No. 1–Applications for Certification

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This document describes the procedures that must be followed by a trade union, an employee association or a council of trade unions when filing an application for certification to represent a group of employees in a workplace. It also describes the procedures to be followed by the employer and any incumbent bargaining agent that may be affected by the application after being served by the applicant.

To ensure the timely processing of the application, it is important that these Rules be reviewed carefully as amendments to the Canada Labour Code (Part I–Industrial Relations) (the Code) following the coming into force of the Employees’ Voting Rights Act on June 16, 2015 have brought about important changes to the Board’s certification procedure.

Should you have any questions concerning the Board’s certification procedure, you can contact a Board officer at 1-800-575-9696.

General

The Employees’ Voting Rights Act provides that the Board will certify a trade union as the bargaining agent for a unit of employees if it is satisfied, on the basis of the results of a secret ballot representation vote, that a majority of employees in a unit who have cast a ballot voted in favour of union representation.

In order to ensure the timely processing of applications for certification and in furtherance of the objectives of the Code, the Board will aim to commence the conduct of the representation vote 12 days after the date the application for certification is filed with the Board.

The Board has established the following procedures for the processing of applications for certification pursuant to its general powers found in section 46 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations), which provides that the Board may vary time limits and procedural requirements for the proper administration of the Code. These procedures will be implemented on a trial basis in order to assess their impact and effectiveness while the Board considers amendments to the Regulations.

You can obtain a copy of the Code and the Regulations from the Board’s website at www.cirb-ccri.gc.ca.

Filing an Application

When making an application for certification, the Board requires that the applicant serve a copy of its application for certification as well as a “certification package” on the employer and any incumbent bargaining agent. This certification package will include, in the following order:

  1. A Notice to Employer (Certification);
  2. A blank bilingual Notice to Employees (Certification) form;
  3. A copy of the applicant’s completed Vote Arrangements form;
  4. A blank Vote Arrangements form;
  5. A blank Certificate of Posting (Certification) form;
  6. A copy of these Rules of Procedure.

The forms and the Rules of Procedure are available on the Board’s website.

The applicant must serve a copy of its completed Application for Certification form as well as a copy of all documents comprising the certification package, as set out above, on the employer and any incumbent bargaining agent on the same day the application is filed with the Board. The applicant should make every effort to identify and notify affected trade unions as failure to do so may result in delays in the processing of the application. Once the application and related documents have been served, the applicant must immediately complete and file a Declaration of Service form with the Board.

The applicant must ensure to complete and include its Vote Arrangements form. Note that the applicant is NOT to deliver to the employer or any incumbent bargaining agent a list of names of union members, evidence of their status as union members, or a copy of the statement of the number of employees in the proposed bargaining unit that it claims to represent.

The applicant must submit the following information and documents with the Board when filing the application:

  1. A copy of the completed Application for Certification form;
  2. A copy of the completed Declaration of Service (Certification) form;
  3. A copy of the completed Vote Arrangements Form;
  4. The original membership evidence relating to the application (Failure to provide the evidence when filing the application for certification may result in the summary dismissal of the application by the Board.);
  5. A separate and confidential statement of the number of employees in the proposed bargaining unit that the applicant claims to represent (section 34 of the Regulations);
  6. A completed Certificate of Accuracy;
  7. A confirmation of its legal name in both official languages;
  8. If the applicant has not yet established its status as a trade union or council of trade unions with the Board, it must also submit:
    • A copy of its constitution and by-laws, charter, if any, minutes of the founding meeting, minutes of the meeting at which the constitution and/or by-laws were adopted, and minutes of the meeting at which the officers were elected. This information is also required for any member of the Council that has not established its status as a trade union with the Board.
    If any of this information is not available, a written explanation must be provided with the available documentation.

The application must be filed in person or by courier at the Board’s Toronto, Montréal, Dartmouth, Vancouver or Ottawa offices. Applications can not be filed in the Winnipeg satellite office.

An application is considered filed with the Board on the day the application and the original membership evidence are received. Failure to submit the required evidence with the application may result in its summary dismissal by the Board.

Response and Replies

The employer and any incumbent bargaining agent will have 5 calendar days 1 to file a response from receipt of the application. Upon receipt of a response, the applicant will then have 2 calendar days to file a reply.

To ensure the timely processing of certification applications and in furtherance of the objectives of the Code, the Board’s practice is not to grant extensions of the time limits for submitting information, responding and replying, except in exceptional circumstances.

Exchange of Documents

It is important to note that all documents submitted to the Board will be placed on the public record and that, pursuant to section 23 of the Regulations, parties to a proceeding are required to serve on the other party/parties a copy of any response, reply or other document filed with the Board. This requirement does not apply to the list containing employees’ home addresses and telephone numbers, the completed Certificate of Posting and Certificate of Accuracy, any documents that could reveal the wishes of the employees or that the Board declares to be confidential pursuant to sections 22 or 35 of the Regulations or documents required from the applicant to establish its status as a trade union. You are required to advise the Board in writing of the time and manner of service.

Employer’s Obligations

Upon receipt of an application for certification, the employer is prohibited, by virtue of section 24(4) of the Code, from changing the terms or the conditions of employment of the affected employees except under certain circumstances. Any questions in this regard should be referred to the officer appointed by the Board.

