The recent decision of the Supreme Court of Canada (SCC), Association of Justice Counsel v Canada (Attorney General), 2017 SCC 55, addressed the issue of whether a unionized employer can unilaterally introduce a policy requiring employees to provide unpaid standby duty.read more
Union Decertification: Employers, Step Aside
Canadian labour legislation, such as the New Brunswick Industrial Relations Act, is designed to provide employees with the opportunity to establish, and protect, bargaining rights. Once bargaining rights are established, through either certification or voluntarily recognition, it is very difficult for the bargaining rights to be extinguished. The legislation does provide employees with an opportunity to apply for decertification of the union. However, to be successful there needs to be sufficient employee support and no involvement or interference from the employer. It is a very difficult threshold to meet and very few applications for decertification are successful.
In the recent decision of Saulnier v United Brotherhood of Carpenters and Joiners of America, Local 1386, 2016 CanLII 76117 (NB LEB) the New Brunswick Labour and Employment Board upheld an application for decertification and addressed the union’s unfounded allegations of employer influence.
In June of 2016, Saulnier, an employee and member of the United Brotherhood of Carpenters and Joiners of America, Local 1386 (“the Union”), filed an application with the New Brunswick Labour and Employment Board to have the Union decertified. A petition signed by employees was filed in support of the application for decertification. The Union argued that the petition was not voluntarily signed by the employees. Furthermore, the Union alleged that the Employer:
- threatened and coerced its employees to sign the petition;
- informed the employees that if they signed the petition they would receive a pay increase or bonus; and
- that the employees were not properly informed of the purpose of the petition.
The Union relied on the New Brunswick Court of Appeal decision of Fortis Properties Corp. v United Steelworkers of America, Local 1-306, 2007 NBCA 16, whichestablished that a petition filed in support of an application for decertification may be deemed involuntary when there is the “slightest hint” of employer involvement. Employer involvement includes involvement in the originating, circulation, execution or delivery of the petition.
In this case, Saulnier had witnessed all of the signatures of the employees on the petition. There was no evidence adduced by the Union that Saulnier was acting on behalf of the Employer. Further, there was no evidence that he had threatened or coerced the employees to sign the petition, or indicated to them there would be a bonus or an increase in pay if they signed, or that he provided an ultimatum to the employees to sign the petition. Rather, the evidence established that Saulnier had said very little in his meetings with the employees, and that each of the employees who testified understood what they were signing.
The Board concluded that there was no evidence of employer involvement or influence. The Board held that there was no reason to disregard the petition signed by the employees and that there was sufficient support for the application for decertification.
What This Means for Employers
Union membership rates have been on the decline in Canada over the past several decades. The rate of unionization has fallen from 37.6% in 1981 to 28.8% in 2012.1Employers may find that employees within their unionized workplaces are dissatisfied with their union and are seeking to terminate the union’s bargaining rights.
The decision by employees to commence an application to decertify a union should be made without any involvement or influence from the employer. It must be the employees’ decision to start the process. Once an employer becomes aware that a petition for decertification is circulating, the employer should do nothing. Specifically an employer should not, among other things:
- offer incentives or rewards to employees to commence an application and/or sign the petition;
- threaten employees if they do not sign the petition;
- fund the application process; or
- allow employees to use work resources for this process.
As stated above, even the slightest hint of employer involvement is enough to dismiss an application for decertification. For example, in Canadian Paperworkers Union (CPU), Local 16 v. T.P. Downey & Sons Ltd.,  NBIRD No. 7, a petition was circulated in the presence of one member of management. The Board concluded that management’s presence tainted the petition and created the suspicion of employer influence. The petition was found not to be reliable evidence of the free and voluntary wishes of the employees and was therefore rejected.
The test for finding employer influence is very low. Actual evidence of employer involvement is not required so long as the slightest hint of employer involvement can be established. Employers who learn that employees are pursuing an application for decertification are encouraged to consult with legal counsel to ensure they do nothing that would interfere with the employees’ application for decertification.
1 See Statistics Canada “Unionization rates falling” (September 28, 2016) at http://www.statcan.gc.ca/pub/11-630-x/11-630-x2015005-eng.htm