Given the significant impact imposed upon a business’ bottom line and ability to manage the workplace, non-union construction industry employers must remain vigilant to the threat of union certification. This is especially true when employers make use of temporary workers on a day-to-day basis, as this may increase the risk of union certification.

Union Certification Background

As previously discussed in Breaking Ground, in the construction industry, after a union submits signed union cards showing that 40% of employees in a proposed bargaining unit support the union, the Ontario Labour Relations Board (“OLRB”) will order a secret ballot vote. If a majority (50% plus one vote) of ballots cast are in favour of unionization, then the Board will certify the union as the employees’ exclusive bargaining agent.

In the Ontario construction industry, however, union certification may also occur without a vote taking place at all. Instead, unionization can be achieved by way of “card-check certification;” if a union is able to show that more than 55% of employees in the bargaining unit have signed union cards in support of the union, then the OLRB will certify the union without even holding a vote.

Temporary Labour Risks

Employers in the construction industry should be aware that whether an employee is permanent or temporary is of no consequence in applications for certification before the OLRB. This is because the OLRB views employment within the construction industry as characterized by short-term jobs and fluctuations in employee complement. Since the Labour Relations Act requires determinations to be made as of a specific point in time (based on the employees present and working on the application date), the OLRB does not consider an employee’s length of employment or prospect for future employment with the employer as being relevant to whether an employee is to be considered in making the requisite determinations under sections 8 (voting constituency) and 128.1 (card-based certification). The key is whether the employee was at work in the bargaining unit on the date of the application.

For clarity, this means that temporary workers will be relied upon for the counting of cards in support of the union to meet the 40% and 55% thresholds, in addition to allowing those temporary workers to vote (if applicable) in a certification vote. In other words, temporary workers, who may not otherwise be employees for other purposes related to employment-related entitlements, will be considered employees for purposes related to certification. This also includes “salts,” which are union organizer plants within an organization or from a temporary labour ready service that are engaged by the unions to organize/unionize workplaces.

Takeaways for Employers

To avoid the consequences of union certification, we consistently advise employers to maintain positive relations with all of their employees. Maintaining a positive and direct relationship with your employees is the single-most important thing you can do to avoid union certification.

Temporary workers may be more likely than regular employees to sign a union card or vote in support of unionization. To reduce this risk, if you do not have the manpower for a particular project, consider whether it is possible to subcontract out that portion of the work. However, in doing so, it is vital to maintain a true independent contractor relationship. Essentially, you must abdicate all de facto control over the work, management of employees of the subcontractor and terms and conditions of said employment. By truly subcontracting out the project’s work, you will not be considered the employer of the subcontractor’s employees, whether permanent or temporary, and, therefore, the subcontractor’s employees will not be counted in an application for certification.

If you have no choice but to use temporary labour ready workers, it is recommended that you have a longstanding and positive relationship with a temporary staffing agency that maintains a steady and familiar complement of workers.

In conclusion, construction employers need to remain vigilant in recognizing union organizing efforts, maintain a positive complement of employees on a day-to-day basis and continue to communicate directly with employees.

If faced with an application for certification, employers should be aware that deadlines to respond are very short and extensions of time to respond are very rare. An employer will only have two business days to respond and contest a union’s application for certification. Given the short timelines involved, and the fact that unionization can significantly impact the viability of a construction employer’s operations, it is crucial that employers remain aware of developments in the workplace, consider alternatives to the use of temporary labour and seek out guidance from expert legal counsel on a pre-emptive basis.