Employer's Guide to the Union Certification Process

 
THE INFORMATION CONTAINED IN THIS DOCUMENT IS CURRENTLY UNDER REVIEW AND SHOULD NOT BE RELIED ON EXCEPT WITH CAUTION.  Please contact the Board’s information officer at 604-660-1304 or information@lrb.bc.ca for more information about the review 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 a Returning Officer to conduct a secret ballot vote to be held within 5 business 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 a Board Returning Officer. 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 Returning 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 Returning Officer will be made available to the parties.

 

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

 A.        Section 8 of the Code Provides:

8. Nothing in this Code deprives a person of the freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer's business.

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.

 

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

 A.            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.        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.        The Returning Officer has determined that a pre-vote hearing is necessary.  What will happen at the pre-vote hearing?

 A.        A Vice-Chair of the Board will conduct the hearing and may address any issues related to the application.  The Vice-Chair may set a further expedited adjudicative process if necessary, including an in-person hearing, to address those issues.


The Board will proceed with the hearing despite the absence of any affected person who has been given notice of the hearing.


The Board also gives notice of the application to other unions that, according to the Board's records, have a collective bargaining relationship with you.

 

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 the 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 both the pre-vote hearing (if one is ordered) and any subsequent hearing.  You are entitled to be represented by legal counsel or by any individual authorized to speak on your behalf.


Hearings are generally conducted at the Board's offices in Vancouver.  However, you can attend the pre-vote hearing (if one is ordered) by telephone by following the instructions set out in the Notice of Certification Application.


If a further hearing is required and you would prefer that it not be conducted in Vancouver, you must raise that issue with the Vice-Chair.

 

Q.        The vote has been ordered, but the Vice-Chair has set a further hearing.  What will happen at that hearing?

 A.        The Vice-Chair will set a further adjudcative process to address issues such as whether the applicant union is a trade union within the meaning of the Code and whether the group of employees applied for is a unit appropriate for collective bargaining.  The Vice-Chair will also use that hearing to resolve any outstanding questions of threshold and to resolve challenged ballots.


The ballots cast at the representation vote will not be counted until all of these issues are resolved.

 

Q.        Can my objections be dealt with informally?

 A.        An officer of the Board may be in touch with you and the union representatives to attempt to resolve any issues arising out of the application informally.  This may occur before or after the pre-vote hearing.  This process is often successful and may result in the matter being resolved quickly.

 

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 12 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, contact the Board's Information Officer at 660-1304 or information@lrb.bc.ca.

 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)