Canada Industrial Relations Board

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Information Circulars

No. 7

The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.

APPLICATIONS FOR CERTIFICATION

Section 8(1) of the Canada Labour Code (Part I - Industrial Relations) states:

"8.(1) Every employee is free to join the trade union of his choice and to participate in its lawful activities."

Employees may join together and seek representation by a trade union to have a "collective" voice in determining their wages and other terms and conditions of employment with their employers. This is the essence of collective bargaining.

The trade union may then apply to the Canada Industrial Relations Board to be certified as the bargaining agent to represent the employees in collective bargaining with their employer. Once certified as bargaining agent, the trade union enjoys the exclusive right to represent the employees and may serve notice to bargain on the employer to commence the collective bargaining process. The employer must then meet with the union, and both parties must bargain in good faith with a view to entering into a collective agreement.

This information circular describes the certification process under the Code.

The Certification Process Simplified

In considering an application for certification, the Board asks itself a number of basic questions.

(1) Does the Board have jurisdiction?

(2) Is the application timely?

(3) Is the employee organization that filed the application a trade union within the meaning of the Code?

(4) Is the proposed bargaining unit appropriate for collective bargaining?

(5) Does the trade union represent the majority of the employees in the bargaining unit deemed appropriate by the Board?

Jurisdiction

The Board will have to satisfy itself that the employees for whom certification is sought are employed on or in connection with a federal work, undertaking or business, and therefore come under its jurisdiction. Federal enterprises are defined in section 2 of the Code.

When can an application be filed ?

An application for certification can be filed with the Board at any time, where a trade union has not already been certified to represent the employees.

In certain other circumstances, in the interests of stable industrial relations, the Code places some restrictions on when an application for certification may be filed. Where a trade union is certified, an application may not be made by another trade union until one year after the original date of certification. Where a collective agreement is in force, an application for certification may only be made during the "open period" in that collective agreement, even if the incumbent union is not certified. The open period in a collective agreement having a duration of one, two or three years is the last three months of the agreement. Where the collective agreement is for a duration of more than three years, the agreement is "open" during the 34th, 35th and 36th months, and during the last 3 months of each year after that the collective agreement continues to be in effect. A collective agreement remains "open" after its termination date, until a new agreement is reached (an application for certification may be filed during that period).

An application for certification must not, except with the consent of the Board, be made during a strike or lockout that is not prohibitied by the Code and that involves employees in the unit.

About Trade Union Status

A trade union is defined in the Code as "any organization of employees, or any branch or local thereof, the purposes of which include the regulation of relations between employers and employees."

A trade union could be an international or national union, or a local union, a council of unions, or an "in-house" employee association.

To establish its status as a trade union, an applicant organization must provide the Board with, among other things, a copy of its constitution, by-laws and charter. A key element in the Board's consideration as to whether an employee organization "meets the test" of a trade union is its independence from the employer: it must be free of influence from the employer and able to represent the employees "at arm's length" in collective bargaining with the employer.

What is an appropriate bargaining unit ?

When a trade union applies to the Board for certification, it must describe the group of employees it wishes to represent. The group identified in the description is known as the proposed bargaining unit.

The Board has the responsibility to determine a bargaining unit that is appropriate for collective bargaining purposes, and it exercises a considerable amount of discretion in making that determination. The Board does not always agree with the bargaining unit proposed by the union in its application, nor does it necessarily agree with any bargaining unit that may be suggested by an employer, or to which both parties may agree. In the interests of consistency, the Board makes its own determination of "a unit appropriate for collective bargaining" based on the facts and circumstances present in each case, and on past decisions issued in similar cases.

In arriving at a determination, the Board takes many factors into consideration. These include the nature of the industry, the history of collective bargaining in the industry, the geographical distribution of the employer's operation, the community of interest of the employees, the viability of the bargaining unit, the potential for industrial peace and labour relations stability, the wishes of the employees, the submissions of the parties, and the various types of employees sought to be included in or excluded from the bargaining unit.

The Board has found nation-wide bargaining units to be appropriate in some cases, such as in the railway and airline industries and at Canada Post, and regional bargaining units in other cases, such as in the trucking industry. Geographical bargaining units comprised of employees of more than one employer have been found appropriate in the longshoring industry. Individual, site-specific bargaining units, such as a mine, a radio station or a branch of a chartered bank, have also been determined appropriate.

In some industries, craft or occupational-family bargaining units are to be found. Examples are pilots, flight attendants, ships' officers, and construction industry trades, such as carpenters and pipe fitters.

The Board has also found bargaining units comprised of supervisors, professional employees and private constables to be appropriate.

While the Board generally favours broad-based all-employee bargaining units, it must respect the intention of Parliament, as expressed in the Preamble to the Code, to encourage free collective bargaining and facilitate the acquisition of bargaining rights by employees.

In addition to the general considerations discussed above, some more specific factors pertaining to the issues of "who is an employee" enter into the Board's thinking in determining bargaining units.

Who is an employee ?

The Code defines an employee as "any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations."

