Tuesday, October 11, 2011

How to Get Rid of a Union in Ontario

I recently involved myself in a debate on Professor David Doorey's blog about 'democracy' in labour relations.  I've followed his blog for some time, and I have a lot of respect for him, though he usually takes a pro-union stance on most issues.  Personally, I don't consider myself ideologically motivated:  Unlike many lawyers who represent management, I don't hate unions on principle.  I've seen employers who remind me of the reason why unions exist.  But I have had many occasions to question the activities of specific unions in specific contexts.

I believe that there are major problems with the current structure of our labour relations regime in Ontario, mainly because I believe that "labour" itself has become an entity with its own interests, and a powerful one at that.  Rather than, as I believe should be the case, an advocacy mechanism for workers.  The end result is that there are times when a union puts its own interests above those of individuals it represents, or even above entire bargaining units under its care.

So we frequently see cases in the jurisprudence involving employees trying to sidestep the union to deal with their employer (almost always unsuccessful, except in the Human Rights arena, where it *can* work), or taking on the union directly in a Duty of Fair Representation application (almost always unsuccessful, because there's a high threshold for it), and I have had plenty of employees call me directly because they aren't happy with the way that their unions are representing their interests.  (Think about how big a deal that is:  You've already paid union dues.  You're not getting them back.  Included in union dues is representation as against your employer.  How dissatisfied would you have to be before you would hire your own lawyer at your own expense, paying hundreds of dollars per hour, to do something you've already paid somebody else to do?)  The trouble is that there is seldom much to be done; under the statute, the union has the exclusive mandate to represent them, and they can't opt out of this.

Professor Doorey sees it thus:  The bargaining unit, if displeased with the union, can get rid of the union.  This is true.  But it seldom happens, because bargaining unit members usually don't have the sophistication or resources to successfully decertify a union, and any employer involvement or assistance will usually be fatal to the effort.  The rules governing decertification are actually fairly complicated.

So, for those employees who want to decertify a union, here's a general guide as to how.  Remember that every case is unique in its own way, and the best way to move forward, if you can afford to, is to hire a qualified lawyer to assist you.  The below is not legal advice, and does not cover every scenario.  Especially note that the process is different for construction industry matters.

Step 1:  Determine if you can bring the Application

The general rule is that you have to be a member of the bargaining unit in order to apply for termination of bargaining rights, and that any member of the bargaining unit can do so.  However, the application can't be tainted by management influence, and there have been cases in which unions have argued that the person making the application was too closely connected to the managerial team.

Step 2:  Find the Window

The Labour Relations Act sets out a variety of different circumstances in which you cannot make an application to terminate your union's bargaining rights.

The Application can be made under the following circumstances:
  1. If more than a year has passed since the union was certified, and no collective agreement has been reached;
  2. If a collective agreement exists and has a term of three years or less, then after the start of the last three months of its operation (and before a new collective agreement commences or a renewal of the agreement is effective);
  3. If a collective agreement exists and has a term of more than three years, then between the start of the 34th month and the start of the 37th month of its operation, then for the last three months of each year of its operation thereafter (and for the last three months of its operation before it expires).
It really looks more complex than it is.  Let's use a few examples.

Let's say that my union and employer commenced a collective agreement with a 24-month term, starting May 1st 2011 and ending April 30th 2013.  If I want to decertify the union, the window opens on February 1st, 2013 (three months before the end), and closes when a new collective agreement becomes effective.  So if the employer and union are able to negotiate a new agreement to start for May 1st, 2013, I need to have my application in before then.

Or suppose my union and employer negotiate a long-term collective agreement, going from September 1st 2011 to August 31st 2016 (five years).  I would then have three month windows at the end of the third, fourth, and fifth years of operation.  (Window from June 1st to August 31st of 2014 and 2015, and then a window opening June 1st 2016 that ends when a new collective agreement becomes effective.)

