Employer Actions and the Decertification of a Union...
By Michael G. Sherrard
Unionized employers are often approached by employees who wish to decertify a union because they are dissatisfied with the representation they receive. The process used to decertify a union and appropriate response of a representative of the employer can be broken into 3 categories:
1. Timing of the application;
2. Requirements of the application; and
3. Role of the Employer.
Timing of the Application
Generally, Ontario’s Labour Relations Act restricts an application for decertification to the following periods of time:
1. twelve (12) months after a union was certified, if a collective agreement has not been reached;
2. six (6) months after the commencement of a lawful strike or lockout; or
3. during the final three (3) months of a collective agreement (or the three (3) months prior to the third and subsequent anniversaries of the collective agreement if the agreement lasts in excess of three years).
Content of the Application
The Labour Relations Board will then hold a secret ballot vote at which employees will be asked whether or not they wish to remain represented by the union. If the majority of votes cast are against the union, the employer will be decertified.
Role of the Employer
While applications for decertification will be processed during the above-noted periods if there is evidence of sufficient employee support, the Labour Relations Board will dismiss an application if it believes that the employer initiated the application or otherwise improperly influenced the application.
As a result, if an employee asks questions about decertifying a union, the employer must ensure that its answer does not initiate an application that would not have otherwise occurred, or instruct an employee regarding the process used to decertify a union. Furthermore, the employer cannot express encouragement for the filing of an application to decertify the union.
Instead, it is advisable that the employer instruct the employee to consult a labour lawyer, the Ontario Labour Relations Board, or visit any of a number of websites (such as www.labourwatch.com) that offer practical or professional assistance relating to applications for decertification.
Additionally, an employer is permitted to continue to operate its business and make statements to employees that it will treat employees the same, whether unionized or not, or reiterate its belief that it has a better one-on-one relationship with employees when there is no union.
While restricted in its ability to promote the decertification of a union, it is important for all employers, whether unionized or not, to maintain an appropriate relationship with employees such that non-unionized employees do not seek representation and those who are unionized independently seek out the methods by which they can decertify the union.
HR-Fusion’s Strategic Partner, Sherrard Kuzz LLP, is one of Canada's leading employment and labour law firms. They represent the interests of employers, unionized and non-unionized, and operate in both the public and private sectors. Their clients are domestic and foreign ranging in size and complexity of operations from small, single-location, single-business enterprises to large, diverse multinational corporations.
Sherrard Kuzz LLP is recognized for its innovative and proactive approach to the practice of law. Their lawyers spend considerable time - not billed - learning about their clients' industries, competitors, history, priorities and objectives. This detailed business knowledge enables them to advise clients proactively and strategically - often resolving issues before they become a concern.