Special thanks to our summer student Brianna Grieff for contributing to this update.

If you are an employer suddenly ambushed by a union certification application, your immediate questions are likely: what exactly is happening, and what should I do next? Briefly, you should immediately seek legal advice due to the tight timeline you have to respond. This article covers three critical aspects of the union certification process in Ontario: (1) what the process is; (2) the general timeline of events; and (3) employer best practices.

1. The Union Certification Process

During this process, a union seeks to become the official bargaining agent for a defined group of employees. In Ontario, the process is overseen by the Ontario Labour Relations Board (the “Board”) and is governed by the Labour Relations Act, 1995 and the Ontario Labour Relations Board Rules of Procedure.

There are four main stages:

(1) Union Organizing Campaign: The applicant union campaigns to seek out employee support in the proposed bargaining unit to get union membership cards signed.

(2) Application for Certification: Once a sufficient number of membership cards are collected, the union files an application with the Ontario Labour Relations Board to be certified as the bargaining agent for the employees.

(3) Representation Vote: The employees vote against or in favour of the union.

(4) Dispute Resolution: Any disputes related to the application – such as the composition of the bargaining unit or concerns with conduct during the campaign – are resolved by the Board.

2. Timeline

This section provides a quick breakdown of the four main steps. We highlight elements that employers should be aware of.

(1) Union Organizing Campaign:

• The applicant union will seek to have 40% of the employees in the proposed bargaining unit sign membership cards. The timeframe between the union gathering membership cards and applying for certification varies.
• Managers and workers with access to confidential aspects of labour relations cannot be included in the union membership.
• If less than 40% of workers have a valid membership card, the Board will dismiss the application.
• Any membership card signed more than one year before the application is filed will be discarded by the Board.

(2) Application for Certification:

• First, the union will deliver a certification package to the Board, employer, and any affected unions. The application for certification can happen at any time for an organization without a current bargaining agent. For organizations with an existing bargaining agent, the timing depends on whether there is a collective agreement, the length of the collective agreement, and whether the agreement renews automatically.
  • Two days after the delivery, the union will file the certification application with supporting documentation. The Board will send a confirmation of this filing to all affected parties. The employer has two business days to file a response with the Board and deliver a copy to the applicant union (and any other affected unions). This response can include any challenges to the bargaining unit. The employer must then confirm that the certification application has been posted in a prominent place noticeable to employees.
  • Within seven days of the delivery, anyone can submit a written statement to the Board if they believe cancelled cards were used to trigger a vote. If proven, the Board can declare that the union obtained certification through fraud.
  • By law, a freeze of employment terms starts once the union files the application for certification. This is to help maintain the integrity of the certification process. It means that the employer cannot change wages or other terms of employment during this period, unless the changes are deemed “business as usual” (i.e. they were already scheduled to occur before the application was filed).

(3) Representation Vote:

• If 40% of the workers have valid union membership cards, then the Board will contact the employer and the union to arrange a mandatory vote. The vote generally takes place online or in person at the workplace.
• Typically, the Board orders the vote to take place five business days after the receipt of the certification application.
• If 50% of the ballots favour the union, the Board will certify the union. If not, the Board will not certify the union.
• Employers can appoint a scrutineer to challenge the eligibility of any voter.

(4) Dispute Resolution:

• Within five days of the vote, the Board addresses any disputed issues between the union and the employer through written submissions.
• If any issues remain, the Board orders the following processes, sequentially, until the parties find a resolution:
  • A post-vote mediation;
  • A Regional Certification Meeting, held on the Wednesday of the third week after the week in which the vote was held; and
  • A public hearing, held on the Monday of the fourth week after the week in which the vote was held.
• After the hearing, the Board will issue a public decision that employers are required to post in a noticeable location in the workplace.
• Employers can file an application for reconsideration within 20 days of the decision, and can apply to the Ontario Divisional Court for a judicial review within six months of the decision.

3. Employer Best Practices

When an employer receives notice of an application for certification, they should immediately seek legal advice to determine how best to respond because the timelines to respond are short. There are a variety of strategic considerations and steps that an employer can take to protect its interests depending on the specific circumstances of each workplace.

Employers and their representatives should be very careful of what they say and do regarding a union during the certification process. During the certification process, employers should avoid any conduct that could be deemed unlawful under the Labour Relations Act. This includes conduct that may interfere with an employee’s ability to freely decide whether to support the union – for example, intimidating or coercive communication with regards to unionization and terminating the employment of a key union organizer. If the Board finds that an employer’s conduct is unlawful, they can automatically certify a union without a vote.

Please note that the general process above applies to Ontario and may differ depending on the applicable province. For further support in this area, please contact your Baker McKenzie employment attorney. Our Toronto team has decades of experience with domestic and international labour relations. We frequently represent employers in industrial actions, designing and implementing programs and policies to maintain positive employee relations in non-union and unionized workplaces, as well as acting as counsel in collective bargaining.