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The Open Period is Coming for Ontario’s Construction Industry! Here is What Employers Need to Know About Union Raids and Decertifications.

By Mike MacLellan and Danielle Jager

It’s kind of like the Olympics.  Every three years we get to watch exciting high-stakes battles between seasoned competitors.  Except instead of nations competing in sports, we have trade unions competing for the support of workers in the construction industry.  Ok so maybe it’s not THAT MUCH like the Olympics…

What is the “Open Period” in Ontario’s Construction Industry?

The construction industry’s “Open Period” occurs in the final two months of the collective agreement.  Most agreements are synchronized, meaning that for most employers in construction, the open period occurs at the same time every three years for two months.

The upcoming “Open Period” will be from March 1, 2022 to April 30, 2022.

During the Open Period unionized employees in the construction industry can apply to the Ontario Labour Relations Board (“OLRB”) to decertify their current bargaining agents and end the application of the applicable collective bargaining agreements (“CBAs”) through a Termination Application. Rival unions can also apply to the OLRB to raid the current union’s representation rights through a Displacement Application. The ultimate decision of whether an application succeeds will be made by the OLRB based on support for the application by workers who were employed by the employer and doing work under the collective agreement on the application date.

While the decision to decertify or raid a union lies respectively with the employees or alternate trade unions, it is still important that a construction employer be aware of their rights and responsibilities should either application be filed.

The Employer’s Role During the Open Period

Once a party files a Termination or Displacement Application with the OLRB they must also deliver it to the employer. In an application to terminate bargaining rights, the employer has the option to intervene in the proceeding and make representations in its best interest.  Even if the employer does not intervene, it is required to provide information and documents regarding its employees in order for the OLRB to adjudicate the application.  In a displacement application, the employer is entitled to file a response to the raiding union’s application, and the incumbent union will have the opportunity to intervene on its own behalf.  Again, even if the employer does not file a response, it will no doubt be compelled to provide all arguably relevant information and documentation so that the two opposing unions can litigate the application.

The employer must file its intervention or response to the Board within just two (2) business days. The deadlines are extremely short and failure to respond, or respond on time, has serious consequences. The employer could lose all legal rights to participate in the application and lose the chance to raise any issues with the OLRB regarding the union that will represent the employees or the ability to identify which employees fall within the bargaining unit and ought to have their votes or otherwise membership evidence considered. The OLRB rarely extends these timelines so the employer must make important strategic decisions and file its response within the deadline.

Employers Should Stay Prepared During the Open Period

Since the Ontario Labour Relations Board deadlines come up so quickly, employers can prepare in a number of ways for the construction open period. The single most important thing that a construction employer can do is keep a record of all work and workers during the open period.  Significant disputes often arise with respect to whether certain workers were at work on the application date, whether they were performing the right kind of work on the application date, and whether they were employed by the company or an independent subcontractor.

For each day of work during the open period, an employer ought to be able to provide all information and documents that show:

1. Every site in Ontario where work was being performed (including site addresses);
2. Names of every worker performing work;
   1. You should also be able to show when each worker started working for your company, and how they got hired.
3. Specific description of the work being performed by each worker each day, including tools and materials used in the work;
   1. You will certainly need to provide time sheets, pay records, and daily task lists covering work on each day in the open period.
4. Names and identities of site superintendents, supervisors, and forepersons;
   1. Your on-site representatives will need to provide their daily logs, and it is a good idea to have photos taken of work being done on the site each day.

Obtaining and keeping these documents on an ongoing basis during the open period will save a great deal of stressful work when an application comes in and you have only two days to file the appropriate documentation and full details of who was working on your sites on any given day, and what they were doing.  Be sure to instruct your site superintendents, supervisors, and forepersons to keep proper and thorough records of work activity on the site.

Employers Should be Aware of Avoidable Hazards

While these upcoming two months are an open period for employees and unions, it is essentially a “closed” period for employers. Any applications that are “initiated” by the employer will be dismissed by the OLRB. Remarkably, “initiated” is given a broad definition. The application does not have to actually be initiated by the employer to be dismissed, the employer’s conduct only has to amount to a “significant or influential involvement” for it to be a sufficient reason to dismiss the application. Influential involvement can range from more direct conduct like hiring an employee for the purpose of filing a termination application, to even more innocent seeming conduct like allowing an employee to use the employer’s office equipment and supplies to prepare or file an application.

To ensure an application is not dismissed due to employer influence it would be prudent for employers to avoid conduct such as:

• Allowing raiding unions access to employees on the work site or during work hours. Section 77 of the Act provides that no union or person on behalf of a union has the right to access to workers during work hours for the purpose of persuading them to support or displace a union. (But beware that an incumbent Union still retains their rights to access their members in the normal course.)
• Deviating from standard practice in respect to employees, meetings, breaks and access to the employer’s property and supplies.
• Encouraging employees to assert their rights in favour of decertification or displacement.
• Discussing decertification or raid applications beyond the straight facts or correcting misleading propaganda.
• Instructing or advising employees on how to file or participate in an application.
  • It is easy enough for any affected employee to simply Google “how to decertify a union” for example, and turn up reliable information and guidance.
• Hiring a lawyer to support the employees in advancing a Termination Application or giving the employees funds to hire a lawyer themselves.

Employers Can Still Assert Their Rights

The name of the game is “business as usual”.  So long as an employer is conducting itself as it would during the other 34 months of the collective agreement, it should be able to illustrate that it has not initiated an application or provided improper support.

What employers can do during the construction open period includes:

• Ensure that all decisions regarding hiring, termination, layoff, discipline and even compensation are done in standard business practice and can be supported.
• Keep clear, accurate and up to date records of who is working, where they are working and what they are working on.
• Be educated on how to act during the open period to avoid giving the incumbent union any ammunition in their application. Unions will almost always claim employer involvement in an attempt to block the process of their decertification, which they do by simply checking a box on the response form.
• Be cognizant of union tactics and avoid any discussion with a union representative about the open period or any applications.Unions and their supporters are increasingly secretly recording workplace conversations in order to support claims of employer initiation.

The last and most important thing employers could do during the open period to protect themselves is contact one of the experienced lawyers from CCPartners to represent your business. The lawyers at CCPartners have extensive experience representing employers in the construction industry and can assist you the open period.

CCPartners publishes an article on the Open Period every three years.  Click here to review our 2019 blog focused on avoiding pitfalls.