Lecture 17: Timeliness of Certificatino and Decertification Applications
basic principle is that union may apply to certify annly unit that is not already
covered by bargain at any time.
o however, there are bars designed to balance the need for stability against the
need to allow employees to get rid of a union it isn't satisfied with and the
need of the employer to avoid constant certification campaigns
Typically a union that has failed to organize a workplace is barred for a period of
time for apply for certification of the same workplace.
o cannot attempt to certify over and over
o s. 19 in BC
22 months between attempts to certify
o s. 19 also sets out "open season" for decertification and "raids"
only in the 7th and 8th month after an agreement
Process to decertify
o 45% support, then grace, then vote.
where the unit is already reprsented by another union, bars are tighter for rival
unions attempting to raid.
o typically newly established unions get around a year where they cannot be
raided or dsiplaced
o may be extended by legal strike and lackout.
where collective bargain achieved, rival unions have limited periods where they can
campaign "open season"
o in BC, 7th and 8th month of each year
If fraud shown by union during certification, union decertiifed.
Decertification follows same timeliness requirements as decertification by a rival
If trade union fails to negotiate, renew or administer a collective agreement for a
very long time, it may be viewed as having abadoned right
typically a change in corporate identity of the employer terminates the collective
bargain by common law
statute sets out provisions that may carry over the collective bargain to new
o typically only where the business is sold, but courts have been flexible in
basically where there is a sale of a business or part of a business, the bargaining
rights attach to the new employer
o where everything is liquidated, may not truly be sale of a business
o contracting out is NOT successorship
transfering the work, not the business
Canada Post fought hard against contracting out to 7-11, but in most of the cases
the Board found it was not a sale of business
Ajax (Town) v. National Automobile.... (1998) ONCA, Upheld by SCC
Town contracted bus drivers from Business for some years Decided it wanted to take back the bus service into direct control, ended contract
Hired own staqff, much of whom formally worked for B
Union wants declaration that this was sale of the business and so collective bargain
should be carried over, and Labour Board Agreed
statute sets out the succession rules.
o when an employer sells business to successor, collective bargain carries over
o so was this a sale of business with town as successor?
SOR here patent unreasonable.
Key part of the contractual relationship was the town's desire to have a stable
busdriving workforce who knew the routes and allowed passsenger recongition
when hiring workforce after terminating K, key goal of twon was to acheive
"substantial continuity" in workforce.
Board concluded that the stable workforce was the must valuable part of B's
by acquiring the workforce previously employed by B, the town transferred to itself
an essential element of that business
o this was sale of a business in the board's view.
Div. Ct. disagreed, finding no legal nexus or connnection here tantamount to a sale.
CA thinks the statutory definitino is inclusive, including all manners of dispositions.
o "other disposition" convers pretty much any kind of transaction.
Since hte primary part of B's business was the provision of skilled employees, and
the employer took these employees, the town had aquired a part of B's business and
was a successor employer
o the Town took not just the work formerly down by the charterways, but also