Decertification still a delicate matter

Overzealous employers can get into trouble

Governments may have helped make decertification easier in some provinces, but overzealous employers can still get into trouble.

One might think certification and decertification would be mirror processes, allowing employers to get as involved in a decertification drive as they would be during certification. This is not the case, said Vancouver-based employment lawyer Greg Haywood.

Unions are more prone to launch an unfair labour practice complaints over a decertification vote, perhaps because they have more to lose, he explained. As a consequence, employers’ actions during a decertification tend to be under much more rigorous labour-board scrutiny.

What’s more, said Haywood, there’s much more room for legitimate dialogue during a certification drive. With the pretext of having to explain to workers what a collective bargaining process would look like, for example, employers have more opportunities to make comments about their views during a certification.

“There’s not the same kind of kind of knowledge gap among employees during a decertification process,” said Haywood. “And if certain employees have gotten their act together so that it looks like they have a shot at getting a decertification, the employer has everything to lose by getting too involved because you can jeopardize the whole process. And that’s the last thing that you want.”

Ontario and British Columbia have led the way in bringing in legislative and policy changes that effectively make decertification easier.

In B.C., a change in policy has given employers more freedom to communicate with employees during either a certification or decertification drive. Despite the change, Haywood said he hasn’t seen an increase in employer involvement during a decertification.

“What an employer has to do during a decertification drive is to provide information to the parties as to what the process involves. But if an employer’s fingerprints are found on an application, it runs the risk of being thrown out by the labour relations board. So the further away the employer stays from a decertification campaign, the more it is immune from an attack,” said Haywood.

In Ontario, the decertification law has earned bad marks from the International Labour Organization.

To raise worker awareness about decertification, Ontario now requires employers to post information on the process.

In a March report, the ILO’s Committee on Freedom of Association wrote that the “Workplace Democracy Act,” passed in 2000, ran contrary to the spirit of freedom of association.

“The poster and accompanying notice, being information prepared by the Ministry of Labour and posted in unionized workplaces with the Ministry’s formal endorsement may be considered, at best, as a message by the government that a decertification application would be entertained favourably and, at worst, as an incitement to apply for decertification,” the committee wrote. B.C. was also chastised recently by the committee for violating collective bargaining rights (go to, click on “Search” and enter #2483 in the article number field.)

The unions may have scored a moral victory with this decision, but their forecasts of rising decertification numbers have not necessarily been borne out.

According to the Ontario Labour Relations Board, the number of decertification applications soared markedly in the fiscal year of 2001-2002, from 129 to 180. It dropped off again the following year, back to 108.

At the Ontario Federation of Labour, president Wayne Samuelson said despite the mild impact on the actual numbers, unions object to the law in that it “empowers employers to become involved in whether workers are in a union. You’re breaking down a fundamental cornerstone of democracy, which is the right of workers to make that decision. I’ve even had employers call me who said they just didn’t want to be involved in this.”

The posters were indeed helpful in “demystifying the process,” particularly as employers in the past were not even allowed to provide workers with even basic information about the process, said Ottawa-based lawyer Andrew Tremayne. But some employers were “fantasizing” that having the posters up would spur a decertification drive at their workplace.

“Some employers like to think that a decertification is a cure-all, but you still need to create the workplace conditions to motivate employees to start the decertification process,” said Tremayne, a lawyer at Emond Harnden.

And there’s no discounting the inertia factor. “People are more inclined to stay with the devil they know — particularly if the process would require a number of individuals willing to take on the risks of stirring up emotions at the workplace in initiating a decertification process,” he said.

“And having a successful business doesn’t preclude having a unionized workforce. Some employers may think that’s the case, but it depends on who’s the bargaining agent and who’s the steward. Do they have an antagonistic relationship or a good working relationship with the employer?”

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