Friday, May 2, 2014

A Case for Change: Recognizing Bargaining Unit Members as Stakeholders in Labour Relations

There's a lot of room for discussion in many areas of labour relations, from grand questions of whether to use the Wagner model (which prevails in North America) or some other model, to policy questions of 'right to work', the Rand formula, and the scope of freedom of association.

I propose to touch on a smaller, and hopefully less controversial, reform which is badly needed in Ontario's Labour Relations Act.

By and large, the LRA is built around the relationship between the union and the employer.  In many ways, this makes sense:  The very point of labour relations is that the union stands as a singular whole for the multitude of employees.

Yet, if we lose sight of employees as stakeholders in the process, we have lost sight of the entire purpose of labour relations.  And, more importantly, there are circumstances where employees are entitled to direct access to procedures under the LRA, and yet the processes under the LRA are far from accessible to individual employees.  There are very significant "access to justice" problems in the labour relations regime.

The primary areas in which problems arise are where the individual employees' interests run contrary to the interests of the union.  These are the situations where an employee is totally on his/her own, without guidance from the representatives to whom he or she is paying union dues.  The vast majority of these scenarios are in the context of applications to terminate bargaining rights (referred to as "decertification" or "termination" applications) and "duty of fair representation" applications brought against the union.

I am not going to address the issues with the DFR process at this time.  They are not straightforward, and involve issues of substantive law.

However, I will suggest that there are minor yet important changes to be made in the LRA itself, the Ministry of Labour's policies, and the OLRB's Rules of Procedure, which will ease the 'access to justice' problems of individual bargaining unit members.

Reform #1:  Let the Bargaining Unit Know About Conciliation

The Problem

I've blogged about this issue before.  By way of background, there are only certain times when a termination application can be made.  This is complex enough in the first place.  There are s.63(1) applications, which allow a termination application if more than a year has passed since the union was certified but no collective agreement has been reached.  (In the construction industry, there are s.132 applications available after six months.)  Then there are s.63(2) applications, which are available during the last three months of the third year and every year thereafter of its operation.  (So if a collective agreement has a five year term, an application can be brought in the last three months of years 3, 4, and 5.)   As well, s.63(2) applications are available after the start of the last three months of a collective agreement, until a new collective agreement is reached.

However, there are certain bars.  One of them - the centrally problematic one - is the appointment of a conciliation officer.  The union or employer is entitled to request that the Ministry of Labour appoint a conciliation officer to help work out a collective agreement, and once the conciliation officer is appointed, the effect is to bar a s.63(1) application altogether, bar a s.132 application altogether, and bar a s.63(2) application after the expiration of the existing collective agreement.

There's a logic to it, of course:  It creates a process for conciliation without the threat of a decertification application hanging over the union's head.  For the same reason, no decertification application can be brought in the first six months of a lawful strike - it gives the union a meaningful opportunity to make the strike work.

So how long does the bar last?  Well, there are a few scenarios in which the bar could theoretically expire, but by far the most common is 30 days following the issuance of a 'no board' report - the parties being advised that no conciliation board will be appointed.

So what's the problem, then?

Put simply, it's that individual members of the bargaining unit have no way of determining whether or not this bar exists.  Despite the fact that the appointment of a conciliation officer and the issuance of a 'no board' report both significantly impact the statutory rights and remedies of bargaining unit members, they are not entitled to be advised of either event.

In the ordinary course, the bargaining unit is not notified that a conciliation officer has been appointed.  The Ministry advises the union and the employer, and those are the only parties who know.  A bargaining unit member considering a decertification application can't ask the union about it, because that will send up a red flag for the union - if they haven't sought the appointment of a conciliation officer yet, they will now.  The bargaining unit member likely can't ask the employer about it, because of the risk that the employer's response will be construed as employer influence.  (I'm not familiar with any case law on the point, but I have seen the argument made.)

