Late December is not only a time of celebration with family and friends but also for something else: “snap shot” union certification.
That’s when a union can gain certification of a contractor’s employees when skeleton crews are working on projects over weekends and holidays.
Here’s how it works.
As Gowling WLG associate Tushar Anandasagar explained to the Daily Commercial News, Ontario has a unique set of legislative rules governing the relationship between unions and employers in the construction industry, set out in the Labour Relations Act, 1995 or LRA.
“The LRA defines the ‘construction industry’ very broadly,” Anandasagar said. “These are businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site.”
If a business falls within the above definition, unique construction industry rules will apply.
A key feature of this is card-based certification.
Under that system, if a construction labour union can demonstrate that on the application filing date, there was 55 per cent support or more among employees working, and can also prove they were doing “bargaining unit work,” the Ontario Labour Relations Board (OLRB) can certify the union without holding a vote.
And although the OLRB can technically direct a vote, Anandasagar says experience has shown this does not occur. Certification is done if the union can demonstrate the required support.
What this means in practice is that during periods of time when site crews are reduced, for example in late December, it can be easier to reach the 55 per cent support threshold required for union certification.
“Employers in the construction industry need to be mindful of this,” said Anandasgar.
Take the case example from 2009 that remains relevant today.
Randy Cobb was carrying on business under the name, Cyber Services Electrical and Fire Alarm Specialists (CSEFAS).
On one particular Saturday, the company had only one of three project sites open. Although it was not in keeping with normal company practice, a group of CSEFAS employees asked to work that day on that specific site.
Those employees working onsite voted and filed an application via courier that day, seeking union certification with the International Brotherhood of Electrical Workers, Local 105. The company claimed that this was irregular, and that Monday would have been the correct filing day. They told an OLRB hearing that, “the application ought to be dismissed on the basis of fraud and abuse of process.”
The motion to dismiss the application was denied.
“The employees who worked for the responding party on the application filing date were in no different a position with regard to their rights as employees of the responding party than they would have been on any other day that they worked,” the board ruled. “They and the responding party were both governed by the provisions of the Employment Standards Act and the Occupational Health and Safety Act on the application filing date. None of the rights and obligations imposed by those statutes on the responding party and its employees was suspended on that date.
“In that light, there is no reason why the responding party’s employees and the bargaining agent of those employees ought not to have recourse to the rights provided by the Labour Relations Act, 1995 on a Saturday that was determined by the responding party to be a working day.”
In short, the board reasoned, “Ultimately the responding party is entirely in control of when it permits its employees to work on its construction sites. It could have said ‘no’ to the request made by the individuals in question.
“Instead, it chose on its own accord to schedule the individuals to work on that day.”
Anandasagar suggests employers remember, “the clock starts ticking” from the moment the union delivers the application to the employer. If faced with a construction industry application for union certification, seek legal advice immediately.
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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