Tuesday, July 2, 2013

Can Construction Industry Unions be Decertified?

I've previously posted about decertifying unions in the non-construction industry, showing how 'easy' the process is in a tongue-and-cheek kind of way.

The reality is that there are a lot of nuances, even in the non-construction industry, about when and how to file an application to terminate bargaining rights.  It's a complicated framework, and the trouble is that employees have to navigate it on their own, or pay a lawyer out of their own pockets to do so.

Your union - who is usually supposed to assist you with navigating the labour relations regime - will not have much reason to be helpful with such matters, and in fact can throw up some pretty insurmountable barriers if they get a whiff that you're thinking of bringing a termination application.  And if the employer gives you any assistance understanding how to decertify the union, that's likely to be fatal to your application.  Which means that a bargaining unit member has to go and pay a lawyer out of his own pocket to terminate bargaining rights.

It doesn't often happen.  I've done a number of such matters, occasionally involving a group of bargaining unit members pitching in for legal fees, but the reality is that unions have a lot of resources to pour into these matters, and they often will, driving up the employee's legal fees as well.  This is the point.

Nonetheless, it can be done.  Outside of the construction industry, the bargaining unit has power - namely, the Rand Formula means that the bargaining unit members are not beholden to the union outside of their relationship with the employer, and they have the power to refuse to ratify a collective agreement.

So, in the ordinary course, a union has to show support among the members of the bargaining unit, then has to win a representation vote, then has to negotiate a collective agreement acceptable to the employer and employees.  Failure can - with certain logistical challenges - lead to decertification.  Then when the collective agreement runs its course, there are other opportunities to decertify.

In the construction industry, however, a union gets certified much more easily, and once they are certified, it is much harder to be rid of them.

Construction Industry Certification Process

First of all, the certification process is different.  There are seldom representation votes in the construction industry - a union need only show 55% support of the bargaining unit in order to be automatically certified as the bargaining agent for the bargaining unit, without a representation vote.  This means signed union cards.  Make no mistake:  Signing a union card is not an "I'm interested in learning more" or an "I'm interested in picking up more work outside this employer", and there will not be an opportunity to vote later on if the union decides to try to certify your employer.  Once they have cards signed by 55% of the bargaining unit, they're in.

And it gets better.  The dynamic nature of the construction industry workforce means that the OLRB has adopted a particularly pliable interpretation of the bargaining unit, being the people performing bargaining unit work on the day the Application is filed.  (There are some nuances, too, but not worth going into here.)  So suppose you work for an employer that ordinarily employs 50 people (in a particular trade, in a particular area, etc.), generally being the same 50 people, on a handful of job sites.  On one day, due to extreme weather (or any other reason), all but one of the small job sites gets shut down, and only 3 people are working that site.  If the union has gotten 2 of those people to sign union cards, they can file an application on that date, and they will be certified automatically, without a vote, and without the other 47 people usually working for that employer even being counted.

And it still gets better:  There are times a union can get certified even without having the support of the bargaining unit, through what is called "remedial certification".  The theory is that the employer can take such oppressive actions to put down a union that there is no way that a vote could show the employees' true intentions, so the remedy is to bring in the union even though the employees don't want it (because of course any free-thinking group would want a union?).

In practice, the way that this often works is that a new employee will start working with the intention of bringing in the union. He often doesn't particularly care about doing the job well, and if his co-workers do care about their work, then he'll often rub them the wrong way, getting branded even among his peers as an unproductive troublemaker.  Even if the union organizing efforts don't come to the employer's attention, it usually won't be lost on the employer that this guy is a non-producer, and that he's causing friction on the team, so he will probably get fired.  Then, the union makes an application for remedial certification, alleging that he was fired because of his union organizing efforts.  This triggers a reverse onus:  The burden is upon the employer to prove that the decision to terminate has absolutely nothing to do with his union organizing efforts.  (Not even just that it wasn't the main reason, but that it wasn't even a factor in the decision.)  If the employer can't prove that, then the union automatically gets certified.

Then What?

This is where the construction industry framework gets really complicated:  Sometimes, immediately upon certification, the employer becomes bound to a pre-existing collective agreement.  There is no need to negotiate, no requirement for the employees or employer to consent to it.  It's just there.  In other contexts, the union may have to negotiate a collective agreement with the employer, but even in that context there is no requirement for employee ratification.

If there's no automatic collective agreement, and no collective agreement is reached within six months, then an "open period" starts, and the employees may be able to bring an application to terminate bargaining rights.  But even then, that's not necessarily straightforward.

