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What employers need to know about certification applications.

Continuing with our labour law basics series, today 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 of or all your employees. 

You received a certification application from a union. Now what?

If you are aware that a union has been contacting your employees, ensure that anyone tasked with receiving documents is aware of what to do when a Certification Application (the “Application”) arrives. Once received, you only have two business days to file your response, so you must act quickly. You should also ensure that your employee list is up-to-date and that you can quickly determine whether any employees were off work on any particular day.

On receipt of an Application, the best practice is to seek advice from your legal counsel immediately and forward a copy of the Application to them so they can draft your Response to the Application. If you choose not to retain legal counsel, make sure you read and understand the OLRB Information Bulletin which should arrive with the Application, but can otherwise be found here. Read all the materials that you have been provided. Comply with all deadlines regarding posting of the application and response in the workplace as outlined in the Board’s materials

Sticking your head in the sand and playing ostrich won’t work—ignoring the Application will only help the union. And remember, receiving a certification application does not mean that your workforce is unionized—there will be a vote and the majority of your employees may not want to be unionized. 

The first step after receiving the Application is to prepare a Response, including a spreadsheet showing the names of all employees in the bargaining unit requested by the union, noting whether any were absent on the day the Application was filed, and including their position. You may also want to dispute the union’s bargaining unit description, which may be too narrow or too broad based on the circumstances of your particular workplace. If that is the case, you will need to complete a second spreadsheet with information about the employees that you propose to include in the bargaining unit.

The union will have an opportunity to challenge any employees it does not believe should be included in the bargaining unit and/or dispute your proposed bargaining unit description if you have proposed something different than they did in the Application.

After the Response is filed, the Board will compare the list of employees in the Response to the signed union membership cards that were filed by the union. The union must be able to demonstrate that 40% of the proposed bargaining unit are union members in order for the Board to hold a vote.

If the Board confirms that 40% of the employees in the bargaining unit proposed by the union have signed union membership cards, the Board will order a vote be held within five business days of the filing of the Application. Before the advent of the COVID-19 pandemic, these votes were held in-person. Now, they are held electronically, with voters being permitted to vote either by phone or internet.

The majority (50% + 1) of voters will make the decision. There might be 10 people in the bargaining unit, but if only five of them vote, then three 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 have questions about any union related issues in your workplace, please contact any member of Siskinds’ Labour Law team.

*Note: This post does NOT discuss certification applications in the construction sector, where completely different rules apply. See my blog post on certification application in the construction industry for more information.

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