In keeping with its responsibility to promote collective bargaining and extend the Code's provisions to as many employees as possible, the Board takes the approach that it must not exclude persons from a bargaining unit unless it is satisfied that they perform management functions or are employed in a confidential capacity in matters relating to industrial relations, or that it would be inappropriate to include them.

To what extent must these elements be present in a person's job for the Board to conclude there is a conflict of loyalty sufficient to exclude the position from the bargaining unit? The Board has held that the criteria most indicative of "management functions" are the authority to make the original or final decision in situations of dismissal, promotion and demotion. Other criteria used by the Board include hiring, planning and decision making, policy making, participating in collective bargaining negotiations and in the grievance procedure, and establishing and administering budgets.

The Board takes a similar restrictive view of what comprises confidential capacity in matters relating to industrial relations. The confidential matters must relate to industrial relations, and the disclosure of such industrial relations information must adversely affect the employer. The work of those persons must involve that type of information as a regular part of their duties.

Based on the facts of each case, the Board has found dispatchers, foremen, supervisors and mid-level managers to be employees within the meaning of the Code. Depending on the circumstances, they have been included in a bargaining unit with other employees, or placed in a separate bargaining unit.

In considering proposed exclusions, the Board looks beyond the titles of the job and examines the actual duties of the position.

The onus for establishing that a person is not an employee within the meaning of the Code is upon the party proposing the exclusion from the bargaining unit.

Professionals are employees within the meaning of the Code, as are dependent contractors and private constables. The Code suggests that professionals should belong to a bargaining unit with other professionals, and prohibits private constables from being included in a bargaining unit with any other employees.

The Board views part-time employment as consisting of two categories, i.e. regular part-time employees and casual employees. To distinguish between the two categories, the Board applies the test of regularity of employment rather than the number of hours worked per week. Regularly scheduled part-time employees who work some hours every week over a period of several months, even though the number of hours per week may be low, may be considered employees and are included in the bargaining unit with regular employees. Other part-time employees, typically those who are "on call" to replace regular employees who are on vacation or who are ill, and who do not work on a regular basis, are often referred to as "casual" employees. The Board considers the status of casual employees on a case-by-case basis, and may or may not include them in the bargaining unit.

In organizing a group of employees and proposing a bargaining unit to the Board, a trade union should be mindful of these considerations, as should an employer when it formulates a response to an application for certification.

Determining the Representative Character of the Union

The Code provides that the Board must determine the membership standing of the union as of the date the application for certification was filed or as of a date deemed appropriate.

"17. Where the Board is required, in connection with any application made under this Part, to determine the wishes of the majority of the employees in a unit, it shall determine those wishes as of the date of the filing of the application or as of such other date as the Board considers appropriate."

The employees who were working for the employer on that date, and employees who had joined the union up to and including that date, are compared to determine the representative character of the union. However, the Board must first determine an appropriate bargaining unit, and then the "test of membership" is applied to those employees who, on the date of filing of the application, were in the bargaining unit found appropriate by the Board.

In making a determination concerning the application for certification of a trade union, the Board will consider employee support: without holding a representation vote, it can either certify a union that has obtained over 50% of employee support or dismiss the application if a union has less that 35%. The Code requires that the Board order a vote if a union has obtained between 35 and 50% of employee support.

Evidence of Membership in a Trade Union

In support of an application for certification, a trade union must provide the Board with evidence that employees want the trade union to represent them as their bargaining agent. According to its Regulations, the Board may accept as evidence of membership in a trade union proof that a person has signed an application for membership in the trade union and has paid at least $5.00 to the union for or within the six-month period preceding the filing date of the application. The Board will ask the union to provide original applications for membership cards, duplicate receipts for fees received, and documentation that the union has deposited the money in its bank account. The responsible union official will also be required to sign a statement attesting to the accuracy of the records provided to the Board.

Confidentiality of Evidence of Membership

The Board's Regulations also provide that the information regarding the membership of any employee in the union is regarded as confidential, and is neither made known to the employer, nor made public in any way.

Where can an application for certification be filed ?

An application may be filed at any of the Board's offices. The application for certification form is available in PDF format and MS-Word format. At this time, the Board cannot accept any applications for certification in electronic format as it is not yet ready to receive them. You are asked to continue sending them by fax, by courier or by mail until further notice.

The date of filing of an application is the date it is received at the Board's office if it is hand delivered, faxed or sent by regular mail. If the application is sent by registered mail, the date of filing is the date it is mailed to the Board.

It is not necessary to send evidence of membership to the Board at the time an application for certification is filed, but the Board's Regulations stipulate that an application for certification must be accompanied by a separate and confidential statement indicating the number of employees in the proposed bargaining unit that the applicant claims as members. During the investigation of the application, the applicant must provide the Board officer with the membership cards, which will be returned after the Board makes a determination.

What happens next ?

