the ballots were counted and the union lost by a significant margin. A union representative signed both a scrutineer's form attesting to the fairness of the balloting and the Certification Worksheet agreeing to the dismissal of the Application for Certification.

After the vote, the Labour Relations Officer duly distributed the normal Board Notice of the Results which noted, as normal, that " ... representations concerning any matter relating to the Application for Certification which remains in dispute, or any matter relating to the representation vote, the accuracy of the report ... " must be received within one week.

The union reaffirmed and added to its allegations filed on the day of the vote but did not file its representations until after 5:00 p.m. on the last day for filing. They were deemed by the Board to have filed one day late.
     

The Board accepted the union's version of its representative's signature being based on mistake of the consequences of signing the Certification Worksheet. She felt that her signature had no impact on the allegations and complaints which had been filed separately.

The Board did not agree. It stated: 

"The Board is not prepared to permit the union to resile from its agreement that there were no further issues in the Application for Certification, and that it could be dismissed ... The union is essentially arguing that Ms. Wesley did not appreciate or intend that her agreement would compromise the union's ability to complain about the employer's alleged misconduct and seek relief pursuant to section 11. The Board is regularly faced with parties arguing that they did not appreciate the full ramifications of their action ... The Board's response has consistently been that the parties are presumed to know the labour relations repercussions of the decisions they make, and in particular, of the agreements they reach." 

Similarly, the Board is not influenced by arguments of the prejudice or lack of prejudice that may flow from rigid adherence to its policy. In a recent decision, the Board emphasized: 

"In terms of prejudice ... the existence or lack thereof of prejudice to the other party is not the test that the Board applies in determining whether a party may resile from its agreement." 

In short, a signature is binding, a deal is a deal and an agreement is final!

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