Commerce 387 Term Paper

The Certification Process

Dany Olynyk 11063957 dao256

Submitted to: Angela Giroux Steven Seiferling

March 3rd, 2011

Steve and Angela: My paper was written on Topic #3, the certification process. I found that much of the material covered in this subject also covered the Appropriate Bargaining Unit topic, #7, so parts of that topic have also been included, to some extent.

In any relationship between employees and employers, there is quite certainly an inherent imbalance of power present. This natural discrepancy has likely been around as long as employment itself, and is rather easy to comprehend. Human beings are all in need of some sort of income, be it food, money, or otherwise, in order to meet basic needs. An employment relationship offers an avenue for this income to be earned. As a result, the employer holds considerable power over the employees, as it is them who are facilitating these needs being met. Over time, workers experienced hard conditions in order to earn income. While they recognized their own dependence on employers for a salary, they also began to notice that their bosses no doubt needed employees in order for their businesses to run efficiently as well. This empowerment of workers led to many labour movements, as early as 1794 and throughout the 19th and early 20th centuries (Carter, England, Etherington, & Trudeau, 2002). Eventually, governments passed laws making trade unions legal, and employment law changed forever. An integral part of workplaces forming unions rests in taking the idea of unionization, and putting it into action, with the end result being a workplace that is home to unionized employees. Therein lies the certification procedure, which to this day remains a heavily contested topic, among politicians and labour advocates alike. The reasons that a workplace may want to unionize vary in every situation. In some cases, the employer has pushed employees to the point that they feel their collective power is not being respected, prompting them to take action and send a message. Other times, the knowledge of other workers in a similar workplace reaping the benefits of unionization is cause enough to

seek certification, even if the employment relationship is a good one. No matter what the motivation is behind groups deciding to unionize, they all must follow a certification procedure in order to have their rights covered in the Trade Union Act. After some initial decision to look into unionization, there may be some off-location, often secret meetings to determine which employees will spearhead organizing campaigns. These meetings will also usually consist of representatives from unions, who will also assist heavily in the certification process. From here, the first consideration which must be undertaken is to determine the appropriate bargaining unit which is seeking certification. A bargaining unit is a group of employees defined on the basis of the employer for whom they work and the positions they occupy (Adell, et al., 2004). The workers within a bargaining unit are also subject to a wide variety of differences. Some may be represented on the basis of their occupation, such as some craft unions. Other units consist of people from a wide variety of disciplines within the same workplace, such as both cashiers and meat cutters at a grocery store. The unit can represent workers at just one location, or represent several different workplaces, such as city workers at different shops in the City of Regina. As discussed in class January 27th, the bargaining unit has two major functions. The first is to serve as an electoral constituency to determine if certification (or, should the time come, decertification) is the alternative most sought after by its members. Secondly, it functions as a basis for collectively bargaining. Only one union can represent an individual bargaining unit. While a group of workers can only have one union represent them, a workplace may have more than union in it, as seen in Casino Regina.

There is some debate as to which type of bargaining unit is deemed most effective. The 1974 case of BC Insurance Corp. of British Columbia v. CUPE states the preferred bargaining unit should be one that is broad, rather than specialized, in order for relations to be more efficient for both parties (Adell, et al., 2004). As a result, Labour Boards favored large, broad units as opposed to small, focused ones. However in a Saskatchewan case in 1990, Retail Wholesale Department Store Union v. O.K. Economy, their viewpoints began to change. They found that larger may not always be better, and instead seven factors should be considered, including stability of departments, individual wishes, and historical patterns of organization in that particular industry. It is also important to remember that boards are not ignorant of employer rights either, and will often make decisions based solely on if the group is an appropriate bargaining unit, not the best appropriate bargaining unit. It is in the best interest of both parties to make sure the definition of who is in the bargaining unit, and who is not, is very clear. This will help to avoid both unclear situations, and costly litigation and court fees should those situations need them to arise in the future. One of the main things to keep in mind here would be employees that may fall under independent contractor status. This issue dips into the Labour Standards Act. A Saskatchewan Labour Standards Act adjudication performed by Geoffrey England in the 2009 Saskatoon case, Irvine and Montreuil v. 1108195 Alberta Ltd. sets three essential elements that must be present for a for a person to be an employee, as opposed to an independent contractor. They are:
(A) There must a sufficient degree of bureaucratic control by the employer over the employee that is consistent with the presence of an employment relationship. (B) The worker must be economically dependent on the employer (C)The worker must not be an entrepreneur operating his or her own business as a going concern, but must form part and parcel of, or be integrated within, the employers business (England, 2009)

Finally, the status of part-time and casual employees should also be considered when determining the bargaining unit. Part-time employees are included in CBAs, and often have full sections devoted to them. Casuals are not as straight forward, and may or may not be included in the CBA. The Labour & Employment Law Casebook points to the 1992 Canadian Imperial Bank of Commerce v. British Columbia Government Employees Union case. The board states its concerns with the casual workers being part of the bargaining unit, such as the possibility of them having the same full rights as full-time workers despite having only a marginal connection with the given industry (Adell, et al., 2004). The Labour Board in that case does, however, go on to grant employee status to the casual workers, and considers them as part of the unit. It is also important to keep in mind other employees such as temporary Co-op Students, or Seasonal staff. For simplicity reasons, many times these employees are not members of the collective unit. After the appropriate bargaining unit has been considered, it is time to consider whether or not this group of people even wants to be unionized. At this point, there should be plenty of rumblings of unionization in the workplace, and perhaps more of the off-location, secret (to management) meetings will take place. Union organizers and union drivers from the workplace will be present to answer questions and provide information. At this point, assuming there are at least three employees in the bargaining unit, the certification process moves on to acquiring a representative vote. As per section 6 of The Trade Union Act, the vote must adhere to several conditions. First, it is to be a secret ballot of all employees eligible to vote to determine the question. These signed cards, must report that at the time of application at least 45% of the employees in the appropriate unit support the application (The Trade Union Act, Section 6(1.1)). As per Section 6(1.2), this evidence, along with the signed cards must be filed within 90 days of the application. After receiving the application and