One of many important things to remember is that, if the bargaining unit ratifies a new collective agreement, you're probably s.o.l. for a long time if you want to get the union out.  When most employees treat a new collective agreement as being inevitable, and a question of how long it will take and what actions (i.e. strikes) may be required to get a better deal, that's a problem; people are likely to vote in favour of a tentative agreement so long as it is tolerable, and this is especially true of those who would rather be without a union in any event.

But there are also bars to initiating an application, even within those windows.  There's a conciliation process available to the parties:  The union or the employer can ask the Minister to appoint a conciliation officer or mediator, which triggers a bar for a period which essentially allows that process to run its course.  In practice, this ends up being a way for the union to extend its protection.  So it has one year to get a first collective agreement, and if it fails to do so, it asks the Minister to appoint a conciliation officer or mediator.  Then, once that process runs its course, the bar is extended for a certain period of time beyond.  Similar principles apply when subsequently renegotiating expiring collective agreements - conciliation bars an application after the expiration of the existing collective agreement.

If a strike or lock-out begins, that also creates a bar - essentially, if the bargaining unit gives the union the go-ahead for a strike, they have to give the union at least 6 months to try to accomplish its objectives.

One of the major practical challenges for an employee trying to decertify a union surrounds the whole 'conciliation' concept.  How do you find out if the union has sought conciliation without asking questions that would tip off the union to your impending application?  Ultimately, the best bet for decertifying unions is by making sure the application gets started within those three-month windows, and not waiting for existing collective agreements to expire.

Step 3:  Get your "Evidence" together

In order to make an application to terminate bargaining rights, there are going to be two substantive requirements.  First, you're going to have to show 'evidence' that at least 40% of the bargaining unit no longer wants to be represented by a union, and then later when a vote occurs at least 50% plus one of the bargaining unit has to vote on your side.

But first things first, so let's look at the evidence.  It's best to think of it like a petition.  Every page has to show what they're signing, and each name should have the printed name, signature, and date of signature.  You also need to provide the OLRB with an alphabetical list of employees corresponding with the evidence filed, and a declaration verifying the evidence (OLRB Form A-80).

Step 4:  Serve the Union and Employer and File the Application

Well, first you need to complete all the below documents.  That's a given.  After you find them all on the OLRB website.  Which isn't quite as simple as it should be, but I've tried to simplify it with links to the PDF versions of everything.  There are Word versions available, too.

You need to serve a termination package on the union, including the following:

  1. OLRB Form C-3, completed with the union's name and the date in the appropriate fields (the full name of the form is Notice to Union of Application for Termination of Bargaining Rights Under Section 63 of the Act...don't you love pithy names?);
  2. A completed copy of Form A-6 (Application for Termination of Bargaining Rights Under Section 63 of the  Act);
  3. A blank copy of Form A-7 (Response to Application for Termination of Bargaining Rights Under Section 63 of the Act);
  4. A copy of Information Bulletin 2 (which is where this list is found, incidentally);
  5. A copy of Information Bulletin 3;
  6. A copy of Information Bulletin 5; and
  7. A copy of Part III of the Board's Rules of Procedure.

And, on the employer, the following:

  1. Form C-4;
  2. The same Form A-6 as above;
  3. A blank Form A-8;
  4. A blank Schedule C (List of Employees)
  5. A copy of Information Bulletin 2 (which is where this list is found, incidentally);
  6. A copy of Information Bulletin 3;
  7. A copy of Information Bulletin 5; and
  8. A copy of Part III of the Board's Rules of Procedure.

Then, within two days, you need to file (by any means except email, fax, or registered mail) with the OLRB the following:

  1. A signed original and a completed copy of Form A-6;
  2. The evidence that the employees don't wish to be represented by a union;
  3. The above-noted list of employees corresponding with the evidence;
  4. Form A-80

See?  Couldn't be simpler.

Step 5:  Win the Vote

There are limits to what you are allowed to do in campaigning.  Threatening, intimidation, etc., these tactics aren't kosher.  But as a member of the bargaining unit, your speech isn't nearly as restricted as the employer's speech in terms of trying to persuade your fellow workers that the union isn't in their best interests.  Remember that this is your campaign; the employer is barely more than a bystander, and can't do much to help you.  And if they offer assistance, you should say no, or risk compromising the application.

