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INFORMATION BULLETIN -
CERTIFICATION
Purpose
This bulletin provides general information regarding the certification
process pursuant to the Labour Relations Act. It is for information purposes
only; it is not Labour Relations Board policy and it is not legislative
interpretation. Further, it is not legal advice.
Introduction
The Labour Relations Act provides a process for employees to join or form a
trade union. A union may become the exclusive bargaining agent for a unit of
employees in two ways. It may be voluntarily recognized by an employer or a
union may apply to the Labour Relations Board for certification.
If a union applies to the Board for certification, employees vote on whether
or not a union will represent them, unless the employer and union agree that
a vote is unnecessary. The vote is by secret ballot. A union is certified
only if the employees decide to be represented by it. Certified unions can
require employers to bargain in good faith. This usually results in a
collective agreement. Such an agreement covers all employees in the
bargaining unit.
I. Overview
The Labour Relations Board supervises the certification process by receiving
applications from trade unions; processing the applications and disposing of
these applications.
II. Application for Certification
To begin the process, the union must file an application for certification
in the form prescribed by the Board and the application must meet several
criteria: it must be properly signed in accordance with the Act and must be
verified by affidavit or declaration by the appropriate union officials; it
must be timely; it must be accompanied by membership evidence showing that a
majority of the employees in the bargaining unit applied for support the
union; the bargaining unit applied for must be an appropriate unit; the
application must contain the correct legal name of the employer and the
union. These criteria are generally reviewed below and may vary in some
cases.
Application Form
Unions must file an "Application for Certification" form. The President and
Secretary or two officers of the trade union, or a person authorized to do
so by resolution of the trade union, must sign the application and complete
the form’s declaration. The forms are available at the Board’s offices or
on
the Board’s website.
A complete application for certification includes:
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a completed application form
signed on behalf of the union;
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a completed declaration; and
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evidence in the form of
membership cards/applications for membership of a majority of the
employees in the unit applied for.
Unions must file their
constitution and by-laws and names and addresses of its officers with the
Board if they are not already on file with the Board.
Timeliness
Applications are subject to time limits. These are outlined below.
No existing Collective Agreement
An application can be made at any time, if there is no existing collective
agreement or certification order covering employees in the unit.
Previous Applications
Where an application for certification has been refused by the Board, the
union must wait six months to file a new application for the same or
substantially the same unit of employees. The Board may reduce this time by
granting special leave to the union upon an application by the union.
Existing Collective Bargaining Relationships
Where there is an existing certification or collective agreement in place,
unions may apply for certification during the following open periods:
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Within the last 2 months of
an existing collective agreement with a two-year or less term; or
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Within the 11th or 12th
month of the second or subsequent year of an existing collective
agreement with a term of more than two years, or in the 2 months before
the end of the term.
Proof of Support
Certification applications must be accompanied by evidence of support of
employees in the proposed bargaining unit. Upon filing, a union must show on
the face of the application that it has evidence of over 50% employee
support. Membership evidence is an application for membership in the union
signed not more than 90 days prior to the filing of the application for
certification with the Board.
Appropriateness of the Bargaining Unit
Applicants provide their own bargaining unit description as part of the
application for certification. The Board determines if the proposed unit is
appropriate for collective bargaining. The Board may modify the proposed
bargaining unit. If it is not appropriate, certification will not be
ordered.
Union’s Name
The Board uses a union’s legal name and local number, if applicable, on
certification orders. Many unions use an abbreviation (e.g., CUPE, IBEW) but
each union has only one true legal name.
Employer’s Name
Employers operate under a variety of names, including divisions, trade
names, abbreviations or names of institutions. Each employer should use and
be referred to by its proper legal name. Geographical references, division
names or institution names are more appropriately put in the description of
the bargaining unit.
III. Processing Applications
When an application is received, a Board officer is appointed to the file.
The affected parties are notified of the application. The officer arranges
for a vote to be taken unless the parties agree in writing that no vote is
necessary. The officer investigates the application and prepares a report
which is provided to the parties for comment. These steps are generally
reviewed below and may vary in some cases.
Appointing an Officer
When an application is received, the Chief Executive Officer appoints an
officer to investigate. Board officers are impartial employees of the Board.
They do not advocate for employees, unions or employers. They make inquiries
to assist the Board in making its decisions.
The officer begins by reviewing the union’s status as a trade union. The
Board presumes a previously certified organization is a trade union within
the meaning of the Act. If not previously certified, the union must satisfy
the Board that it has met the filing requirements of the Act.
Notifying the Parties
The Chief Executive Officer sends written notice to the employer, trade
union and any other party affected by the application. The notice contains:
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a copy of the application (names of employees who signed union membership
cards is confidential to the Board and is not supplied to the employer);
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information about the possible employee representation vote, including
copies of relevant legislation; and
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information about the filing of a reply to the application within 10 days
of receipt of same.
