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What employers need to know about certification applications in the construction industry

Continuing with our labour law basics series, in today’s post we will discuss what to do if a union files a certification application with the Ontario Labour Relations Board (“OLRB” or the “Board”) seeking to represent some or all of your employees in the construction industry. 

Special rules for labour relations in the construction industry

As we discussed last time, a special set of rules govern the relationship between employers and trade unions in the construction industry, as set out in the Ontario Labour Relations Act, 1995 (the “Act’).

The Act defines the “construction industry” as “the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site” (see s. 1(1) “construction industry”).

If your business falls within this definition, these special rules will apply to you.

You received a certification application from a union that represents construction workers.  Now what?

Once you receive a certification application, including in the construction industry, you only have two business days to file your response.  So, act quickly.

Best practice is to seek advice from your legal counsel immediately and be prepared to send them a copy of the application.  If you choose not to retain legal counsel, make sure you read and understand the applicable OLRB Information Bulletins, including IB-6, that should have come with your application, but can otherwise be found here.  Comply with all deadlines regarding posting of the application and response in the workplace as outlined in the Board’s materials. 

Your workplace is not automatically unionized just because you received a certification application, but ignoring the application will not prevent the union from being certified.  

Check your materials to see whether the union has elected to proceed with the certification application by way of the card-based or vote-based systems.

Card-based certification

Card-based certification is unique to the construction industry in Ontario.

Under the card-based system, if the union can demonstrate that more than 55% of the employees who were at work on the application filing date were doing bargaining unit work, and are members of the trade union, then the Board may certify the union without holding a vote.  The Board can also direct a vote (as described below); however, in our experience the Board usually does not do this. 

Remember, it is only the employees who were at work on the application filing date who are counted.  It might be that you have 500 employees, but if only 4 of them were working on the application filing date (for example, on Christmas Eve) and three of them signed union membership cards, then the Board can certify the union based on the support of only those three employees.

Vote-based certification

Under the vote-based system, if the union can demonstrate that it has signed membership cards from at least 40%, but less than 55%, of the employees who were at work on the application filing date, and who were doing bargaining unit work, the Board will order a vote.  This vote will take place within 5 business days of the application filing date.  Before the pandemic, these votes were held in-person.  Now, they are held electronically, either by phone or internet.

If the majority (i.e., 50% +1) of voters vote in favour of the union, the Board will (absent exceptional circumstances) certify the union.  Keep in mind that there might be 50 people in the bargaining unit, but if only 20 of them vote, then 11 of them can make the decision.  That’s why it’s important for employers to encourage voting!

When communicating with employees during the period before the vote, it is particularly important for employers to remember what they can and, most importantly, cannot say about the union.  Check out my previous blog for this important information here.

If you are an employer in the construction industry and have questions about certification applications or any labour related issues in your workplace, please contact any member of Siskinds’ Labour Law team.

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