The purpose of this Information Bulletin
is to provide general information and guidance about the certification process.It is not a legal document and is subject to the
provisions of the Labour Relations Code, the
Labour Relations Regulation, the Labour Relations Board Rules and the published decisions
of the Board.
This Bulletin consists of five parts:
1.
The
union's application for certification of unorganized bargaining units 2.The employer's role during the certification
process 3. The Board’s certification process 4. Certification of dependent contractors 5. Certification applications and the build-up principle
1.Preliminary Steps for Certifying Unorganized
Bargaining Units
Initial
Steps
For a union already established and
recognized in British Columbia, the first step in the certification process is to obtain
valid signed memberships or up-to-date dues payments from the employees in the proposed
bargaining unit.Membership application
information is confidential to the union and the Labour Relations Board.
Criteria
for Membership
The Board has interpreted Labour Relations
Regulation 3 to require the following minimum criteria for establishing membership in good
standing:
·a membership
application must be signed by the individual personally and dated at the time of
signature.Cards cannot be signed by
"proxy" on behalf of an individual.
·the name of the union
on the membership card should show the local number, if applicable, and should be the same
as the name and local number on the application.
·a membership card
signed on or after January 18, 1993 must contain the following statement:In applying for a membership I understand that the union intends to apply to be
certified as my exclusive bargaining agent and to represent me in collective bargaining.
·The membership card
must have been signed within 90 days of the application for certification, or active
membership must have been maintained by dues payments.
·Cards will be accepted
for the purposes of an application if they are signed and submitted to the Board before
midnight on the day the application is filed. The day the application is received by the
Board is counted as the 90th day.
·The card must be dated
in such a way as to ensure that the Board is able to clearly determine when the card was
signed and that it was dated at the time of signature.It is clearer to write the month rather than use numerical dating.If numerical dates are used, all cards submitted
should use the same system of numerical dating.For
example,"07/09" could be either
July 9 or September 7.
·In the case of a
transfer card from another local of the same union, the Board has held that ifthe transfer card certifies that the individual is
a bona fide member of the issuing local, and it is signed by the member, it will
meet the requirements of the Code, providing there is evidence of continued payment of
dues to the local in British Columbia.
Additional
Requirement:Regulation 3.1 Construction
Industry
In addition to the above-noted
requirements, a union making an application for certification in the construction industry
on the basis of active membership must attach a signed expression of support from those
members in the following form:
I
support the application by (Name
of trade union) for the certification applied for.
(Name
of employee)
(Date)
This form must be signed and dated by the
employee within six (6) months of the application for certification, and will apply to an
application for certification for the employer whom the employee is working for on the
date the form is signed.
Rigorous
Enforcement
Board decisions have established that the
above-noted requirements for valid membership will be rigorously enforced.The statement on the membership card which is
specified in the Regulation should not be modified in any way.
Bargaining
Unit Description
An applicant union should give careful
consideration to the proposed bargaining unit (see the part on the Board’s
Certification Process in this Information Bulletin).The bargaining unit description should accurately reflect the essential character
of the unit applied for.
Applications
To protect against any unnecessary delays,
unions should ensure that their applications are completed fully and accurately. The application
should show the local number of the union, if applicable.
Joint
Applications
Section 20 provides for a joint
application of two or more trade unions for a single bargaining unit.The trade unions making a joint application are
treated as if they are a single union which, once certified, has a separate existence as
the bargaining agent of the employees.
A joint application must be
accompanied by a constitution governing the structure and relationship of the applicant
unions. This constitution must be approved by the Board during the certification process.
Correct
Employer
An applicant should make sure that the
employer of the employees in the bargaining unit is correctly identified and properly
named. This can be verified through a company search with the Registrar of Companies.
Dependent
Contractors
If the unit applied for includes dependent
contractors, applicants should refer to the part on Dependent Contractors in this
Information Bulletin.
Build-up
Principle
If the unit applied for is a new
enterprise, and it is anticipated that there will be a significant increase in the number
of employees and job categories in the future, an applicant union should consider whether
the build-up principle applies (see the part on the Build-up Principle in this Information
Bulletin).
Revocation
Labour Relations Regulation 4 provides
that an individual can revoke a membership card by delivering a written, signed statement
to both the union and the Board on or before the date of the certification application.The statement should clearly indicate that the
individual wishes to cancel or revoke his/her membership in the union.
If a revocation statement is mailed,
couriered or hand-delivered, it must be received by the union and the Board before the
offices close on the day the application is received.If it is faxed to the union and the Board, the fax machines must show that it was
received before midnight on the day the application is received.