Officer’s Involvement
The officer contacts the employer to discuss the application, including:
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generally acquainting the employer with the procedures which the
application will undergo;
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informing the employer of the possibility and logistics of a vote, if one
is required;
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discussing the bargaining unit applied for; and
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explaining the procedure for the employer’s option to reply to the
application.
The officer seeks from the employer:
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a contact person, phone and fax number;
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the employer’s legal counsel, if any;
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an employee list, with classifications. In accordance with the Board’s
Rules of Procedure, this list must immediately be provided to the Officer
upon receipt of the application;
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the number of work sites, their location, shift times and names of
employees working at each site; and
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any other information required at this time.
The officer obtains a complete list of employees, indicating the work site
and classification of each employee. This list will be supplied to the
union. The officer, union and employer discuss which persons the parties
believe are included in, or excluded from, the unit for the purpose of
preparing a voters’ list.
If necessary, the officer may review the employer’s records for the purpose
of attempting to verify the employee list supplied by the employer.
Information may be needed on whether the employees are full-time, part-time,
casual, or employed in managerial or confidential labour relations
positions. The officer may ask the employer to identify which employees
worked on the date of application.
The voters list is prepared by the officer and includes the names of
employees whose ballots may be disputed by either party.
The officer, union and employer review the date, places and times suitable
for voting. Where a vote is required, it must be conducted within 5 working
days of the Board’s receipt of the application, unless exceptional
circumstances apply.
The Vote
The officer prepares a Notice of Vote and arranges for its posting at the
work site. The Notice should be posted in a conspicuous place. The Board has
Policy circulars on Procedure for Secret Ballot Votes and Representation
Votes which are accessible to the parties on this website.
The officer conducts the secret ballot vote at the set time and place.
Scrutineers may be present representing the union and the employer. In
certain circumstances, votes may be conducted by mail.
Any ballots in dispute are segregated by the officer during the voting
process. The segregation process is discussed in the Policy circular titled
"Procedure for Secret Ballot Votes".
Officer’s Report
After the vote has been conducted and the reply and response filed by the
parties, the officer completes the investigation and prepares a report which
is given to the parties. The report includes:
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the proper name of the applicant union;
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the proper name of the employer;
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a summary of the views of the parties on the appropriate bargaining unit;
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a calculation of the level of employee support, whether the union has met
the 40% support level required to have the vote counted, or if no vote is
conducted, whether the union has the support of a majority of the employees
in the appropriate bargaining unit;
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the positions of the parties on any disputed ballot or dispute over
inclusions or exclusions of positions;
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a discussion of any outstanding issues raised by the parties during the
investigation; and
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a list of employees in the unit. Note that the officer prepares two
employee lists - one which is released to the parties showing persons
employed in the bargaining unit applied for, but will not show if they
supported the application. The second list is confidential to the Board and
does show which employees supported the application by signing an
application for membership in the union.
The written report of the officer is sent to all the parties.
Comments on the Report
All parties may comment on some or all of the contents of the report. The
parties are given two working days to reply to the report.
IV. Disposing
of the Applications
Board meetings are regularly held to review applications. Hearings may or
may not be held to assist the Board in its consideration of applications.
Board Meetings
The Board meets to review the file which includes the application, the
replies filed, the Officer’s report, the replies to the Officer’s report,
and other relevant documents. Unless the Board determines that further
investigation is required, and if no issues prevent the processing of the
certification application, the Board will assess whether or not a hearing is
required before making a decision.
In making its decision, the Board determines whether or not the applied for
unit is appropriate for collective bargaining. Where it considers it
relevant, the Board may determine other issues raised by the parties such as
inclusions in or exclusions from the unit, or disputed ballots. If a vote
has been taken and the union has employee support in excess of 40% of the
appropriate bargaining unit, the Board may order that the ballots be counted
and the success of the application depends on the results of the vote.
The Hearing
If the Board determines that a hearing is necessary, hearing date(s) will be
set. The hearing is before a three-person panel consisting of the Chair (or
a Vice-Chair), one employer representative and one employee representative,
all of whom are Board members.
Evidence and argument are presented by the parties. The parties may be
represented by legal counsel.
Following consideration of the evidence and argument adduced at the hearing,
the Board determines relevant issues related to the application.
Certification Order
If the Board issues a certification order, the trade union and employer
receive original copies. The certificate includes the proper names of the
trade union and employer, the bargaining unit description and the date of
certification.
Section 50 of the Act sets out the effect of granting a certification
regarding the exclusive authority of the bargaining agent of a unit.
V. Check List for Applications for Certification
Ensure the application is supported by:
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trade union documents if not already on file with the Board;
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a properly completed and properly signed application form;
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attached evidence of membership support; and
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a completed declaration by appropriate union officials verifying the
contents of the application form.
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