cards, the board will order a workplace vote. In previous years, if there was a clear majority, or over 60% support in the cards of the application, there was no need for a vote. However now it is mandatory for all workplaces to hold a certification vote. The final support must be at least 50% of all eligible employees + 1 in order for the certification order to be made. The application itself must contain several pieces of information for the board to review. First, the union doing the representing must identify itself and where it and its representative(s) are located. From there, they must identify the employer, and their location. Next, they name their bargaining unit, and state that it is appropriate for the purpose of bargaining collectively. They must also provide the approximate number of employees in the bargaining unit, and provide cards representing a majority of these employees. There are also other questions asked in the application, such as possible past representation. There also may be a requirement that the board prove that the union itself is bona-fide, meaning they have an actual reason for requesting certification. For example, consider a group of workers wanting to unionize solely under the pretense of getting one particularly unfair supervisor fired, after which they would file for decertification. The application would very likely not be approved, and the workers would need to seek alternate measures in order to have their problem resolved. From here, the Labour Board will assess the application, and if all proper requirements have been met, it will likely be approved. Once the certification order is in place, a bargaining relationship has been created, officially making the union and agent of the unit. They now have the right to bargain collectively, and in good faith. We should remember that the application will not be allowed under special circumstances. For example, if the bargaining unit has taken part in

an illegal strike during the certification attempt, they may not receive a certification order. Furthermore, if a time bar is in place, meaning that the unit has voted on certification in the past six months, they must also wait tell that period is over. There have been significant changes to the certification procedure in Saskatchewan since 2008. At one point, only 25% of the appropriate unit needed to sign cards. Obtaining 45% is a much more substantial number, and will be harder for union organizers to do. What makes the task at hand even more difficult to complete now as compared to in 2007 is the cards must be signed within 90 days of the application, as opposed to 6 months in previous years. Also, keep in mind that this vote was not always mandatory. As previously alluded to, there is no more automatic certification. These changes come as a result of Bill No. 6, An Act to amend The Trade Union Act. This bill was brought in shortly after the Saskatchewan Party came into power in 2007. Some pro-labour advocates lashed out at the governments new employer-friendly laws. The National Union of Public and General Employees went so far as to say: The measures are widely seen as pay-offs to the business community for longstanding financial and ideological support (NUPGE, 2008). Their President, Larry Hubich said of Saskatchewans workers rights after the passing of Bill 6: It appears that this legislation, at least in my opinion, is the worst legislation for workers in the country. It appears the changes came about solely due to a change of political leadership in Saskatchewan, after the New Democratic Party lost power in the 2007 Saskatchewan Provincial Election. Though pro-labour groups have taken strong stances against this bill (and Bill 5, The Essential Services Act), Im not positive that it will have quite the drastic effect on the formation of unions that they think it will. In my viewpoint, I dont view the changes as making the certification process harder, rather less easy (great logic, I know). I doubt many workplaces that fail to gain certification orders in 2011 would have passed under

2007 laws. Put simply, what remains the same is that if a workplace wants to unionize, it will unionize (except for the odd Wal-Mart). If it is true that the new bills will allow employer interference with the certification process, then Im sure it is something that will be looked into. I am no labour lawyer, but if this interference is common in union drives in Saskatchewan currently, I havent heard about it. As a whole, I believe the certification process in Saskatchewan is one that is fair to employers (whose rights are often overlooked), while still offering employees fair access to certification orders. Labour law in this province has come a long way in recent decades, and the next years should be just as interesting to watch.

Bibliography
Adell, B., Arthurs, H., Benedet, J., Blackett, A., Brown, R., Carter, D., et al. (2004). Labour and Employment Law: Cases, Materials, and Commentary 7th Edition. Toronto: Irwin Law. Carter, D., England, G., Etherington, B., & Trudeau, G. (2002). Labour Law in Canada, 5th ed. Markham: Butterworths. England, G. (2009). Appeal of Wage Assessment Order under the Saskatchewan Labour Standards Act, R.S.S. 1978, c. L-1, between 1108195 Alberta Ltd cob Star Enterprises and Paula Irvine and Tanis Montreuil. Saskatoon. The Labour Standards Act of Saskatchewan National Union of Public and General Employees. (2008, May 16). Saskatchewan Party rams anti-labour bills through legislature. Retrieved February 26, 2011, from National Union of Public and General Employees: http://www.nupge.ca/news_2008/n16my08a.html Anti-Labour Legislation Tabled by Saskatchewan Government. (2008, March 7). Retrieved March 1, 2011, from National Union of Public and General Employees: http://www.nupge.ca/news_2008/n07ma08a.htm Saskatchewan Labour Board. SR 163/72 Form 1 Application for Certification. The Trade Union Act of Saskatchewan, including amendment Bill No. 6 "An act to Amend The Trade Union Act (2008) In Class Materials: Reviewed PowerPoints and Notes taken during lectures in: COMM 381, instructed by Scott Walsworth COMM 382, instructed by Keir Vallance COMM 387, instructed by Angela Giroux and Steven Seiferling