Non-union employers in Atlantic Canada's construction industry should be aware of the relative ease with which they can become unionized and the significant impact that unionization can have on the operation of their businesses.

The certification of union as bargaining agent rules

In Atlantic Canada unionization in the construction industry is easier because secret ballot representation votes are rare. 

The following issues that generally arise in a construction industry certification application often take on added significance because there is no secret ballot representation vote:

  • Does the work fall within construction industry work? Construction industry work has a unique meaning in the labour relations context. If non-unionized employees perform work in the construction industry, employers should learn sooner rather than later what they can (and cannot) do in response to union organizing.
  • What were the employees doing on the date of the application and how long were they doing it for? Detailed and accurate record keeping of what work was performed and the length of time each employee performed such work on the date of the application usually assists the employer.
  • Does the work fall within the union's jurisdiction? Non-union employers should be aware that unions often choose to file certification applications on atypical work days. For example, if a construction industry employer usually has a workforce of 15 employees who perform work that falls within a union's jurisdiction on a daily basis and the union only has three employees as members, the union will likely wait to file a certification application on a day when only two - four of the total number of employees are working and the number of union members working on that day constitute a majority; under such a scenario, the union wins the "numbers game." It is irrelevant that the employer usually employs 15 employees and the number of employees working on the date of the application is unrepresentative of the employer's workforce and business.
  1. Nova Scotia 

The contrast between the certification rules in the non-construction industry and construction industry is most pronounced in Nova Scotia. In the non-construction industry, a secret ballot representation vote is mandatory. In the construction industry, certification is generally based upon membership evidence (i.e. membership cards or membership cards and dues). Secret ballot representation votes, although mandatory in limited circumstances, are rare. 

Certification in the construction industry is focused on what occurs on the date the union files an application for certification with the Labour Board. 

In order for the application to be successful, the union must demonstrate that it represents a majority of employees in the appropriate bargaining unit on the date of the application. It does this by presenting membership evidence required by the regulations. Such membership evidence must be relatively recent (i.e. collected within three months prior to the date of the application). 

The members of the appropriate bargaining unit will be those employees who, on the date of the application, perform construction industry work that falls within the union's jurisdiction for the majority of their working time. For example, if an employee works two hours on the day of the application and spends one hour and five minutes performing construction industry work that falls within the applicant union's jurisdiction, this employee will be considered a member of the bargaining unit. 

If the Board is satisfied that a union has, as members in good standing, more than 50% of the bargaining unit members, the union will be certified without a secret ballot representation vote. A secret ballot representation vote will only be conducted if not less than 35%, but not more than 50% of the bargaining unit are members in good standing.

  1. New Brunswick 

The rules for certification in New Brunswick are similar to that of Nova Scotia; certification in the New Brunswick construction industry is based upon membership cards. However, in New Brunswick, the membership card only has to cost a minimum of $1 and the application will be unsuccessful if the union does not represent a majority of employees in the appropriate bargaining unit working in the craft on the date of application. There is generally no secret ballot representation vote and the union may be automatically certified without a vote.

  1. Prince Edward Island 

The rules for certification in the construction industry in Prince Edward Island are similar to those in Nova Scotia and New Brunswick. 

The day a certification application is filed is key. The Labour Board will consider only what work employees performed for the majority of their time that day. The question is whether the majority of work performed on the date of the application meets the definition of "construction industry" and falls within the trade jurisdiction of the union. 

When a union applies for certification, there is rarely a vote. So long as the union can establish, through membership evidence, that the union represented a majority of the employees in the bargaining unit on the day the application was filed, the Board approves certification. The certification order then triggers collective bargaining within 10 days, or at a time agreed to by the parties. 

The only available recourse for an employer is to apply to the Board for a review of the certification order. A review must be requested within 10 days of the order being issued. 

Like with any union organizing, employers cannot interfere with the formation of a trade union. Employers cannot change terms and conditions of employment and cannot transfer or lay-off employees that are organizing. As an example, the Board recently held that the introduction of a pension plan after the certification application was filed constituted an unfair labour practice (see MacLean Construction Ltd. v. International Brotherhood of Electrical Workers, Local 1432, Decision 13-008 and 13-012).

  1. Newfoundland and Labrador 

On June 27, 2012, the Newfoundland and Labrador Government introduced substantial legislative amendments to the Labour Relations Act. The critical and most controversial amendment from the perspective of employers was to enact a card-based certification process. 

