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Author:
David Chondon

Date:
2013.01.10

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THE EMPLOYERS' EDGE

Termination and Raid Applications during the “Open Period” in the Construction Industry - the “Open Period” is Coming!

In Ontario many construction industry collective agreement negotiations take place every three years. On April 30th of this year, collective agreements in the residential and the industrial commercial and institutional (“ICI”) sectors (as well as other sectors) expire. The last three (3) months of those expiring agreements are known as the “open period”. It is important to be aware that during the “open period” construction trade unions can legally raid or displace other construction trade unions, and construction employees working under the expiring agreements have the legal right to terminate the union’s bargaining rights. For agreements that expire on April 30th, 2013, the “open period” starts on February 1st, 2013.

The decision whether or not to conduct a “raid” and file a displacement application lies solely with the construction trade union. Further, the decision to “decertify” or terminate a trade union’s bargaining rights must be made by the construction employees. However, it is important that a construction employer know its rights and responsibilities should an application be filed. By all accounts, and based on previous history and experience, it is expected there will be significant raiding activity during the upcoming open season.

As a construction industry employer, protect your rights

A construction union that attempts to raid and displace an incumbent union must serve on the employer and the incumbent union an “application for certification”. Similarly, construction employees wishing to terminate the union’s bargaining rights (“decertify” the union) will have to serve an “application for termination of bargaining rights”. However, prior to serving either application, it must first be filed with the Ontario Labour Relations Board (the “Labour Board”). The date the application is received by the Labour Board or is sent by Canada Post Priority Courier (if filed in that manner) will determine the “application filing date”.

The timelines of the Labour Board are extremely short and meeting the deadlines in responding is critical. The failure to respond, or to respond on time, can seriously affect an employer’s legal rights. If a response is not filed within the timelines, the employer can lose all rights to participate in a union displacement application. This means that the employer can lose its opportunity to raise issues with the Labour Board regarding which union will ultimately represent the employees, identifying the proper group of employees under consideration or commenting on the applicable geographic scope of the bargaining unit.

The Labour Board’s process and deadlines

Within two (2) business days of receiving an application, an employer is required to serve on all affected parties (including the incumbent union) and file with the Labour Board a legal response. This means that the employer has only two (2) business days after receiving the application to make a number of important and strategic decisions, as well as complete, serve and file the response. The Labour Board will rarely extend these time limits, so an employer must plan to file its response within the time requirements.

The Labour Board will process the application and determine from the “evidence” filed by the union or the employees, together with the number of employees working on the application filing date, if there is sufficient support for the application. In a raid/displacement application the evidence is typically in the form of membership cards of the challenging trade union and only two (2) employees are required to be working on the application filing date in the applicable bargaining unit to make this application. In a termination application, employees would file statements that they no longer wish to be represented by the trade union. Of note, only one (1) employee has to be working on the application filing date in the applicable bargaining unit to make a “decertification” application. If the evidence filed demonstrates that 40% or more of the employees support raiding or terminating the bargaining rights of the incumbent union, the Labour Board will order a vote and the employees will cast a secret ballot. In a displacement application the employees will indicate which trade union they support. In a termination application, the employees will vote “yes” or “no” in respect of continuing representation by the trade union.

When a vote is ordered it is usually scheduled between 5 and 8 days after the application is served. Typically, a vote takes place at the affected worksite(s). The outcome is determined by 50% plus one of the employees who cast a ballot.

The Labour Board has recently published a new Information Bulletin No. 32 that reflects the processing deadlines for the filing of information by the respective parties required in resolving such applications as well as the disclosure of documents. Any issues arising in connection with the vote such as the eligibility of voters or misconduct leading up to or during the vote must be raised within strict timelines. The Labour Board will also seek to resolve these applications on an expedited basis.

Must consider several critical matters quickly

Some matters relevant to responding to such applications are entirely factual. For instance, construction employers should have readily available a current list of all construction employees, times sheets (or similar) confirming dates worked and a list of active jobsites at which employees are working. Other aspects of the response require a careful consideration of company objectives and strategy and Labour Board practices and case law. Several of the lawyers at CCP are experienced in the complex area of construction labour relations and can assist construction employers in responding to these applications.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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