Decertification vs. Certification

In Manitoba, the rules are strict regarding an application to cancel the certificate of a union, commonly referred to as “decertification.” The same rules apply if there is a collective agreement after an employer voluntarily recognizes a union – it’s just called “termination of bargaining rights.”

There are many differences between certification and decertification, making it much more difficult to decertify a union than it is to certify a union. These differences are mainly a result of the language in The Labour Relations Act (the “LRA”) Although we are only scratching the surface, some of the differences are:

• strictly limited timeframes, or “windows”, for filing of a decertification application;
• higher percentage support for a decertification is required;
• no guaranteed vote if the support threshold is met on decertification;
• requirement to establish the voluntariness of support to decertify, but not to certify;
• longer period of time from application to day of vote on decertification; and
• no percentage threshold for automatic decertification (currently 65% or more for certification).

Another major difference between certification and decertification is that, with certification, the LRA requires that evidence of union support (union cards) be verified by the Labour Board only. The employer and affected employees are not permitted to know who signed a union card or how many were signed. However, there is no confidentiality for employees who sign up in support of a decertification. All of the support evidence (including the names of employees supporting decertification) are provided to the union and the employer by the Labour Board!

Further, an applicant for decertification must be prepared to testify and/or bring other witnesses to explain how support was gathered and “satisfy” the Board that there was no employer involvement.

Recent Decision

The LRA tilts the playing field to encourage certification of unions, while making it more difficult to decertify. However, in a recent case advanced by counsel at Taylor McCaffrey LLP (Ryan Savage / Charles Roy), Venusio, United Steelworkers Local 9074 and Winnipeg Dodge Chrysler, the Manitoba Labour Board applied some common sense to the rules for gathering of decertification support.

In that case, a bargaining unit employee with no supervisory or managerial duties filed a decertification application. The application was timely because the union was certified by the Labour Board over a year earlier, but there was no collective agreement in place (one of the limited opportunities to file).

The applicant gathered support for the application in the workplace, and during regular business hours. He signed up most of the supporters, with help from one other employee. Employees were asked to sign individual letters in support of decertification, as opposed to a single petition. However, a significant number of the individual letters of support were not properly or fully completed, with details and information (including place of signature) missing. Many signatures were not witnessed.

The Board conducted a vote approximately 6 weeks after the application was filed. The ballot box was sealed pending a hearing to deal with the union’s objections to the application.

The union raised numerous arguments to request that the Board dismiss the application for decertification without counting the ballots, including:

1. the applicant was associated with management because he was the second cousin to the employer’s general manager;
2. the employer engaged in unfair labour practices, including by facilitating a transfer of the applicant into the union bargaining unit in order to lead the decertification; among other allegations;
3. the applicant provided misleading information and attempted to coerce employees;
4. the employer had previously engaged in unfair labour practices against the union;
5. the forms submitted as evidence of support were deficient;
6. the applicant did not call all of the individual supporters as witnesses;
7. the employees were approached for support at work, during work hours.

In a separate decision, the Labour Board dismissed the union’s unfair labour practice complaint, on the basis that the various allegations were not supported by the evidence. Turning to the decertification, the Labour Board confirmed that its 2001 case Integrated Messaging remains the law in Manitoba. A summary of the Board’s findings is set out below.

The onus is on an applicant to satisfy the Board that any evidence of support for decertification represents the voluntary wishes of employees signing. If management “or employees associated with management” are involved in a petition to decertify, the support is not treated as voluntary. The attempt at decertification will fail.

An applicant for decertification must provide “cogent evidence regarding the origination, preparation and circulation of a petition or other documentation in support of the application . . .” This includes calling one or more witnesses based on personal knowledge. In this case, any defects with individual support forms not being filled out fully was cured by witnesses confirming their own support of the application and/or the applicant confirming the receipt of the signed forms. Although many forms were not witnessed, it was sufficient that the employees signing the individual forms personally returned them to the applicant. The Board distinguished between the individual support forms used in this case, and a general petition circulated around a workplace with multiple names on a page.

Regarding support gathered at work, the Board referred to Integrated Messaging, which stated that it is a factor to be considered, although not prohibited in LRA or sufficient to defeat an application on its own. There is no prohibition in the LRA against discussions in the workplace about union matters, including as it relates to decertification, unless it disrupts the operation. The discussions at work were not in the presence of management, were brief and mostly during lunch or breaks. There was no evidence of the activities being known or supported by the employer. This did not amount to disruption or employer influence.

The Board said that there is no requirement to call every employee supporting the decertification in all cases. While it must vigilantly scrutinize the voluntariness of support, “perfection is not the standard” when these applications are often filed by employees who don’t have in-depth knowledge of the law and the case law. Minor defects in written materials do not result in automatic dismissal.

The familial relationship with management requires scrutiny, but does not result in an automatic inference of employer influence. The applicant and general manager denied having a social relationship, and their relationship was not well-known at work. On these facts, it was determined that the average employee would not associate the applicant with management.

Takeaways

Unions know the rules about certifications and how to solicit support. It’s their business.

The rules about decertification are complex. Employees generally don’t know the rules, so they frequently do it wrong, despite having enough support. Employers generally don’t know either. Employer missteps can jeopardize a decertification attempt by employees.

We can advise employers on how to manage the labour relations risks and issues during a decertification process. We can also arm employers with appropriate information that may be shared with employees who are considering or pursuing decertification.

DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

If you would like legal advice, kindly contact the author(s) directly or the firm's Chief Operating Officer at pknapp@tmlawyers.com, or 204.988.0356.

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