A revocation must be dated and must
show the proper name of the union, including the local number, for which membership is
being revoked.When submitting an application
for certification, a union should advise the Board of any revocations of membership it has
received.
New
Union
A new organization claiming to be a trade
union is required to prove that it is a "trade union" as defined by the Code.It must show that it is local or provincial in
character and is a viable entity capable of carrying out its stated purposes.The Board will carefully scrutinize the procedures
followed in establishing the new organization.See
Bulletin No. 1A for more information.
Jensen Mushroom Farms Ltd., BCLRB No. 53/80, [1980]
3 Can LRBR 165 (new union)
KGK Construction Ltd., BCLRB No. B18/96 (joint applications by more than one
local)
2.The
Employer's Role During the Board's Certification Process
Law
The Labour
Relations Code states that every employee is free to be a member of a trade union and
to participate in its lawful activities.The
decision as to whether or not a group of employees wishes to be represented by a union is
entirely the decision of those employees.
Right
to Communicate
Section 8 of the Code refers to the right
of an employer to communicate with employees about representational matters:
8.
Subject to the regulations, a person has the freedom to express his or her views on any
matter, including matters relating to an employer, a trade union or the representation of
employees by a trade union, provided that the person does not use intimidation or
coercion.
Section 9 states:
9.A person shall not use
coercion or intimidation of any kind that could reasonably have the effect of compelling
or inducing a person to become or to refrain from becoming a member of a trade union.
Given that section 8 is a new Section of
the Code, the scope of the right to communicate will be determined in future
Board cases.
Unfair
Labour Practices
If an employer becomes aware of union
organizing activities among its employees, the employer should become acquainted with the
limitations imposed by the Code on its activities.These
are generally referred to as the "unfair labour practice" provisions of the Code
(see Information Bulletin No. 2).In
addition, the employer may wish to review Section 7 of the Code which outlines the
limitations on the union's activities during organizing.
Business
as Usual
While an application for certification is
pending, an employer must continue normal business practices.This means that no unscheduled changes in rates of
pay or other terms or conditions of employment can be made during this period without the
Board's written permission.
Leading
Cases
Refer to Case References: Information
Bulletin No. 2 (Unfair Labour Practices)
3.The Board’s Certification Process
Procedure
When a union has applied to be certified
as the bargaining agent for a group of employees, the employer will receive a Notice of
Certification Application, a copy of Questions
and Answers for Employees Regarding the Union Certification Process for posting, and a
copy of the Employer's Guide to the
Certification Process for the employer's own information.The employer is required to post the Notice in a
prominent location in the workplace for 5 consecutive working days.
IRO
Investigation
After a properly completed certification
application has been received by the Board and a Notice of Certification Application sent
to the employer, an Industrial Relations Officer will conduct an investigation.The IRO will examine the employer's payroll
records and then review the union's membership evidence (signed application cards and,
where applicable, record of dues payments) to determine membership support.Membership support is confidential to the Board.The IRO will also inquire into anything else
relevant to the union's application.
Certification
Vote
The IRO will tentatively schedule a
certification vote and, following receipt of the IRO report the Board will direct the IRO
to conduct the vote if it appears the union has at least 45% of the employees in the unit
as members in good standing.
Hearing
The Board will set a hearing date within 7
or 8 days of the receipt of the application for certification.At the hearing, the employer or its representative
will have an opportunity to raise any objections to the application.The questions to be addressed at the hearing and
the kind of objections which may be raised are outlined below.
IRO
Report
Prior to the Labour Relations Board
hearing, the Industrial Relations Officer will provide the Board with a report on the
investigation, including a confidential portion dealing with membership evidence.The Board will provide copies of the report,
except the confidential portion, to the parties in advance of the hearing. IRO reports can
only be introduced as evidence in proceedings before the Board under very limited
circumstances.
A request by the union for
disclosure of the employer's list of employees will usually only be granted if the IRO
report indicates that the union has attained the 45% threshold for a vote.
Consolidation
If there are applications alleging unfair
labour practices by either the employer or the union, the Board may consolidate them with
the certification application, to be dealt with at the same hearing.
Informal
Discussions
Before proceeding with the formal hearing,
the Board may invite the parties to meet in an informal session with one of its Special
Investigating Officers.These informal
settlement discussions are always "without prejudice".Anything said by a party cannot subsequently be
raised at a formal hearing.However, should
the parties reach agreement on any issues during the informal, the agreement is binding.
Often agreement is reached on all issues.In other cases, the issues in dispute are
narrowed.For this reason the informal
process assists the Board and the parties in making efficient use of time and other
resources.
