Employer's Guide to the Union Certification Process

 This Guide answers questions which are often raised with respect to applications for certification by trade unions.  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 Code prohibits threats or intimidation which interfere with an employee's free choice about joining or not joining a trade union.  Suspensions, dismissal or other discipline are often found to be violations of the Code. 

  Questions and Answers

 

Q.       What is an application for certification?

 A.        It is an application by a trade union for the exclusive right to represent employees in collective bargaining.  A certification order (if granted) gives the union the right to negotiate for a collective agreement with the employer, regulating wages and working conditions for the employees.

 

Q.        Do I have any say in whether my employees unionize?

 A.        Under the Labour Relations Code, the decision as to whether or not a group of employees wish to be represented by a union is entirely the decision of those employees.

 

Q.        What support does a union need to file an application for certification with the Labour Relations Board?

 A.        A union must demonstrate membership support of 45% of the employees in an appropriate bargaining unit.  The Board will then direct an Industrial Relations Officer to conduct a secret ballot vote to be held within 10 days of the receipt of the application of the Board.  A union will be certified if more than 50% of the valid votes cast favour union certification.

 

Q.        How does a union prove it has the required support?

 A.        Your payroll records and the trade union's signed membership cards will be examined by an IRO from the Ministry of Labour. This examination is part of the Board's investigation.  The membership information is confidential to the Board.

 

Q.        Now that I've received this Notice (Notice of Certification Application), what do I have to do?

 A.        You are required to post it in a conspicuous place in your business for 5 consecutive working days where all employees will see it.  You are also required, under the Code, to co-operate with the Industrial Relations Officer in making available to that Officer all records necessary to carry out the Board's investigation and to conduct the vote.  This includes information necessary to establish your current employees, which may include employees temporarily absent from work.  Before a hearing is held on the application the report of the Industrial Relations Officer will be made available to the parties.

 

Q.        Can I talk to my employees about the application?

 A.        You have a right to communicate.  There are several sections of the Code dealing with this question, including the following two:

Right to Communicate.

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.

Coercion and intimidation prohibited. 

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. 

 

Q.        What kind of things am I prohibited from doing?

 A.            Subject to Section 8 of the Code, you are prohibited from doing anything which could interfere with the right of your employees to join a union or have union representation.  Among other things you are prohibited from:

 ·         participating in or interfering with the formation or administration of a union;

 ·         discharging, suspending, transferring, laying off, or otherwise disciplining an employee during a certification drive, except for proper cause;

 ·         threatening a penalty or promising a benefit in order to compel an employee to refrain from becoming, or continuing to be a member of a union.

This type of conduct is known as an "unfair labour practice".  If you have any doubt about the permissibility of any act, it is recommended that you obtain experienced labour relations advise.

 

Q.        Can I continue operating my business as usual while this is going on?

 A.        While an application is pending you can not, without the permission of the Labour Relations Board, change rates of pay or alter terms and conditions of employment.  This restriction does not affect your right to suspend, transfer, lay off or discharge an employee for proper cause; however, you may be required by the Labour Relations Board to establish that you had proper cause.

 

Q.        The date for the hearing is too soon.  Why the rush?

 A.        The Labour Relations Code contains strict time limits for certification applications.  Experience has shown that this activity can have a disruptive effect on the workplace.  In addition, the Code says the secret ballot vote must be held within 10 days of the application date.

 

Q.        Why do I have to go to the expense and inconvenience of coming to Vancouver for a hearing?  Why can't it be held here?

 A.        If you have no objections to this application, you do not have to attend or be represented.  If you do have objections it is very important that you attend or be represented at the hearing.  You are entitled to be represented by legal counsel or by any individual authorized to speak on your behalf.

             The Board receives many certification applications each week.  Centralizing the location of the hearings is necessary to permit the Board to deal expeditiously with these matters.  Also, the Board's resources cannot accommodate hearings scheduled throughout the province and meet the time limits imposed by the Code.

 

Q.        If I want advice do I have to hire a lawyer?  As a taxpayer shouldn't I be able to get it from the Labour Relations Board?

 A.        The Labour Relations Board is like a court, dealing with labour relations issues.  Board staff are there to provide the public with general information and assistance; however, they cannot act as your representative or advisor.  If you want legal or other advice from someone who will represent your interests, you must arrange this at your own expense.

 

Q.        What is the purpose of the certification hearing?  What will it decide?

 A.        The hearing is normally brief and very straightforward, intended to address only three issues: 

1)           Is the applicant a trade union as defined in the Labour Relations Code?

 2)           Is the group of employees applied for an appropriate unit for collective bargaining?

3)           Does the applicant trade union have the necessary membership support for a vote to be held?

 If the answer to these questions is yes, the Board will order that the secret ballot representation vote be counted.  A majority of valid votes cast determine whether or not the union is certified.

 

Q.        What kind of objections can I or my representative raise?

 A.        You can raise objections on any of the three questions listed above.  Examples include arguments that the group of employees applied for does not constitute an appropriate unit for collective bargaining, or that particular individuals should be included in or excluded from the bargaining unit.

 

Q.        What will happen at the hearing?

 A.        The Vice-Chair in charge of the hearing will first determine if there are any objections to the application.  If so, the Vice-Chair may direct an officer of the Board to meet with you and the union representatives, to see if any differences can be resolved through informal discussions.  Such informal discussions are usually held on the morning the hearing is scheduled.  This process is often successful and the matter is quickly resolved.  If necessary, the Vice-Chair will conduct a formal hearing to deal with any unresolved issues.  You should be prepared to outline and support your objections on that day.  Decisions are usually made promptly.  The decision will be either to dismiss the application, or order that the vote be counted.

 

Q.        Why is the informal process followed?

 A.        It almost always saves resources and money, by reducing legal costs and other expenses for all parties involved.  It also provides an opportunity to express general concerns.  Nothing discussed in the informal hearings can be used in the formal hearing which follows.  In addition, on the many occasions when the informal meeting leads to agreement between the employer and the union, a positive basis has been established for the future collective bargaining relationship.

  

Q.        What happens if the union is certified?

 A.        Either you or the union can serve notice to begin collective bargaining.  Within 10 days of the notice, "good faith" bargaining must begin.  For at least 4 months, or until a collective agreement is reached (whichever is sooner) you are again prohibited from changing wages or terms or conditions of employment, without written permission from the Labour Relations Board.

 

Q.        What is bargaining in good faith?

 A.            Bargaining in good faith means meeting with the other side, exchanging proposals for the contents of collective agreement in making a sincere attempt to reach an agreement.  Failure to agree with the other side's proposals does not, in itself, constitute bad faith.  However, a deliberate strategy by either side to prevent reaching an agreement is bad faith bargaining and contrary to the Labour Relations Code.

 

1.   This Guide is only intended to provide general answers to frequently asked questions about the union certification process.  It is not a legal document and is subject to the provisions of the Labour Relations Code and Regulations, the Labour Relations Board Rules and the published decisions of the Labour Relations Board.  For more information, call the Board's Information Officer at 660 -1304.

 2.  For answers to specific concerns related to your company's situation, we recommend that you consult an advisor experienced in labour relations.

 3.     Decisions of the Labour Relations Board are available on the Board's website: www.lrb.bc.ca  .

       Updated: October, 2009                            


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(Collective Agreement Arbitration Bureau)