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From the “are you kidding me??” file …

When employers in the construction sector receive an Application for Certification by a Union, they have two business days to file a Response. You can imagine the whirlwind of activity this creates even if the Application comes to the attention of the right person at the company immediately (it doesn’t always) and if the company already has a relationship with a labour lawyer experienced in construction labour law (many don’t). If no Response is filed by the two-day deadline, the Union’s Application will likely be accepted in its entirety, no matter what the real facts might be, and the Union will likely be certified to represent at least some of the company’s employees.

To complete a Response, the company has to determine which sites were active and which employees were at work on the specific day the Application was filed. This is a time-consuming job, especially for a company working on many sites at any given time. OLRB case law is clear – if employers miss listing a site or an employee, they can’t be added later.

Recently, the OLRB made this process even more demanding. Now, an employer will have to specify exactly where each employee was working on the Application Filing Date, right down to the municipal lot and plan number, and the specific floor of a multi-storey project. Again, imagine the pressures and the potential for error involved in the following scenario:

Acme Construction Co. has anywhere from 25 to 50 employees working at any time, depending on the number of active projects. On the day in question, they have seven projects on the go, although it was rainy, so some sites may not have been active. Employees often work on more than one site in any given day. One of the projects is a 15-storey building and there are usually 10 or 12 employees there. They each work on one or more floors, depending on their skill set and the progress of the project.

Acme receives an Application for Certification by fax at 4:55 Friday afternoon, when no one is in the office. The receptionist sees it on Monday morning and puts it in the owner’s in-box. The owner sees it mid-morning and calls his business law lawyer, who gets back to him a couple of hours later and gives him the name of a labour lawyer with construction experience. The owner calls the labour lawyer, who is in a hearing. At the end of the day Monday, the labour lawyer calls the President and directs him to start gathering information. At this point, the company and its labour lawyer have 24 hours to gather the information, make strategic decisions, prepare the Response, deliver it to the Union and file it with the OLRB.

As employers’ counsel, we are very strongly opposed to this unrealistic escalation of the demands placed on our clients and we are considering our options with respect to making our concerns known to the OLRB. However, in the meantime, if your construction company has any reason to believe that an organizing campaign by a Union might be under way, it is imperative that you:

(a) keep track of exactly where your employees are working every day;

(b) proactively develop a relationship with an experienced labour lawyer who can assist in responding to the organizing campaign and then in the event an Application is filed; and

(c) should you receive any communication from the OLRB, contact your labour lawyer immediately.

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