So...what about the Ministry of Labour?  Will they tell bargaining unit members whether or not a conciliation officer has been appointed?  I actually inquired with the Ministry about this last year, and they said no:
Under the Labour Relations Act, 1995, for collective agreements of three years in length or less, the last three months is an ‘open period’ for replacement and termination applications.  For collective agreements of more than three years in length, the ‘open period’ occurs in the three-month period immediately preceding the agreement’s third anniversary and then again immediately preceding each subsequent anniversary.  These guaranteed three-month ‘open periods’ are unaffected by the appointment of a conciliation officer or the issuance of a ‘no-board’.
After a collective agreement has expired (and if a renewal agreement has not been concluded), an ‘open period’ can also exist.  Such unguaranteed ‘open periods’ may be affected by the date a conciliation officer was appointed and/or the date a ‘no-board’ was issued.
The Ministry treats the notification of the appointment of a conciliation officer and the issuance of a ‘no-board’ as private correspondence between it and the parties.  Thus, it may be more straightforward for employees to ascertain the dates of the guaranteed three-month ‘open period’ than for an unguaranteed ‘open period’.
They're right that a s.63(2) application has certain (almost) guaranteed open periods.  However, this response does not at all account for the availability of s.63(1) applications or s.132 applications, which do not follow on the heels of a 'guaranteed' open period.  Furthermore, it fails to appreciate that there are legitimate scenarios where the reasons a bargaining unit wants to decertify arise after the expiration of a collective agreement (i.e. because of dissatisfaction with the ongoing bargaining process).

In such scenarios, the only real course of action available to a bargaining unit member is to make the application without knowing if it's timely, and keep his/her fingers crossed.

It's an unwieldy process, which many bargaining unit members are unable to pursue without assistance, and they have to pay for such assistance out of their own pockets.  It's not cheap, and a lack of knowledge as to whether or not the application is even timely - meaning that the legal fees incurred in the process could well be for naught - is a significant disincentive to proceeding with the application.

What's more, there is no good policy rationale for keeping bargaining unit members in the dark about the conciliation process.  They are stakeholders in the process, and there's every reason for them to be entitled to be kept up-to-date regarding collective bargaining and conciliation.

So what we have is an absurd reality where stakeholders in the process cannot know of the status of the process, even though their legal rights and remedies turn on the status of the process.

What's the Solution?

The reality is that it isn't a complicated problem, and there are several possible solutions.  The easiest solution doesn't even require statutory amendment; it simply requires an about-face from the Ministry of Labour, to be willing to advise bargaining unit members (or their counsel) whether or not a conciliation officer has been appointed, and whether or not a "no board" report (or conciliation board report) has been issued.

However, this still puts the ball in the employees' court to proactively seek out the information and know where to look.  In this particular context, in light of the broader access to justice issues, the less burden you place on individual employees, the better.  The longer-term solution is to recognize the bargaining unit members as stakeholders in the process by implementing statutory reforms to keep them in the loop, requiring the employer to post notices in locations where they are likely to come to the attention of bargaining unit members of:

  • the appointment of a conciliation officer under s.18 of the LRA;
  • the appointment of a mediator under s.19 of the LRA;
  • the appointment of a conciliation board or the issuance of a no board report under s.21 of the LRA; and
  • the issuance of a report by the conciliation board under s.34 of the LRA.
To the extent that these notices affect employees' rights to bring a termination application, they should be on forms which explain these effects.  (So the notice of the appointment of a conciliation officer should indicate that the right to bring a termination application is suspended until certain criteria are fulfilled; a notice of a no board report should indicate that the right to bring a termination application will be available again as of a particular date.)

One might also consider adding a notice requirement for other events such as first contract arbitration.

Reform #2:  Inform Bargaining Unit Members of Open Periods

Information about open periods is fairly limited.  In the modern information era, there are certain online resources - a Google search relating to the decertification process will bring you to results such as a prior entry in this blog, a helpful guide from, etc.  However, all online descriptions of open periods, of necessity, deal in abstractions, with a lot of if's and or's.  It's never easy reading for somebody without legal training, and to many people it's simply inaccessible.

What many bargaining unit members need, in order to be able to meaningfully consider whether or not they want to initiate a termination application, is a simple application of the rules to their collective agreements.  So if I'm in a bargaining unit with a collective agreement effective from January 1, 2014, for a five year term, what I need to know is something to this effect:  "You may bring an application to terminate the union's bargaining rights between October 1 and December 31 in the years 2016, 2017, or 2018.  Following the expiration of the collective agreement on December 31, 2018, if no new collective agreement has been reached, you will still be able to bring a termination until a new collective agreement is reached, a conciliation officer is appointed, a lawful strike commences, or the OLRB orders otherwise."

Simple, to the point, and combined with a few other notice requirements (such as the ones I suggested above), it would ensure that employees know what they need to know.  Ultimately, the point is to tailor the notice to the specifics of the collective agreement.  As well, the notice should point bargaining unit members in the right direction in case they choose to exercise their right to bring an application.

So the question is how to tell them.  There are three possibilities:  Mandate that collective agreements include such a notice (and that all bargaining unit members receive a copy), permit or oblige the employer to keep such a notice posted throughout the currency of the collective agreement, or permit or oblige the employer to post a notice whenever an open period occurs.

