A union can file an application requesting to be certified to represent a specific group of employees in a workplace. In addition to responding to an application, employers must tread carefully and understand the restrictions placed on them by the Labour Relations Act 1995 (Act).

This article briefly looks at the union certification process and obligations applying to employers during the process. We then report on a recent decision of the Ontario Labour Relations Board (OLRB) in which a union sought certification, alleging that the employer had engaged in interference and intimidation.

The trade union certification process

Under the Act, in certain circumstances, a union can apply to the OLRB for certification as the bargaining agent to represent a specific group of employees in a workplace (a proposed bargaining unit).

Under section 8 of the Act, if the union can show that at least 40% of that group of employees appear to be members of the union, it can ask the OLRB to conduct an official vote.

Unfair labour practices during the certification process

Once a union certification campaign begins, the employer must not take any action that would obstruct the union’s communication and relationship with the employees in the workplace. Employers are not allowed to engage in unfair labour practices as set out in the Act.

For example, in the context of union certification, an employer cannot:

• interfere with the representation of employees by a trade union; or
• seek by intimidation or coercion to compel any person to refrain from becoming a member of a trade union.

A union seeks certification to represent construction employees

In Labourers’ International Union of North America, Local 837 v Jay Fencing Ltd., the union filed a complaint alleging that the employer engaged in unfair labour practices. The union seeks to represent all construction labourers in the industrial, commercial and institutional sectors of the construction industry in Ontario. The employer is a fencing company that operates a shop in Waterloo.

In a previous case before the OLRB, the union sought vote-based certification under the construction industry provisions of the Act. The OLRB directed that a vote of employees is held and that the ballot box be sealed while the union’s allegations of employer misconduct were litigated.

The union now argued that, because of the employer’s conduct, it had to cease its organizing campaign and that the true wishes of the employees cannot be determined by way of a representation vote. It sought a certificate under the Act certifying the trade union as the employees’ bargaining agent.

Union’s organizing campaign and the employer’s conduct

A union organizer got in touch with some of the employees to see if they were interested in organizing the employer so that it would be a union company. An employee handed the employer the union’s pamphlet and the union organizer’s business card.

The employer then phoned the union organizer, who recorded the call. The employer made a range of threats and requests, including “you don’t want to have someone to start getting in a punching mode,” “I’m just calling to give you heads up. If you want to push the point, then we’ll push the point” and “Would you please refrain from talking to our workers, okay?”

A couple of days later, the employer questioned an employee about the union organizer, saying, “I heard you went out for a beer with the guy, is that true?” Employees were also told not to talk to “the union guy.”

OLRB finds that the employer engaged in unfair labour practices contrary to the Act

The OLRB decided that some of the statements made by the employer over the phone amounted to threats of violence. These interfered with the union’s attempt to gain the right to represent the company’s employees, breaching the Act. The direction to cease talking to employees also constituted interference, as well as intimidation or coercion prohibited by the Act:

The direction to cease speaking with employees, exacerbated by threats of violence, constitutes an attempt by the Employer to intimidate and coerce [the union organizer] to refrain from encouraging employees to become members of a trade union, which is a protected right under the Act.

Finally, the employer’s questioning of employees whether they were meeting with the union organizer, and telling employers not to speak with him, also constituted an interference with the employees’ rights to select a trade union and were coercive and intimidating. As a result, the OLRB could not be confident that the vote held would represent the true wishes of employees.

OLRB refuses to order remedial certification of the union but provided other remedies

The OLRB refused to certify the trade union, finding that no employees knew the threats and that the union had effectively stopped the campaign. It opined that the organizer effectively gave up trying to organize the company because he had determined that the threat was likely sufficient to get a directed certification. It explained that:

While the Employer’s breaches of the Act are serious and cannot be condoned without an effective remedy, the lack of viability in the Union’s organizing efforts also cannot be ignored.

The OLRB ordered the employer to cease and desist from violating the Act, provide the union with contact information for all of its employees, and make available a private meeting room at the workplace for union representatives to meet with employees.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Guidance on Union Organizing Drives

At Grosman Gale Fletcher Hopkins LLP, we have been advising employers on labour relations questions, including union certification and unfair labour practices, for more than 30 years. Suppose you are an employer facing a union organizing drive. In that case, we will outline what you can expect, help guide you through the process, and help manage your risk and liability while ensuring that your business can continue to function without disruption. Please contact us online or at 416.364.9599 to schedule a consultation.