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Application for Union Certification: What You Need to Know

When faced with a union organizing campaign, Ontario Employers are often faced with short deadlines, and likely terms they’ve never seen before. One of these may include an application for union certification. The implications of certification can have a high impact on the relationship between Employers and Employees. Employers should be prepared to address the issue head-on while protecting their legal interests. 

What is an Application for Union Certification?

In Ontario, an application for certification is a submission by a proposed Union to the Ontario Labour Relations Board to represent a given group of employees, known as the bargaining unit. If successful, the Union is recognized as the sole bargaining agent for its workers and the Employer is required to negotiate employment terms with the Union collectively, rather than with employees individually. 

The application for certification is required to disclose the description of the proposed bargaining unit, and whether the Union has the support of 40% of them by submitting membership cards which express interest. If these criteria are met, then the Ontario Labour Relations Board may schedule a certification vote amongst the proposed bargaining unit. If more than 50% of the proposed bargaining unit supports unionization at the vote, the Union is certified, and the next step is collective bargaining with the Employer. 

How does the Application for Union Certification work?

Every application for certification will start with a union organization campaign. Employees may gather outside of working hours to discuss support for unionization or a more established union may reach out to employees to discuss the benefits of unionization in their workplace. 

Employers may become aware of the the organization campaign taking place and it is essential that the Employer refrain from retaliating against its employees. Interference with the Union organization campaign or retaliation against employees can result in a finding of unfair labour practices and remedial certification of the Union by the Ontario Labour Relations Board.

If the proposed Union can satisfy the Board that they have a minimum of 40% support for unionization, then the Employer will have the chance to respond to the application for certification. The deadline for response is a short period of two business days and the Employer will be required to list the employees in the bargaining unit and the Employer will have the chance to dispute any employees who were incorrectly included by the proposed Union. 

Employers in the construction industry will be subject to special rules which can allow for certification once the Union provides enough membership cards in favour of unionization.

After both sides have made their submissions, the Ontario Labour Relations Board will evaluate the responses and may require supplementary information or a hearing to resolve any outstanding issues. If no such issues are present, the Board will schedule a vote for certification. This often takes place within one week of the application. 

Factors that Prevent Certification

Applications for certification can fail where the Union doesn’t have enough support from the proposed bargaining unit. This may happen where employees listed in the application for certification have resigned from their employment, or the proposed bargaining unit includes management employees. 

Other factors that could prevent the Board from unionizing include the following:

  • Whether the Employer or an Employer’s organization has participated in the formation, administration or financing of the certification application. This also includes the involvement of management. However, the Board will assess the events to determine whether the proposed bargaining unit sought out the Employer’s assistance or whether an Employer is interjecting to try and prevent a unionization
  • Whether the bargaining unit is discriminatory under the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms
  • Whether an application for certification has failed its representation vote and a new application has been made within one year afterward.

Because the certification process involves short deadlines, dynamic organization campaigns, and far-reaching implications for an Employer’s business, it is important for Employers to seek competent legal advice once they become aware of a unionization campaign.

Contact Us

If you are an employer and have questions related to the union certification process or what actions you can take in relation to your union, our team of experienced labour lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800)771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.

Disclaimer: This blog is not intended to serve as or should be construed as legal advice and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882 or email [email protected]