When an employer receives a certification application, the countdown clock begins. If the employer was unaware that an organizing campaign was underway, the employer will have only five days to formulate a plan and implement it. This means that employers are often left scrambling, which could result in certification of the union or an unfair labour practice complaint.
Recently, this issue was highlighted in an article by the Toronto Star, which discussed the certification of housekeepers at the Trump Hotel in Toronto. According to the article, the employer:
conducted its campaign through a number of different means, including surveillance in and outside the workplace, anti-union letters, conversations between managers and employees, the destruction of union materials in an intimidating manner in front of the employees, the purposeful disruption of work schedules to make it more difficult for people to exercise their rights under the Act and with direct threats of loss of income.
If the allegations in the article prove to be true, this employer could face liability stemming from unfair labour practices or penalty certification.
Below is some information for employers to help avoid getting caught off guard and forced into the media’s spotlight.
The Certification Process
The certification process formalizes the collective bargaining relationship. It is important to understand this basic framework in order to create an effective union avoidance strategy.
Generally speaking, the process for certification in Ontario involves three steps:
(1) The Organizing Drive
The first step is the union organizing drive. As much as possible, the organizing drive will be undertaken by the union in secret.
During this period, the Union will attempt to gauge the employees’ interest. Most union organizing campaigns involve signing up employees as union members. Generally speaking, this is done by filling out union cards.
In many cases, employers are entirely unaware that this step is occurring despite the fact that a union organizing drive can last for months (or in some cases even longer).
(2) The Application for Certification
After the union has spent time organizing and ensuring it has the requisite support of the employees, the union will file a formal application for certification.
An employer must receive a copy of the application on the same day that the application is filed with the Board. The application will include:
- a written description of the proposed bargaining unit that the union seeks to represent; and
- an estimate of the number of individuals in the unit.
The employer then has two business days to file a response, which can include, among other things, a different bargaining unit description or a different number of employees in the proposed bargaining unit. As far as the bargaining unit scope goes, the employer may disagree on the basis that the description is too broad, contrary to the physical or administrative structure of the employer or puts employees together that have vastly different skills.
Notably, once an application for certification has been made, an employer cannot alter the terms and conditions of employment.
The Ontario Labour Relations Board will hold a hearing to determine the appropriate voting constituency to be used for a representation vote based on the descriptions proposed by the union and the employer.
(3) The Certification Vote
If the union was able to show support of at least 40% of the employees in the bargaining unit at the time the application was filed, the Board will set a date for a representation vote.
Typically, the representation vote will be held within five business days of the application for certification. The vote is held by secret ballot. If there are any concerns about the way the vote was conducted (including any disagreement over whether or not an employee should be voting) the Board will hold hearings to resolve those issues.
If over 50% of the employees who cast ballots vote to unionize, the union will be certified and become the unit’s exclusive bargaining agent.
Why Do Employees Join Unions?
One of the best ways to dissuade unionization is to understand why employees want to unionize. Unfortunately, there does not seem to be a simple answer to the question. Although increased remuneration is typically cited as the primary rationale, there are a number of reasons why employees might decide to unionize. For example employees may believe that:
- working conditions are poor;
- they lack job security;
- management does not respect them; or
- there is undue favouritism in the workplace.
Notably, three of these complaints were specifically outlined in the Trump Hotel article (while things like wages and sick days were quickly passed over).
Typically, it is these types of concerns that unions seek to capitalize on and leverage into certification. Paying attention to these concerns and addressing them when they arise will go a long way towards averting union intervention.
Early Warning Signs of Union Activity
The earlier an employer can identify union activity, the more time they will have to plan and prepare to respond to the organizing campaign. However, an unwary or disconnected employer will find this particularly difficult since unions endeavour to organize in secret until they are ready to apply for certification. While the particular signs of union activity will vary, some examples include:
- increased inquiries about company policies or employee responsibilities;
- requests for employee schedules or lists;
- employees adopting a new, technical vocabulary which includes such phrases as “unfair labour practice”;
- confrontational or dismissive attitude towards management (including increased complaints, disobedience or insubordination, or absenteeism or lateness); and
- unusual behaviour, including employees reporting to work very early or remaining at work after their shifts are over.