The third option is ideal.  The first is not really capable of addressing open periods under s.63(1) or s.132 of the LRA, and the second, while acceptable, also has its limitations.  The point is to actually disseminate information regarding their rights and remedies, ensuring that people make educated and meaningful choices, and that means maximizing the information's visibility and the likelihood of it being noticed when it has a meaningful impact for the employees.  As well, while I would be loathe to put too many mandatory posting requirements on employers - they have enough such things already - I believe that it's better not to leave them discretion in this particular area.  (This isn't because employers aren't generally going to jump at being able to tell employees that they can get rid of the union.  Rather, it's because it removes the question of employer motivations from the equation.  If they posted the notice, it's not because of anti-union animus; it's not to put pressure on the employees to go one way instead of another; it's simply because they were obligated to do so.)

Reform #3:  Relieve Applicants of Red Tape

The application process is intimidating, in part because of the elaborate paperwork requirements.  Filling out the necessary documents isn't that difficult, though there are issues with the information being asked of employees.  (For example, it's relatively unusual that the individual bargaining unit members can identify the "senior union official responsible for the bargaining unit", and particularly in larger bargaining units it's relatively improbable that a bargaining unit member will know the number of bargaining unit members, all work sites, and appropriate voting locations.  None of these issues are particularly critical, in most cases, but most applicants looking at the application form won't know that.)

But the real problem is requiring the assembly of termination packages.  The termination package for the union includes a notice, a copy of the application, a blank response form, three information bulletins, and part of the Board's Rules of Procedure.  The package for the employer includes similar (but not entirely the same) documents, plus an additional document.  Both packages need to be complete, and even in the correct order, and they each typically exceed 40 pages.  (Which is insane, considering that most of the pages are just information bulletins or blank forms available for download on the OLRB website, and are typically served by fax.)  Then, on top of that, the applicant needs to actually file the application, which means sending a different (though somewhat less daunting) package to the Board.

There's a similar model across Board applications, and in many contexts it kind of makes sense:  Board applications move really fast (usually), and so you want to be giving the other parties everything they need to respond.  So in a certification application, the union has to serve the employer with a package, which tells the employer everything they need to know to respond quickly.  Since the employer probably has no familiarity at all with the labour relations regime, that's important.

However, in the overwhelming majority of termination applications, the applicant is by far the least sophisticated party in terms of labour relations knowledge and experience.  Both the employer and union have been around the block in terms of the OLRB; how on earth does it make sense to put the burden on the individual employee to make sure that they're aware of the procedural requirements?

The fix really isn't anything too magical.  It doesn't require statutory or regulatory reform.  It requires modifications to the Board's process and forms:  First off, one form which includes the core information of the application and notices to the union and employer.  Secondly, page one of that form should (a) highlight the urgency of the party's response and (b) provide a URL and a phone number (for those few who still don't know how to use the internet) which can be used to acquire a respondent's or intervenor's package, including the necessary blank response form, Schedule C as needed, information bulletins, and rules of procedure.  (How hard would it be for the OLRB to create a single downloadable pdf for each of the employer and union packages?  I'd do it myself, but the Board amends one or more of the documents a bit every few months, so it might be tricky for a third-party publisher to keep it up-to-date.)


Put briefly, I think the changes we need are as follows:
  1. Notice requirements within the LRA for collective bargaining related steps (including conciliation and others);
  2. Notice requirements within the LRA of open periods; and
  3. Simplifying the paperwork for an application to terminate bargaining rights.
I'm not recommending changes to the substantive requirements for a decertification application.  (One might reasonably argue that, when the vote itself is determined by a majority of votes cast, requiring 40% support among eligible voters to justify a vote at all is a little high.  But there are good reasons to have a threshold - at some level - and require an applicant to get evidence that the threshold is met.)  But making the process more user-friendly simply makes sense.

Don't get me wrong, I've gotten a number of paying clients in the door who wanted to decertify a union and were so intimidated by the process that they felt the need to hire a lawyer.  The lack of accessibility is literally cash in my pocket.

But I wonder:  For everyone who actually comes to me to decertify a union willing to pay my fees, how many people are there who would avail themselves of the right to bring such an application if it didn't require them to pay me hundreds of dollars per hour?

The reforms I'm proposing herein are not radical.  They do not place particularly onerous or unprecedented obligations upon anyone.  They may not be the only options for dealing with these problems, but the problems they address are very real and unjustifiable in a regime intended, at its very core, to protect the interests of the workers.  (Indeed, the very existence of the first problem is completely irrational and absurd.)


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.

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