A union is able to block most "open periods", including this one, by seeking the appointment of a mediator and/or conciliation officer.  In this case, the open period is blocked until - in most cases - 30 days after the Minister releases a notice that no conciliation board will be appointed (a "no-board report").

The issuance of a no-board report also triggers the right to go to first contract arbitration, to have an arbitrator determine the terms of the collective agreement.  Once a collective agreement is in place, any open period expires - you can't bring a termination application until the earlier of the last 3 months of the operation of a collective agreement, or the 34th month of operation of a collective agreement.  So there may or may not be a window where an application can be brought after the issuance of the no-board report, and it may not be a particularly long window.

Now here's the rub:  The Ministry of Labour treats the notification of the appointment of a conciliation officer and the issuance of a no-board report as private correspondence between it and the parties (i.e. the union and the employer).

In other words, an employee won't know that a conciliation officer has been appointed (closing off his opportunity to bring a termination application) nor whether a no-board report has been issued (potentially reopening his opportunity to bring a termination application) unless he is told by the union (and why would they?) or the employer (which might be argued to taint the application with employer influence).  They may have to bring their application, likely incurring the legal fees to do so - bearing in mind that the average construction worker isn't experienced with that kind of paper-intensive process - without any basis for knowing whether or not the application will be 'timely'.

This is an absurd state of affairs.  It is difficult enough for bargaining unit members to justify spending their own money on legal fees to try to bring a termination application when they are entitled to do so, but to define their entitlement to bring a termination application with reference to factors of which they will have no knowledge?  The message this sends to bargaining unit members is clear:  Don't bother trying to exercise your rights.  You aren't really involved in the labour relations regime, anyways.

After the Collective Agreement is Reached

As noted above, another open period begins in the last three months of operation of the collective agreement.  (For collective agreements with terms of more than three years, open periods exist in the last three months of every year starting in year three.)

If no new collective agreement is made before the old one expires, the open period continues until a new collective agreement is reached, but this open period is again subject to the above caveats regarding no-board reports.

So the only times when an employee can be confident that he is able to bring a termination application is in those 3-month open periods.

But again, there's a catch.  Termination of bargaining rights is a democratic process, as one might expect:  In order to successfully terminate the union's bargaining rights, you need to show 40% support at the outset (i.e. through a petition), and you need to get majority support at a vote.  And the catch is that, in the construction industry, most collective agreements have a security clause, meaning that employers are only able to hire union members, as referred by the union.  In other words, when you're trying to garner support against the union, you're seeking signatures from union members who, in most cases, were referred to the employer by the union in the first place.

The challenge is self-evident.  The union's security clause has the impact of enabling itself to loosely define the voting constituency of the bargaining unit, meaning that an incumbent union is in a deeply-entrenched position.

Ultimately, decertifying a construction industry union isn't impossible.  But the cards are definitely stacked against the individual bargaining unit members who may want to do so.

Discussion Questions:

(1)  Is there a justification for not keeping employees in the loop regarding the appointment of a mediator, the issuance of a no-board report, etc.?  What would the impacts be of requiring employees to be notified of the steps being taken through official channels?  Or of removing the impact those steps have upon employee rights?

(2)  Should the termination process be more accessible?  Should employees necessarily know when and how they are permitted to attempt to terminate the union's bargaining rights?  Perhaps the open period should even endure through statutory conciliation?  Would this encourage unions to be more open and active in keeping their bargaining unit members informed and happy?  Or would it encourage them to make otherwise-unnecessary concessions to establish a new collective agreement more quickly, to close the open periods as soon as possible?

(3)  It is well-known that it is difficult if not impossible to terminate bargaining rights, and this leads to a firm resistance to workplace organization by those who don't want a union there.  If bargaining rights were more transitory, if a union's rights could be more easily terminated or displaced, could this make people more open to union organizing efforts?

(4)  Do you agree with remedial certification?  Doesn't the very notion that an employer can irreversibly taint a vote undermine the democratic underpinnings of the labour movement in the first place?  Even if they can and do taint the vote, how does this logically lead to certification of a bargaining unit that simply doesn't support the union?  Unionization has a very significant impact on employee rights, which is in some ways detrimental, and reasonable people can absolutely disagree on whether or not to unionize, or to organize with a particular union, and it would be simply wrong to presume that any free-voting constituency would support a union.  So how can we justify imposing a union, with all that entails, on an unwilling bargaining unit, because of employer misconduct?  Doesn't that kind of look like you're punishing the employees for bad actions by the employer?


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.

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