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

22 comments:

  1. Do you have to follow this process to change Unions?
    Is there a waiting period between voting out one Union and voting in another?
    What happens to the current collective agreement, grievances and current grievances in litagation if we decide to change Unions?

    Joanne Sheehan (joanne_sheehan@yahoo.com)

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  2. Good questions, Joanne. The framework is similar in some ways, but the process is different. A new union can apply for certification as the bargaining agent, basically supplanting the existing union. So it isn't something that the employees themselves have to engineer unassisted. (The new union will be required to show a support base before making the application, but it isn't something where the employees on the ground need to worry about managing all of the legal technicalities. Unions know the process.)

    However, the time restrictions are pretty much identical. The same time bars which prohibit an application to terminate bargaining rights also prohibit a new union from applying. So the new union's application has to be made within certain windows.

    In most cases it will be when there is no collective agreement in place, or where the existing collective agreement is about to expire. In those situations where there is a longer term collective agreement in place, then the existing collective agreement is no longer technically in effect when the existing union loses its bargaining rights. The collective agreement is a contract between the union and the employer - if the union's gone, so is the contract. However, there are statutory freeze provisions which limit the employer's ability to change the working conditions of employees during the process of negotiating a first collective agreement with the new union.

    As for existing grievances and arbitration...a grievance in essence alleges that the collective agreement has been breached, and proceeds under the collective agreement that was in place at the time that the alleged breach occurred. So, while I've never actually come across this situation personally, I would expect the old union to continue to carry the grievance, and remain subject to the duty of fair representation.

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  3. If the employer contests the vote for either Union then we end up in a freeze provision until it is settled???

    What about the section in the Ontario Labour Relations Act that states another Union can not come in for year?

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  4. The new union can't come in for a year of the certification of the old union. (Not a year from when the old union gets out.)

    As for the freeze, in a scenario where there is a dispute between two unions...well, it depends on the circumstances. If there is an existing collective agreement, its terms will continue to operate. If there isn't, then there would *already* be a statutory freeze in place, which would continue.

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  5. What do you do if the employer has taken the union to court to try to not get the union to form. None of the employees want the union to form but the judge has ruled in favour of the union do you still have to wait the two years before filling a decertification? for a construction company with only a handful of employees who are all very new to all this.

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  6. That's an unpleasant situation, rendered possible by s.11 of the Labour Relations Act. See my August 12th 2011 entry for a bit of a discussion on remedial certification, and how and why the Board will certify a union even when the employees don't want it.

    As to the question, the process is different for construction industry employees - there are significant unique features of construction industry labour law - but the time bars are similar. The fundamental notion is that the union is entitled to an initial opportunity to reach a collective agreement, that there are conciliatory and dispute resolution processes which should be allowed to run their course once they are started, and that, with some exceptions, a collective agreement should be allowed to run its course.

    My comments about 'simplicity' of the process are somewhat tongue-in-cheek. Almost all employees in such a situation are uncomfortable with the process, and so I would seriously recommend retaining a lawyer for assistance in determining how best to accomplish decertification.

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  7. What about revoking your union card individually? I heard that you could individually opt out if you wanted to. We are a small group of 6 out of 16 and have a totally differnet department who was not represented fairly and have lost wages in our contract due to being a minority. Is this an option?
    Thanks

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  8. Not usually. I have heard isolated cases of a union expressing a willingness to do so, but I'm not sure how that would work, practically speaking, because at law the Union represents everyone in the bargaining unit. (I suppose it might be possible to redefine the bargaining unit, under the right circumstances.)

    Even assuming that it's possible, it would require the consent of all involved. There has been plenty of litigation by people trying to opt out of union representation, or payment of dues, and these folks have been unsuccessful. The most common union setup these days involves the "Rand Formula", which means that you don't necessarily have to be a union member, but you still have to pay union dues.