Questions
to be Examined
Unless there is a question of jurisdiction
(e.g., whether the employer's business is under provincial or federal jurisdiction) there
are usually only three issues examined at the certification hearing, apart from any unfair
labour practice allegations which may have been consolidated.The three questions are:
·Is the applicant a trade union as defined
in the Labour Relations Code?
·Is the group of
employees applied for an appropriate unit for collective bargaining?
·Does the applicant
trade union have the necessary membership support within the unit to have the secret
ballot vote ordered and counted?
Trade
Union Status
There are three main issues related to
trade union status:
·If the applicant
organization has not previously been recognized as a trade union under the Code, it mustsatisfy the Board that it has been properly
constituted and that it has as one of its primary functions the representation of
employees through collective bargaining.Informal
employee associations which do not meet these requirements will not be recognized.
·The applicant
organization must be local or provincial in nature.
·The applicant
organization cannot be employer dominated or influenced in any way.
The Board will carefully scrutinize
the formation of new organizations seeking trade union status.See Bulletin No. 1A for more information.
Appropriateness
The question of whether the unit applied
for is appropriate for collective bargaining can be complex. There are two fundamental
principles in the Code regarding the determination of bargaining unit appropriateness:
access to collective bargaining and industrial stability.These principles are always considered in any determination of appropriateness.
The Board has expressed a preference for
all-employee units. However, it will initially certify a unit which is something less than
all employees if a rational and defensible line can be drawn around the proposed unit and
a community of interest is shared by the group of employees.Access to collective bargaining is the most
important principle in determining appropriateness on an initial application.In Island
Medical Laboratories Ltd., BCLRB No. B308/93, the Board held that community of
interest in an initial certification with an employer is determined by the following four
factors:
·similarity in skills,
interests, duties and working conditions,
·the physical and
administrative structure of the employer,
·functional
integration, and
·geography.
The Board has since determined that
functional integration is the most important community of interest factor in dealing with
an initial application for certification.
In the case of subsequent
applications, where there is already at least one collective bargaining relationship in
place, the community of interest factors are expanded to include the following (for a
total of six factors):
·the practice and history of the current
collective bargaining relationship, and
·the practice and history of collective
bargaining in the industry or sector.
Industrial stability is the most
important principle in determining appropriateness at the second or additional stages of
certification. There is, accordingly, a presumption against multiple bargaining units
which must be rebutted by the applicant union.This
presumption increases markedly with the number of bargaining units and may, for example,
mean that additional employees who wish union representation must be varied into an
existing unit.
Membership
Support
The third question is whether the
applicant union, on the date of application, has 45% or more of the employees in the
bargaining unit as members in good standing, in which case the Board will order the secret
ballot certification vote to be conducted by an Industrial Relations Officer.
If less than 45% of the employees in
the unit are members in good standing, the Board will dismiss the application and if a
vote was held, it will not be counted.
Rejected
Cards
In addition to rejecting membership cards
because they fail to meet the requirements of Regulation 3, the Board may reject a card if
it determines the card does not express the true wishes of the individual concerned.This is normally only done where the Board
concludes:
·there were fraudulent
or illegal organizing tactics,
·the signature was
obtained by coercion or intimidation, or
·misrepresentations
were made which render the card conditional or equivocal.
With respect to the last point, the Board
has ruled that it is an objective test which is applied.There must be a direct connection between a misrepresentation made by the union or
its representative and the decision of the employee to sign the card. If no such
connection is established, a card will not be invalidated merely because the individual
misunderstood how the card would be used.
The Board has also ruled that
rejection of one or more membership cards does not necessarily defeat the application,
unless the Board determines that the validity of the membership evidence as a whole has
been placed in doubt.
Competing
Applications
The following procedures apply where a
properly completed certification application has been received by the Board, and a second
properly completed application is received from a different union within 10 days of the
first application and before the certification hearing on the first application.
If the "competing" applications
are for the same bargaining unit, the Board will normally order a representation vote on
the following basis:
·if both applicants
have membership support of 45%or more, the
ballot will be in two parts.The first
part will ask employees whether they wish to be represented by a union.The second part will ask employees which union
they want.If the majority of ballots cast
on the first part are negative, both applications will be denied.If the majority of ballots cast on the first part
are in favour of trade union representation, the ballots cast on the second part will
determine which applicant is successful.
If the "competing" applications
are for different bargaining units, except for
applications in the construction industry, the Board will prefer the application for
the larger unit and it will be processed first.
