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Canada’s Experience with Expedited Union Certification

By Douglas Gilbert  7/16/2014
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The National Labor Relations Board (NLRB) has proposed a number of changes to the rules governing the conduct of certification votes. Among the changes under consideration are the following:

  • A compressed timeline from application to date of vote.
  • The requirement that the employer file a “statement of position” within seven days of the filing of the petition.
  • The filing and disclosure to the union of names and contact information of the employees in the proposed bargaining unit.
  • Proceeding with the vote despite outstanding challenges to employee eligibility.
  • The determination of challenges after the vote has been held, if necessary.

Many of these changes have been borrowed from Canadian law. The expedited certification vote is common in Canada although there are some provinces that continue to use a card check system.

The Canadian experience is meaningful in understanding the challenges American employers will face under the new rules. Here are some common questions employers have:

Canadian employers have lived with an expedited certification procedure for many years. What lessons have been learned that may be helpful to U.S. employers facing the NLRB rule changes?

In Canada, the details of the certification procedures vary from province to province. For the purpose of illustration, the Ontario model will be considered.

In Ontario, a union seeking to be certified must file evidence that 40 percent of the employees in the proposed bargaining unit have signed union cards. Once the application is filed, a certification vote will be conducted within five business days. The employer is required to file its response to the application (or “statement of position”) within two business days of receiving the application.

So, if the employer receives an application for certification on a Friday, the employer would be required to file its response by no later than the following Tuesday. The vote itself would be held no later than Friday of the week after the application was filed. In other words, the process is completed in seven days.
What are the challenges facing an employer in preparing its response under this time pressure?

An employer receiving an application for certification has a number of decisions to make and little time to make them. The challenge is particularly serious for an employer with no prior experience in dealing with union certification.

First, the unfamiliar employer will need advice on the implications of an application for certification. The bargaining unit that will be ordered if the application succeeds will determine the structure of the employer’s relations with its employees and the union. It is critical that the bargaining unit matches the way in which work is organized. Otherwise, the bargaining structure (let alone the content of any collective agreement that may follow) will create inflexibility and inefficiencies. The employer needs to ensure that its interests are effectively represented in the design of the bargaining unit.

In addition, in its response, the employer will be required to identify the employees in the proposed bargaining unit so that board can determine whether the minimum level of 40 percent support has been achieved. Here again, the employer may be faced with a number of decisions that require legal advice. The employer may have a range of different relationships with the persons performing work and will need to decide which of these individuals should be included in the bargaining unit or not (e.g., part-time employees, full-time employees, agency employees, independent contractors). The status of persons who have responsibility for directing other employees in their work will also have to be considered. Are they management or not? Who is in or out of the bargaining unit will have an impact on the employer’s ability to carry on business if the union is certified.

All of these decisions must be made and communicated to the Labour Board and the union within two business days.

Does the employer have to provide contact information?

In Canada, the employer is required to provide the names of employees in the proposed bargaining unit. Unlike the NLRB’s proposal, the employer is not required to provide contact information. Accordingly, the unions in Canada cannot use the process to get access to an employee contact list for the purpose of further organizing.

How are disputes about the bargaining unit structure resolved?

Once the employer’s response has been filed, an officer of the Labour Board will contact the union and the employer to make arrangements for the vote. The officer will also make an effort to attempt to resolve any outstanding issues concerning the description of the bargaining unit and the eligibility of employees to vote. However, if differences between the parties cannot be resolved, the issues will be put to the side while a vote is conducted. The ballots of any employees whose eligibility is disputed will be segregated. After the vote, the ballots will generally be counted to determine whether or not segregated ballots would make any difference to the outcome. If not, the union will be certified. If the disputed ballots could affect the outcome, the Labour Board will convene a hearing to determine the issues in dispute.

What steps do employers take to communicate with employees during the countdown to the vote?

While the employer is preparing its response to the application for certification and dealing with the Labour Board officer to make arrangements for the vote, it also must determine its strategy for communicating with its employees.

An effective communication depends on a clear understanding of the concerns that have triggered the application for certification in the first place. If the employer has been surprised by the application, it will need to try to identify employee concerns. This usually means conferring with line management, reviewing union literature and receiving any information that employees in the workplace may volunteer. Employer communications that miss the mark can be worse than no communication at all.

Like the employer, the employees are being hurried towards the vote as well. Employees may know very little about the certification process or the reality of collective bargaining beyond what the union has told them. Another challenge in developing a communication strategy is to ensure that employees understand their basic rights. For example, employees who have signed a card need to know they are free to vote against certification if they wish. They need to understand the obligations of union membership. And they need to know about the give and take of collective bargaining.

In the Ontario model, in less than a week the employer must develop and execute a communication strategy that will inform employees of their rights, positively respond to issues that have given rise to the application, and ensure employees understand the employer’s preference to continue to deal with them as individuals rather than collectively. There is very little opportunity to assess employee reaction. All of this must be done within the limits of lawful communication which means that the employer will likely need ongoing advice on the content of its communications.

How flexible is the Labour Board in extending the time period for the vote?

The NLRB proposal leaves open the question of how flexible the NLRB will be in setting the timeline for votes under the new rules. In Ontario, the statute requires that the vote be conducted within five business days but affords the Board the discretion to extend the voting period. In practice, the Ontario Board rarely grants extensions. The Board has denied extensions in circumstances where it has been clear that a significant number of bargaining employees were absent, where employees have asked for more time to meet with the union, and even where the Board itself acknowledges that its notice to employees of the time of the vote was inadequate. This determination to stay on schedule reflects a policy choice against a prolonged debate over the merits of unionization.

What can employers do to prepare to respond to an expedited vote?

It is difficult to reverse the momentum of an organizing campaign that may have been gathering strength over a period of weeks or months in the compressed time period between the filing of an application and the holding of an expedited vote. Employers in Canada understand that the odds are against them in the expedited procedure. Unions succeed in roughly 70 percent of these votes. Prudent employers focus on preventive measures to detect dissatisfaction and to dispel interest in third-party representation. Surveys, crew meetings, complaint procedures, ongoing communications and manager training all become critical.

It is also important for the employer to learn the basics of the certification in advance. For example, what is a bargaining unit, and what priorities should the employer have in the design of a bargaining unit if it was faced with an application for certification? In other words, what structure would be necessary to minimize the prospect for disruption and inefficiencies?

An employer also should understand which persons performing work would likely fall into a bargaining unit and which ones would not. This may affect how the employer organizes its labour requirements.

Lastly and perhaps of greatest importance, the employer should lay the groundwork for its communications in the event of an organizing campaign. If the employer has gained the confidence of the workforce as a reliable source of information, its messaging during an organizing campaign is likely to be much more compelling.

Douglas Gilbert is an attorney with Fasken Martineau in Toronto.

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