    Union cards are theoretically revocable, but once the union's in, in most cases that won't do much for you - even if you aren't a member of the union, you're still represented by the union.

    Of course, I can't advise you as to your specific situation in this context. You may need to obtain legal advice on the point.

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    Replies
    1. Thanks for replying. We are such a minority in the group we all didn't show up to our radifiction vote and it went through. Were just tired of always getting the short end of the stick and were trying to research whats are options are at this point or in the future.

      Delete
  9. can we vote out a union afetr just bringing them in as we were split almost 50 50 but people that voted yes are thinking they should have voted no but what we are finding is that the unoin wanted into use us as a barganing unit as one of are other plants are in nogaions an they lied to us as what they can an will do for us an will not tell us what dues will be

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  10. I have a question?

    I signed my company to be union believing that union would provide me sheet metal workers! This happened between 2004-2007. Union member that union has provided me was cut stealing from my shop causing me to stop production for about 6 months. Then I decided not have any business with union since they did not have qualified man to send me and I had a bit of suspect that maybe the theft happened to destroy a smaller company like mine.I told union I am done, I will not make this case public, I will not continue pressing charges for the member they sent me, I moved on with my life and business. I believed we came to a settlement that I am not obligated with the union agreement anymore. In the mean time I changed a company name and structure due to difference business strategies, then union comes after 5 years with now renewed agreement and Ministry of Labor Relations gives them declaration that my new 2 companies are union again. I cant believe there is no 2 year limitation rule in labor law! My about 10 guys are not the one who voted, it was a union who got declaration based on my old contract and old company name.
    Now, they want me to pay for their damages, they want to destroy me and put 10-15 Families out of work. My guys are happy what they make and I don't push them since they get paid hourly. In new construction they have peace-work system where quality of work is jeopardized by rush and speed and my clients do not like that and I would not get repeat business. In the mean time I cant pay hourly union rate because I would totally become noncompetitive with new rates.
    I belive Union are to Strong and all the law is on their side. Nobody tells you to use legal advice when you join your company to be union , nobody explains you what are you getting in to. Now I see its a nite-mare and collapse!
    What can I do?

    ReplyDelete
  11. Sasha, I do not give legal advice on this blog. If there was an application to the OLRB, I would hope that you would have obtained appropriate legal assistance at that time.

    If you require legal advice regarding what options, if any, you may have moving forward, please contact me by telephone or email (most of my posts since about November have a link to my website at the bottom) to discuss the time and cost of a consultation.

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  12. I bought a manufacturing company in northern BC that turns out was in a union in the 70's. The owner of the company in the past was a union member in the early 80's. She bought the company from her mother. Now she is the only union member. In 1985 she signed the CBA while she was still a union member. Since 1985 the union has never visited the shop even though it's only 10 km's away and none of the employees since 1990 working here even know the company is/was unionized. I bought the company shares and transferred them to a new corporation but the company is still DBA the old company trade name. The old owner still pays dues so she can collect a pension at 65 but is using checks from a different company. I just found all of this out recently because the union faxed a letter to be posted in the lunch room about a parade. I took it to the old owner and she told me this wild story. WTF am I supposed to do now? She said the union has abandoned the company since they haven't come around for over 25 years. Why would a union allow the owner to be a union member and sing the CBA and never suspect that a large company would only have 1 employee? Do you think the union knows it made a mistake and is trying to sweep it under the rug just like the old owner is? I'm worried now and I took all of this to a lawyer and he was baffled and suggested to let sleeping dogs lay... He felt it would be a black eye to the union and they are happy just to ignore it also. There is no copy of the CBA on file or online. Should I just go to the union cap in hand to sort this out? Should I ignore this? Should I go to the employees for a talk? I went to the best lawyer already who specializes in this so that's done....I want to do the right thing and I am also broke because I am only 29 and spent my life savings just to buy this company.