In the construction industry, if the
first application is for a traditional craft unit, the Board will process that application
first.If the craft unit is certified, asubsequent all-employee application will be
treated as a raid application under Sections 19 and 21.If a subsequent application is made for the balance of employees not included in
the craft unit, the Board will apply the principles in Island Medical Laboratories to determine
whether a second unit should be certified.
Inclusions
and Exclusions
To determine whether an applicant union
has the required levels of membership support, it is often necessary to resolve questions
as to who is included in or excluded from the bargaining unit.There are four questions which commonly arise:
·whether a person is an
employee as defined in Section 1(1) of the Code (i.e., whether the person is a manager or
is employed in a confidential position relating to labour relations or personnel),
·whether a person is an
employee but should be excluded because he or she does not have a community of interest
with the other employees in the unit,
·whether a person who
was not at work on the date of the application has a sufficient and continuing interest in
the workplace to be included, and
·whether a person was
employed on the date of the certification application.
These four questions are discussed
in detail in Information Bulletin No. 9. The Board will usually attempt to resolve issues
related to any of these questions in the informal process.However, in the absence of agreement, the Board normally only holds a formal
hearing and makes a ruling if the determination will affect whether the threshold for a
certification vote has been reached.If not,
the Board's policy is to leave inclusion and exclusion issues to the parties for
collective bargaining.The Board will accept
an application later if the parties are unable to resolve the issue.
Vote
If the Board orders a certification vote,
it will be conducted by an IRO within 10 days of the date of application.As part of the IRO investigation, a Tentative
Voters List will be prepared.Notice of the
time and place of the vote will be posted.Both
the union and the employer are entitled to have scrutineers at the vote who may challenge
any ballot.Challenges must be made at the
time. Challenged ballots will be double-sealed, pending a determination by the Board as to
their validity, if necessary.Where the Board
considers it appropriate, a mail ballot may be scheduled.
Certification
Granted
If the application is successful, the
Board will issue a formal Certification Order.Either
party may then give the other notice to commence collective bargaining and the parties are
required to bargain in good faith with the objective of achieving a collective agreement.For four months after certification, or until a
collective agreement is reached, the employer may not alter wages or conditions of
employment without the Board's authorization.
Leading
Cases
Island
Medical Laboratories, BCLRB No. B308/93,
19 CLRBR (2d) 161 (defining appropriateness)
Section 1 of the Labour Relations Code defines "dependent
contractor"as:
… a person, whether or not employed
by a contract of employment or furnishing his or her own tools, vehicles, equipment,
machinery or any other thing, who performs work or services for another person for
compensation or reward on such terms and conditions that he or she is, in relation to that
person, in a position of economic dependence on, and under an obligation to perform duties
for, that person more closely resembling the relationship of an employee than that of an
independent contractor.
Section 28 of the Code provides for the
certification of a group of dependent contractors, and for the inclusion of dependent
contractors in a bargaining unit with employees.
Factors
to be Considered
Board decisions have characterized
dependent contractors as being somewhere on a continuum between true employees and
independent contractors. The factors to be considered in determining whether an individual
is a dependent contractor include:
·the type and extent of
control and direction exercised by the employer with respect to such matters as hiring,
firing, discipline, work assignments, and hours of work,
·the organization of
the employer's operations and the degree to which the contractor is a continuing part of
it,
·the way the industry
operates,
·the type of work and
its sources,
·the nature of the
contractor's operations,
·any contractual
arrangements between the parties and others,
·the nature and manner
of compensation and how it is determined,
·the percentage of
income which the contractor derives from the employer,
·the opportunity for
the contractor to make a profit through the exercise of independent entrepreneurial
judgment,
·the contractor's
opportunity for economic mobility, and
·whether the contractor
advertises or solicits customers elsewhere.
The Board has recognized that a
particular individual may be more like an employee in some of the above factors, while in
others resemble an independent contractor.Ultimately,
the Board will balance all the factors in making its determination.
Additional
Factors
Additional questions which the Board has
examined include:
·whether there is a
long-term stable relationship,
·whether the contractor
generally works on a daily basis,
·whether the employer
imposes a set of rules,
·whether the
contractor's ability to obtain licensing depends in any way on the employer's guarantee of
work, and
·whether there are
direct employees of the employer performing similar work and, if so, their terms and
conditions of employment.
Trucking Contractors
In the case of trucking contractors, the
Board has also considered:
·whether the contractor
owns more than one truck and, if so, the amount of time each is driven by the owner,
·if the contractor owns
only one truck, the percentage of time it is driven by the owner and the percentage driven
by a hired driver, and
·whether employer
approval is required with respect to the hiring of drivers or the transfer of vehicles or
licenses.
