The Trade Union Certification Process

    Purpose

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


 

  Legislative References (Code, Regulation, Rules)

Sections 18, 20, 21, 22,
23, 24, 25, 26, 28; Regulations 3 & 4
LRB Rule 24, Form 18

 

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 if  the 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 accuratelyThe 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.

  Leading Cases

Elkview Coal Corporation, BCLRB No. B288/93 (membership evidence)

 Forever Girls Productions Inc., BCLRB No. B367/94 (membership evidence)

M3 Steel (Kamloops) Ltd., BCLRB No. B394/93 (membership evidence)

 Canwood Furniture Factory Inc., BCLRB No. B30/95 (calculation of 90 days)

 L-178 Holdings Ltd. (Ramada Ltd. Hotel), BCLRB No. B8/99 (revocations)

 Labour Relations Regulation 3.1, BCLRB No. B10/2000 (additional requirement for construction industry.)

 Wintrestle Intermediate Care Inc., BCLRB No. B195/94 (complete and accurate bargaining unit descriptions)

 ETL Environmental Technology Ltd., BCLRB No. B200/93 (complete and accurate applications)

 Nazko Resource Management Ltd., BCLRB No. B362/93 (correct employer)

 Executive Inn (Burnaby),BCLRB No. B106/93 (correct employer)

 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 must  satisfy 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, a  subsequent 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)

 Coastal Ford Sales Ltd., BCLRB No. B431/95 (application of IML)

 Lifestyle Retirement Communities Ltd.,BCLRB No. B452/97, (1998) 39 CLRBR (2d) 202 (functional integration)

 Costco Wholesale Canada Ltd., BCLRB No. B220/98 (community of interest at second stage)

 Coast Laundry & Linen Supply Co. Inc., BCLRB No. B152/99 (application of IML; second bargaining unit)

 Can-Am Produce & Trading Ltd., BCLRB No. B15/2001 (application of IML; initial bargaining unit)

 Fleetwood Sausage, BCLRB No. B104/2001 (application of IML; initial bargaining unit)

 W.G. Enterprises Ltd., BCLRB No. B308/96, 32 CLRBR (2d) 289 (general outline of certification process)

 B.A.T. Construction Ltd., BCLRB No. B444/94, 25 CLRBR (2d) 1 (inclusion/exclusion in the construction industry)

 Tercon Contractors Ltd., BCLRB No. B83/96, 30 CLRBR (2d) 245 (application of principles of B.A.T. Construction Ltd., BCLRB No. B444/94)

 P.A. Building Maintenance, BCLRB No. B222/94 (inclusion-exclusion from bargaining unit with respect to certification applications)

 Celtic Shipyards, BCLRB No. B133/94 (inclusion/exclusion, membership evidence)

 Britco Export Packers Ltd., BCLRB No. B151/94 (membership evidence)

 Custom Gaskets, BCLRB No. B83/93 (inclusion/exclusion)

 Elkview Coal Corporation, BCLRB No. B288/93 (competing applications)

 Teleflex (Canada) Limited, BCLRB No. B69/97 (competing applications, different units)

 Vertex Construction Services, BCLRB No. B122/2000, 58 CLRBR (2d) 161 (competing applications in the construction industry)

 H & H Total Care Services, BCLRB No. B183/94 (recognition of a union under the Code)

 Haida Tribal Society, BCLRB No. B331/95 (membership evidence)

 Lonsdale Hotels Inc., BCLRB No. B130/95 (membership evidence - employee misunderstanding purpose)

NRS Block Bros. Realty Ltd., BCLRB No. B209/95 (membership evidence - effect of defective cards on application)

 Recon Building Products Inc., BCLRB No. B378/95 (leave for reconsideration denied BCLRB No. B165/96) (membership evidence – dating of cards)

 W.G. Enterprises, BCLRB No. B334/95 (cards ruled valid which were dated immediately before, during and immediately after a meeting)

 Pan-Afric Holdings, BCLRB No. B151/93 (IRO confidential reports)

 Rissling Contractors Ltd., BCLRB No. B223/96 (disclosure of voters lists)

 Ledcor Industries Ltd., BCLRB No. B230/96 (disclosure of voters lists)

 Spacan Manufacturing Ltd., BCLRB No. B318/99 (disclosure of voters list)

 Canadian Holidays Ltd., BCLRB No. B251/94 (binding agreements in informal hearings)

 Tri-Star Seafood Supply Limited, BCLRB No. 442/95 (federal/provincial jurisdiction)

  4.  Certification of Dependent Contractors

  Law

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)

 Weyerhaeuser Canada Ltd., BCLRB No. B129/96 (further evaluation of dependency factors)

 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. 

Leading Cases

Noranda Mines Ltd. (Goldstream), BCLRB No. 26/82, [1982] 2 Can LRBR 475 (general law)

 Kingfisher Sales, Inc., BCLRB No. 73/86 (general law, seasonal factors)

 Cicuto & Sons Contractors Ltd., IRC No. C271/88, 1 CLRBR (2d) 63 (construction)

 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, 1990 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, Ontario   L4G 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.