Prior to these amendments, Newfoundland and Labrador was the only Atlantic Canadian province to require a secret ballot representation vote in the construction industry. Now, certification of a union becomes automatic when 65% of employees sign union membership cards. When at least 40%, but less than 65%, of employees sign union cards, a certification vote by secret ballot is still required. The secret ballot would involve those that were employed at the time of the certification application. 

This "automatic certification" process effectively removes an employer's ability to lawfully communicate with its employees about the certification application when the 65% threshold is reached. 

In the construction industry context, the Labour Relations Act contains a specific provision which requires the Board to define a bargaining unit in terms of a geographic area, if the application is framed in that fashion. While the process is somewhat technical, the effect of this provision is to make certification in the construction industry, in a specific geographic area, slightly easier for unions by eliminating certain legal arguments regarding "community of interest", which are sometimes made by employers. 

Employers should also be aware of the Special Project provisions. A Special Project is an undertaking for the construction of works designed to develop a natural resource or establish a primary industry that is planned to require a construction period exceeding two years. In Newfoundland and Labrador, the Special Project designation is generally reserved for "mega-projects". Currently, Special Project Orders govern construction of the Hebron Gravity Based Structure at Bull Arm, the construction of the Vale Hydromet Facility in Long Harbour, and various aspects of Muskrat Falls. 

Work being carried out under a Special Project Order is automatically subject to a project labour agreement, regardless of whether the actual employer is unionized. Strikes are prohibited for the duration of a special project. 

As well, once a Special Project Order has been prescribed, employees who work under the collective agreement at the special project site are not able to vote to determine whether a trade union will be certified. In other words, a union is not able to use those unionized trades working at a Special Project site when they are attempting a certification drive of an otherwise non-union employer.

The impact of unionization in the construction industry

Non-union employers should be aware of the significant restrictions that unionization imposes:

  1. Lack of control over collective bargaining 

   The construction industry is generally divided into sectors or divisions. The sector in which the vast majority of construction industry work falls is the commercial and industrial sector. In the four Atlantic Provinces, the commercial and industrial sector (or division) is generally governed by collective agreements that have been negotiated by an accredited employers organization and the construction industry unions ("Accredited Employers Organization Collective Agreements"). Upon certification, the employer must apply the Accredited Employers Organization Collective Agreement to all industrial and commercial sector work that falls within the jurisdiction of the union(s) which certified the employer. In general, Accredited Employers Organization Collective Agreements tend to provide very generous benefits and wages and generally do not take into account the employer's size, the types of projects that the employer is engaged in, or the employer's competition.   

  1. Hiring hall based hiring 

Generally, collective agreements in the construction industry provide for hiring hall type provisions that significantly restrict an employer's ability to "name hire" (i.e. hire the employees who were employed by the employer previous to the certification). 

  1. Jurisdictional disputes 

Construction industry unions often engage in work jurisdictional disputes (i.e. unions fight over work jurisdiction). Jurisdictional disputes are common in the construction industry because there are numerous work jurisdiction gray areas (e.g. stripping forms have been considered by Boards to be work normally performed by members of labourers and carpenters). Labour relations legislation in each Atlantic Province provides a dispute resolution process. However, jurisdictional disputes generally disrupt projects, upset employers' customers, and are expensive and time consuming to litigate. 

  1. Expedited arbitration 

The Nova Scotia Trade Union Act provides that when a dispute or difference arises which the parties are unable to resolve, they must agree by midnight of that day on the appointment of an arbitrator. If they cannot agree, the Minister of Labour and Workforce Development shall appoint an arbitrator and the decision of the arbitrator must be given within 48 hours of their appointment unless the parties agree to an extension. 

In New Brunswick, there is also process for expedited arbitrations which either party can apply for by requesting that the Minister appoint an arbitrator. The arbitrator must begin hearing the case within 28 days. If requested to do so by the parties to the dispute, the arbitrator shall (a) if possible, issue an oral decision within one day after the conclusion of the hearing, and (b) issue to the parties and file with the Minister written reasons within 21 days after the conclusion of the hearing. 

In Newfoundland and Labrador, there is a 48 hour arbitration option for jurisdictional disputes.

What this means to you

This article is not intended to provide a complete summary of the complicated rules that govern construction industry labour relations in the four Atlantic Canadian provinces. However, the above summary demonstrates that non-union employers in the construction industry should be mindful of the risk of certification and seek advice on strategies that lessen the likelihood of certification but do not run afoul of labour relations legislation.