Termination of Bargaining Rights

    Purpose

The purpose of this Information Bulletin is to provide general information and guidance about termination of bargaining rights. 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.

  Legislative References (Code, Regulation, Rules)

Sections  33, 34, 142: LRB Rule 25; Forms 33, 33A, 142, 142A

  Law

Bargaining rights for a certified unit can be terminated under Section 33 of the Labour Relations Code on application by:

 ·         the employees in the bargaining unit,

 ·         the trade union certified to represent the bargaining unit, or

 ·         the employer named in the certification.

  Decertification of the Bargaining Unit

Employee Applications for Decertification

Employees in a certified bargaining unit may apply for decertification under Section 33(2) of the Code.  Such applications may not be made:

 ·         during the first 10 months following certification,

·         during the 10 months following refusal of a prior decertification application because of unfair labour practices, or

·            during a period of 90 days or longer following refusal of a prior decertification application, where ordered by the Board.

A decertification application must be accompanied by signed individual signature forms from at least 45% of the employees in the unit.  The application and each individual signature form must show the correct name of the union and the local number if applicable.  The date of signing must be shown on the application and on each individual signature form. As in the case of certification, the number and names of employee signatories are confidential to the Board.

Single Employee Units

 

The fact that there is only one employee in the bargaining unit at the time of the decertification application is not a barrier to decertification.

  Partial Decertification

Employees may also apply for decertification of part of a bargaining unit.  Under Section 142 of the Code, the Board may exercise its discretion to allow an application for partial decertification of a bargaining unit.  The Board's policy on partial decertification is set out in Certain Employees of White Spot Limited, BCLRB No. B16/2001.  More information on what is required is set out in Form 142.  You may also contact the Board's Information Officer at (604) 660 - 1304. 

In addition, the Board has determined that, under the unique circumstances created by the Health Authorities Act, it may exercise its discretion to allow a decertification application by employees of a single employer covered by that Act to proceed under Section 142 of the Code.

  Decertification Vote

A vote will be conducted by an Industrial Relations Officer within 10 days of receiving a valid decertification application.  The 10 day limit will not apply if the Board determines that the vote is to be conducted by mail.

  Improper Interference

An employer cannot initiate or assist employees with a decertification application.  If an application has been filed alleging improper interference by a person, or if any of the employees in the unit are affected by an order under Section 14 of the Code (i.e. unfair labour practices), the Board may order the ballot box sealed pending resolution of those issues.  If the Board determines there has been improper interference such that the true wishes will not be disclosed, or the employees are affected by an order under Section 14, the Board may direct the ballots not be counted and dismiss the decertification application.

    Vote Results

If the ballots are counted and a majority of employees voting oppose continued representation by the union, the Board will cancel or vary the certification.  The certification will continue in the event of a tie vote or if only a minority oppose continued representation by the union.  If less than 55% of those employees eligible to vote cast ballots, the Board may direct that another representation vote be held.

    Results of Cancellation

If the certification is cancelled or varied, the union's bargaining rights and any collective agreement are also cancelled.  No other trade union may apply for certification of employees within that unit for a period of 10 months, unless a shorter period is allowed by the Board.

  Voluntary Recognition

Section 34 of the Code provides for the revocation of bargaining rights where there is a collective agreement resulting from voluntary recognition.  The process followed will be the same as in the case of an application under Section 33, with the additional requirement that if the collective agreement is not on file with the Board, the applicant will be required to provide a copy.

 

Decertification on the Grounds of Abandonment

A union or an employer may apply for decertification under Section 33(11); however, the Board does not automatically grant such an application.  The applicant will be required to show that the union has abandoned the bargaining unit in question.

In evaluating an abandonment application the Board will consider such factors as the length of inactivity on the part of the union, its attempts to renew the collective agreement, its activities related to administering or enforcing the collective agreement, and any extenuating circumstances which the Board considers relevant.

 The Board has ruled that Section 33(11) does not allow an employer to decertify a union simply because it does not have any employees at the time of application.

Other Reasons

Under Section 33(1) or Section 142 the Board may cancel a certification if it is satisfied that the trade union has ceased to be a trade union, or that the employer has ceased to be the employer of the employees in the bargaining unit.

 An employer may apply under Section 33(1) to cancel the certification if it has gone out of business and there is no reasonable likelihood it will re-open in the foreseeable future.

The Board has ruled that where there are no other employees, an individual employer who is a member of the union cannot apply for decertification, relying on status as a union member, since the individual is not an employee under the Code.

 Leading Cases

Michael Anderson Decorating Ltd., BCLRB No. B283/93 (denial of an application because of unfair labour practices)

T & E Screen Print Ltd., BCLRB No. B75/94 (denial of an application because of unfair labour practices)

Royal Canadian Legion, Kelowna (Pacific No. 26) Branch, BCLRB No. B76/94 (abandonment)

J.C. Pacific Holdings Ltd. , BCLRB No. B21/95 (abandonment)

Wayne Watson Construction Ltd., BCLRB No. B306/94 (abandonment in the construction industry)

LOF Glass of Canada Limited, carrying on business as Vanfax, BCLRB No. B304/94 (leave for reconsideration denied BCLRB No. B498/94) (an application by an employer for decertification under Section 33(1) of the Code)

Weston Bakeries Limited,   BCLRB No. B205/99 (an application by an employer for decertification under Section 33(1) of the Code)

Stong’s Markets Ltd., BCLRB No. B386/94 (decertification/unfair labour practices)

C-Tron Systems Corp., BCLRB No. B39/95 (improper interference)

Sacpyr Investments Ltd. , BCLRB No. B237/96 (alleged improper interference by union.) 

Pacific Painting & Sandblasting, BCLRB No. B94/97 (single employee unit)

Certain Employees of White Spot Limited , BCLRB No. B16/2001, 65 CLRBR (2d) 161 (partial decertification)

Baptist Housing Society of B.C. (Central Care Home) , BCLRB No. B442/98 (decertification of a single employer in a multi-employer certification in the health care sector.)

Gord Jack Electrical Services Ltd ., BCLRB No. B211/95 (union member employer/shareholder with no current employees attempting to decertify)

  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, 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.

 


    Practice Manual Effective: 04/01/95
    Revised: 08/2001

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