The Board will acknowledge receipt of the application in writing and provide a copy of the application to the employer. The parties will be provided with a schedule for processing the application. The employer will be given an opportunity to file a written response to the application and will be required to provide certain information and documentation, including a list of the employees who were employed as of the date of filing of the application, to the Board and to the other parties involved.

The employer will also be required to post a Notice to Employees in the work place to advise them of the application. This notice, which is prepared by the Board, provides information about the application and gives the employees an opportunity to write directly to the Board to express their views about it.

To ensure the timely processing of certification applications and in furtherance of the Code's objectives, the Board's practice is not to grant any extensions of the time limits provided in the schedule given to the parties other than in exceptional circumstances.

According to the Code, an employer may not, after it receives notice of an application, alter terms and conditions of employment of employees affected by the application, unless the Board gives its consent in writing. So as not to influence the wishes of its employees, an employer must conduct "business as before" while the application is before the Board.

The Board will appoint one of its industrial relations officers, usually someone from an office nearby, to conduct an investigation of the application. The employee list and organizational chart provided by the employer will be disclosed to the union in the course of the investigation. Except in cases where the Board may require additional information, the investigating officer will only provide the parties with a letter setting out his or her understanding of the proposed bargaining unit and any disputed positions together with the list of documents filed with the Board. A copy of the letter or the report is disclosed to the parties, as are copies of all written submissions that have been sent to the Board by the union, the employer, employees and any other parties.

The only information that is not disclosed to the parties is any indication that a person has joined the union, or has written to the Board to express either support for or opposition to the union. This information is kept confidential and is reported privately to the Board by its investigating officer.

The Board's Decision

When the investigating officer's letter or report has been received by the Board, the matter is ready for consideration by the Board.

In most cases, the Board can make a decision on the basis of the investigating officer's letter or report and the written submissions of the parties, without conducting a public hearing.

The Board will make all required determinations, including the composition of the appropriate bargaining unit and, if the union has the support of the majority of the employees, will grant a certification order to the union. If the union represents between 35 and 50% of the employees, the Board will order a representation vote. If the union represents less than 35% of the employees, the Board will dismiss the application.

If the application for certification is a "raid" on the bargaining rights already held by another trade union, the applicant union must demonstrate majority support. Even then the Board will normally order a representation vote between the two unions.

Representation Votes

Where the Board orders a vote to determine whether the employees want, or do not want, the union to represent them, the Board will specify who is eligible to vote and will appoint a returning officer. The returning officer is usually the industrial relations officer who conducted the investigation.

The returning officer will consult with the parties about arrangements for the conduct of the vote, and will require the employer to post in the work place a Notice of Vote, which is prepared by the Board. Representation votes are usually conducted by ballot box at the employees' place of work during, preceding or following normal working hours. Parties are entitled to be represented by scrutineers whose responsibilities are to assist the returning officer in identifying voters and to help ensure that the vote is conducted in a fair and impartial manner. It is a secret ballot. The vote is usually counted immediately following the closing of the polls. The result is determined on the basis of the majority of those who vote.

Where employees work at many different locations, or where the bargaining unit has a regional or national character, the vote may be conducted by mail or a combination of ballot box and mail.

Once the results of the vote are known, they are submitted to the Board, which makes its determinations based on the wishes of the employees.

Prohibited Conduct

The Code sets out certain prohibited conduct for both trade unions and employers, much of which applies while an organizing campaign is underway, and while an application for certification is pending before the Board.

Pursuant to section 94, an employer or person acting on behalf of an employer may not interfere with the formation or administration of a trade union, take disciplinary action against an employee, or otherwise discriminate against an employee for seeking to join a trade union or participate in the formation of a trade union.

Section 95 of the Code sets out certain prohibited conduct for trade unions. For example, unless an employer consents, a trade union's representatives are not permitted to campaign or attempt to organize workers at their place of employment during their working hours.

In addition, section 96 contains a general prohibition: no person can use intimidation when union membership is at issue.

A breach of these provisions of the Code may be the subject of a "complaint of unfair labour practice" filed by a trade union, an employer or an individual. The Board is empowered by the Code to hear and determine complaints of this kind and provide appropriate remedies. Complaints of unfair labour practice are discussed in Board Information Circular no. 5-01, which is available on request.

Access to Employees

In some parts of Canada, employees work in locations that are remote and inaccessible to union representatives. Fly-in mines and offshore drilling operations are but two examples. On application, the Board may authorize union representatives to have access to the work site for purposes of organizing employees.

"109.1(1) On application by a trade union, the Board may, by order, require an employer to give an authorized representative of the trade union mentioned in the order, or the Board , or both, the names and addresses of employees whose normal workplace is not on premises owned or controlled by their employer and authorize the trade union to communicate with those employees, by electronic means or otherwise, if the Board is of the opinion that such communication is required for purposes relating to soliciting trade union memberships, ..."

What happens next ?

If the Board certifies a trade union to represent a group of employees, the trade union or the employer may by notice require the other party to commence collective bargaining. If the Board rejects an application for certification, it will not normally consider a new application for the same group of employees for a period of six months after the date on which the application was rejected.