Taxi
Industry
In the case of contractors in the taxi
industry, the Board has considered:
·whether the license is
owned by the company or by the contractor,
·the extent to which
the vehicle owner drives the vehicle(s) which he or she owns,
·whether the company
has any say with respect to drivers hired by the vehicle owner or drivers to whom the
vehicle is leased,
·whether the company
has rules applying to drivers and whether they apply equally to vehicle owners, and
·the percentage of
income derived from the company's dispatch system.
Newspaper
Deliveries
In the case of newspaper delivery
contractors, the Board has determined that in certain circumstances the fact that the
contractors work only part-time and hold other jobs, not involved in delivery, is not a
barrier to a finding that they are dependent contractors.
Variance
Versus Separate Unit
Where a union applies for certification of
a unit of dependent contractors and there is a certified unit of employees with the same
employer, the Board must determine whether inclusion of the dependent contractors in the
existing unit would be more appropriate.
The Board will first determine whether a
stand-alone unit is appropriate and whether variation into the existing unit is
appropriate.If both are found to be
appropriate, the Board will then examine whether there are any actual impediments to the
dependent contractors being varied into the existing unit.If not, the applicant for a stand-alone unit will bear the onus of addressing the
Board's presumption against multiple bargaining units at a single site.The Board will presume that industrial
stability is adversely affected by a second unit; to rebut that presumption, the applicant
will be required to bring cogent evidence to the contrary.Otherwise, a variance of the existing unit will
be seen as more appropriate and the application for a stand-alone unit dismissed.
Leading
Cases
West
Fraser Mills Ltd.,BCLRB No. B442/93
(dependent contractors in log hauling)
Richmond
Cabs Ltd. and Coral Cabs Ltd.,BCLRB No.
B85/94 (owner/operators in the taxi industry)
Slocan Forest Products, Vavenby Division,BCLRB No. B146/94 (whether to
certify a separate unit of dependent contractors, or vary them into an existing bargaining
unit)
The
Kelowna Daily Courier,BCLRB No.
B233/93 (newspaper delivery drivers)
Prince George Citizen,BCLRB No. B282/94 (newspaper delivery drivers)
5.Certification Applications and the Build-up Principle
Build-up
Principle
A certification application may be
rejected by the Board where the circumstances give rise to the "build-up"
principle.This refers to an imminent
increase in the permanent workforce of an employer to the extent that it affects the
appropriateness of a proposed bargaining unit.
Competing
Interests
The Board has identified two competing
interests in determining applicability of the build-up principle:
·the right of current
employees to have trade union representation, and
·the right of future
employees to have a say in whether they want to be represented by a union and, if so,
which one.
Applicability
The build-up principle is not applicable when the variation in numbers simply
reflects a normal seasonal cycle or when the increases are the result of an expansion of a
long-standing business.
Construction
Industry
In the construction industry, the build-up
principle will only apply when the unit applied for is an all-employee unit.It will not apply when building trades unions
apply for their usual construction craft units.
Threshold
Certification will normally be granted
when the employees applied for constitute approximately one-half of the anticipated full
employee complement and represent most of the eventual job classifications.
Conversely, certification will
normally be denied when the employees applied for do not constitute a substantial nor a
representative cross-section of the eventual work force. Certification may also be denied
if there will be a significant increase in the number and categories of employees in the
near future.
Key
Factors
The crucial considerations with respect to
the build-up principle are:
·the nature of the
employer's operation,
·the nature and degree
of the build-up,
·the imminence and
certainty of the build-up, and
·whether the current
employees are sufficient in number and constitute a representative cross-section of the
anticipated full workforce.
Overwaitea Food Group,BCLRB No. B124/93 (anticipated general expansion of
business does not lead to application of build-up principle)
Sears Canada Inc.,BCLRB No. B500/98 (current workforce must be one-half of
imminent workforce)
P. Sun's Enterprises (Vancouver) Ltd.,BCLRB No. B432/2000 (current
workforce may be close to one-half of eventual workforce when full workforce is not
imminent)
Decisions
(Copies)
Board decisions since January 1, 2000 are
available without charge on the Internet at www.lrb.bc.ca.
Board decisions can also be
purchased from:
Canada Law Book Inc.
240 Edward St.
Aurora, OntarioL4G 3S9
Telephone (toll free) 1-800-263-2037
Advice
LRB Staff provide general information and
assistance to the public, but they cannot act as your representative or advisor.For answers to specific concerns related to your
situation, you should consult a lawyer or an advisor experienced in labour relations.For general clarification, call the Board's
Information Officer at 660-1300.
