Trade Union Certification

The certification system allows employees to decide in a democratic way whether or not they wish to be represented by a trade union. A board-issued certificate gives a trade union bargaining rights on behalf of a group of employees. Similar procedures allow changes to, or cancellation of, these bargaining rights, as the circumstances of employment or the wishes of the employees change.

Trade union means any organization of employees formed for purposes that include the regulation of relations and collective bargaining between employees and employers. Trade unions represent a specific group of employees in negotiations with the employer and otherwise act on the employees’ behalf. A trade union may be a local, a provincial, national or international body. A trade union may also be an independent organization that represents the employees of only one plant or business.

Every employee has the right to be a member of a trade union and to participate in its lawful activities.

The Act applies to unionized employees in the province, but excludes those employees who, in the opinion of the Board:

• perform managerial functions;
• are employed in a confidential capacity in matters relating to labour relations; or
• are members of the architectural, dental, engineering, legal or medical profession employed in a professional capacity or instructional personal as defined in the Education Act.

The records of a trade union relating to membership and any records that may disclose whether any person is or is not a member of a trade union or does or does not wish to be represented by a trade union filed with the board or produced in any proceeding before the board shall be for the exclusive use of the board and its officers and shall not be disclosed, and such records shall not be produced or disclosed in any civil proceedings.  

The Act prohibits an employer from participating or interfering with the formation or administration of a trade union or the representation of employees by a trade union. It is entirely the decision of employees whether or not they wish to be represented by a trade union. Employers may express their views on a certification application with employees so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

Application for Certification

Four basic elements of an application for certification:

1. The application must be timely:

• If employees in a bargaining unit are not represented by a bargaining agent, an application can be filed at any time.
• If employees are currently represented by a bargaining agent, the Labour Act limits the
• periods during which a different trade union can apply for certification of the same unit, commonly referred to as the “open period” [S. 12].

2. The applicant must have status as a trade union under the Labour Act and be able to demonstrate:

• an organization of employees exists,
• its purpose includes the regulation of relations between employees and employers,
• it has a written constitution, rules or by-laws which set out the purpose and objectives of the organization and which define the conditions for membership.            

To prove status, an employee organization is generally required to present evidence at a Board hearing. Ordinarily, this is done through the testimony of the union official who has personal knowledge of the affairs of the organization. 

3. The bargaining unit requesting certification must be one that is appropriate for collective bargaining.

There can be more than one appropriate bargaining unit.

The trade union and the employer can both propose a description of an appropriate unit. The Board is not bound by a proposed description.

It is for the Labour Relations Board to determine what constitutes an appropriate unit in each case.

The Board may exclude from or include additional employees in the unit.          

Certification laws apply to general Industry which represents all the work force except the construction industry. The construction industry represents a significant and unique part of the work force, and the Act establishes some unique procedures for that industry.  In the construction industry, considerations in determining an appropriate unit include the following factors:

• geographic area,
• trade of the employees,
• all employees are employed in a recognized construction trade, and
• application is made by a trade union that has historically represented that trade.

4. Employee support:

A majority of the employees in the bargaining unit must support the application.

A majority of the employees must be members in good standing* of the trade union or have cast their vote in favour of the trade union in a representative vote.

* A member in good standing has made a written application for membership within three months immediately preceding the date on which the application was filed.

An application for certification must include all materials which establish the right to certification including:

• the proper name of the trade union and local,
• the proper corporate name of the employer,
• a description of the proposed bargaining unit,
• a list of persons in the proposed bargaining unit,
• evidence that the persons on the bargaining unit list wish the trade union be certified as bargaining agent on their behalf,
• a copy of its constitution, rules and bylaws, or a full and complete statement of
• its objectives and purposes, and
• a list of its officers.

A terminal date is set for each application. The terminal date is the deadline to all parties with an interest in the application for the filing of all relevant documentation. This would include such materials as reply documents, interventions, all membership evidence, petitions/statements of desire and counter-petitions. An interested party who does not file documents on or before the terminal date may be deemed by the Board to have abandoned any claim to be a party to the application.

Voluntary Recognition

In a certification process, an employer can voluntarily recognize and bargain with a trade union for a group of employees called a bargaining unit.  The Act allows a trade union that believes it has the employees’ support to apply to the Board for bargaining rights (the employer and trade union may apply jointly to the Board). This type of application for certification is called a Voluntary Recognition. The trade union may directly ask the employer to voluntarily recognize the union, mutually agree to the bargaining unit that will define the group of employees it will cover and agree to bargain a collective agreement. Voluntary recognition of this type is most common in the construction industry.  A Board approved voluntary recognition agreement must meet the same standards of and will have the same status the Act provides for a regular certification.  

Certification / Voluntary Recognition – Decision

The Board will issue a decision granting the application, dismissing the application or consenting to withdraw of the application.  Should the Board grant the application, a certification order is issued. 

Amendment of Certification Order  

A trade union or employer named in a certification order may apply to the Board to have that order amended. The amendment may:

• change the name of the union or employer,
• include additional classifications of employees in the unit,
• exclude specific classifications from the unit, or
• combine previous certification orders into one order.

Revocation of Certification Order  

Employees may choose to be represented by a different or no union at all. Employees interested in having no union represent them must file an “Application for Revocation of Certification Order” during an allowed window or "open period". If an employee- initiated revocation meets the requirements of the Act, and the Board is satisfied that the majority of the employees in such unit no longer wish the trade union acts on their behalf, the Board will revoke the certification of the trade union and the union no longer represents those employees.  An employer or a trade union named in a certification order may also apply for revocation.

Collective Agreement

A group of employees represented by a trade union is referred as a bargaining unit. It is the role of the board to determine who is a member of a bargaining unit. The process of certification is one of majority rule, meaning that if a majority of the eligible employees in the bargaining unit, as determined by the board, support a trade union; all employees in the bargaining unit will be included in the certification.

Once certified by the board, a trade union becomes the bargaining agent for the unit. The bargaining agent has the exclusive right to represent the employees in the unit. Once an application for certification has been filed, an employer is generally no longer permitted to negotiate working terms / conditions directly with their employees.

The negotiated terms / conditions of employment take place during the collective bargaining process.  It is through collective bargaining that a bargaining agent and an employer reach a collective agreement or contract.

The collective agreement governs the parties’ working relationship and is binding on the bargaining agent, the employer, and all the employees in the bargaining unit.