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    Replies
    1. Anonymous, I am unable to give legal advice here, and in any event could not assist with British Columbia law under any circumstances. All I can really say is that you should consult a B.C. lawyer, and if you've already done so, there's not much more I can add.

      I know that, in Ontario, the change in corporate structures wouldn't really matter - the union would presumably be entitled to be appointed as bargaining agent for the employees of the successor employer. (I also tend to think that I'd be concerned about how a share purchase could have been completed without it coming to my attention that a union has bargaining rights.)

      But I can't tell you the law in B.C., nor advise you on any course of action.

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  13. Is there any way for a "class action" type of way to get support dismantling teachers unions in ontario?

    the obvious motivation is the lack of children who are simply being pushed through without ever having learned even the basics.

    the science of brain "plasticity" along with actual proof of better ways to learn everything from languages to the importance of "attachment" in order for children to learn is NOT only not being utilized, but there is much evidence to suggest the entire system is unaware of even these basic learning requirements. this in turn has led to many more parents becoming the real experts in different learning styles. (i refuse to use the prejudicial terms used in the educational system which i believe will NOT be allowed used in the very near future)

    the system is failing the kids, NOT the other way around; WHAT are we going to do about it as a civilized society?

    please, all serious comments will be considered.

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  14. I'm not sure what you mean. A class action is seeking a remedy on behalf of a group of similarly aggrieved persons...it would not be a mechanism to "get support".

    Even if I assume that you're right that the current system isn't serving the needs of all kids (anecdotally, I have reason to accept it as a reasonable premise, but I'm not an expert), the connection to unions is still non-obvious. Legislatures and school boards have a great deal of control over the form and content of what is taught in the public school system, and if teachers are unaware of emerging and improving teaching techniques, then the approach to solve that problem would seem to lie in the educational and professional development curriculum used to teach the teachers.

    (Where the union becomes a challenge is much later in such a process: Once you've propagated new and improved teaching methodologies, it's a long and difficult process to deal with teachers who refuse to go along with it.)

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  15. Our union shop only has 1 full time and 1 part time employee. We would like to remove the union. The union was certified 20 years ago after a voluntary recognition. We are in the second year of the new 5 year contract that was agreed to verbally but has not been signed by us or our employer. Do we still have to go through the de-certification process?

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    Replies
    1. What you're describing about the current agreement sounds odd to me. In the construction industry, sometimes you get industry-wide collective agreements negotiated between the union and an accredited employer association, automatically binding affected employers, which at ground level appears to be something that your employer hasn't signed and you haven't ratified. I'm wondering if that might be what's going on in your case.

      Regardless, it's probably prudent for you to actually consult a lawyer about this. To terminate the union's bargaining rights, you would need to make an application to the Board, but whether and when you *can* do so is a bit of a more delicate question, and depends in part on the status of your collective agreement, among others. I can't give you legal advice on this blog.

      Delete
  16. Thanks Dennis. Yes our situation is a bit odd. We are not in construction. This was something that was tried 20 years ago. The aim was to have a lot of small business join the union. What came out of it was several shops each with their own employees and although part of a larger union we each have our own bargaining unit. I have only seen the business agent 5 times in 20 years for contract renewal. We Just don't see the need for them or value for our dues.

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  17. Grandma, I only found Mr. Buchanan's blog today. The dates on your Collective Agreement will tell you when the last 3 months of the third year is, likley some time in 2014 but there's a lot that can affect that. You can usually decert in the last 3 months of each year after the third year of the start date of the CA. Our site, (takebackyourunion.org) has some of these answers for you and none of us are lawyers, but then again, we don't charge you. labourtalk.org is another site that has this info, if you ask for it.

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  18. If individuals or a small group of employees within a union do not feel that they are being properly represented by the union and these individuals also hold positions which may conflict with confidentiality as it applies to labour relations, How do they go about removing certain positions or groups from the union? Decertification will not work as we are a group of about 10 employees that work in an IT environment and 90% of the union is made up of educational assistants and secretaries.

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  19. How can a individual construction worker opt out of the union so that he can work non-union jobs?

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