The following outlines the employer’s obligations once it has received notice of an application for certification:

  1. The employer must immediately complete and post the Notice to Employees included in the certification package, together with a copy of the application. This notice will remain posted until a representation vote is ordered and the Notice of Vote is posted, or until directed otherwise by the Board.
  2. The employer has 5 calendar days following the date of receipt of the application to file a response. Upon receipt of the response, the applicant will have 2 calendar days to file a reply.
  3. The employer must also complete the Certificate of Posting as well as the Vote Arrangements form included in the certification package as per the instructions contained in the documents and return them to the Board with its response to the application.
  4. Along with its response, the employer is also required to submit the following material within 5 calendar days of receipt of the application:
    1. an alphabetical list showing the full name, job classification or position title, home address and telephone number of all persons concerned by this application and employed by the employer, identifying managerial and supervisory personnel, as of the date the application was filed with the Board (for the Board only);
    2. a second alphabetical list showing the same information as that requested in (a) above, without addresses and telephone numbers;
    3. if the application concerns casual or part-time employees, they should be included and clearly identified on each list and if applicable, a record of the weekly hours worked by any casual or part-time employee for the three-month period preceding the date on which the application was filed;
    4. an organizational chart showing, as of the date of filing, the relationship of the employees in the proposed bargaining unit to the other employees, and also showing the lines of authority between management, supervisors, and subordinate employees;
    5. a detailed description of the nature of the employer’s business and operations; and
    6. a confirmation of the employer’s legal name in both official languages.

Inclusion/Exclusion of Job Classification or Positions

If a party wishes to contest the inclusion or exclusion of any job classification or position, it must give the following information in its submissions for each disputed job classification or position:

  1. job classification or position title;
  2. reason(s) why the job classification or position is, in its opinion, inappropriate for either inclusion or exclusion; and
  3. job description that includes the details of the duties and responsibilities of the incumbent.

Incumbent Bargaining Agent

Where an application for certification seeks to displace an incumbent bargaining agent, the latter will be served with a copy of the application for certification and a certification package as described above.

The incumbent bargaining agent will have 5 calendar days following the date of receipt of the application to file a response. The applicant will have 2 calendar days to file a reply. The incumbent bargaining agent must also complete the Vote Arrangements form included in the certification package and submit it to the Board with its response.

Affected Trade Union

If a trade union who claims to hold bargaining rights for any of the employees affected by the application is notified of the application and wishes to participate in the proceedings, it must file a request to intervene with the Board and serve a copy of its request to both the applicant and the employer. The request to intervene as well as the affected trade union’s submissions on the merits of the application must be filed with the Board no later than 5 calendar days after the affected trade union is notified of the application. The parties will have 2 calendar days from receipt of the request to intervene to file a response.

Where an affected trade union makes a request to intervene, it may result in the representation vote being delayed.

The Board’s Investigation

Once an application for certification is filed, the Board will acknowledge receipt of the application and will appoint one of its industrial relations officers (IRO), to complete an investigation and oversee the conduct of the file.

Within the first day of the application being filed with the Board, the IRO will contact the parties to review the following issues:

  • the information required at various stages of the process;
  • the dates for filing;
  • the voting arrangements;
  • any potential intervenors that should be provided with a copy of the application;
  • the Board’s practice to commence a representation vote 12 days after the application was filed with the Board; and
  • any matter arising during the conduct of the matter.

After receiving the materials and submissions, the IRO will convene the parties to a meeting (in-person or by conference call) to attempt to resolve any disagreements between the parties regarding the employee list(s), inclusions/exclusions, the scope of the bargaining unit and the voting arrangements.

Following this meeting with the parties, the IRO will provide the parties with a letter of understanding (LOU) setting out his/her understanding of the proposed bargaining unit and any disputed positions and the voting arrangements agreed to by the parties during the meeting. Although the Board will give serious consideration to an agreement reached between the parties, such an agreement is not binding on the Board.

The parties must provide their comments to the IRO’s LOU in writing within 24 hours of receipt of a copy of the LOU.

Determination by the Board

A panel of the Board will review the matter. The Board may:

  • make any order necessary for the conduct of a representation vote;
  • request additional information or submissions from parties;
  • schedule a hearing; or
  • dismiss the application.

If the Board is satisfied that the union has at least 40% membership support amongst the employees in the bargaining unit at the date of the filing of the application, it will order a representation vote. Where the Board is not able to determine the appropriate unit on the basis of the parties’ submissions, the panel may order that a representation vote be conducted pursuant to section 16(i) of the Code and direct that the ballot box be sealed following the vote and certain ballots segregated if necessary. The Board will also designate a Returning Officer who will be responsible for conducting the representation vote.

If a representation vote is ordered, a letter is issued by the Returning Officer confirming the voting arrangements and enclosing the Board’s order, the Notice of Vote and list of eligible voters. The employer will be directed to post the Notice of Vote and list of voters based on the instructions of the Returning Officer.

If the representation vote is a ballot box vote involving a single or few easily-accessible locations, it will normally be completed within 1 day. If the representation vote is conducted electronically, by mail-in ballot, or if it involves multiple or remote locations, it may take longer to complete.

The Returning Officer will normally count the ballots immediately following the representation vote if the ballot box has not been ordered sealed. Normally, this will be done at the vote site if the representation vote is a ballot box vote.

After the conduct of the representation vote, the Returning Officer will communicate the results to the Board. The Board will then proceed to make a determination on the application and may:

  • grant the application and issue an order; or
  • dismiss the application for lack of majority support.

If the ballot box was ordered sealed by the Board, the Returning Officer will advise the Board that the representation vote has been completed and the Board will proceed to make a determination on the issues that remain in dispute. The Board may:

  • request additional information or submissions from parties; or
  • schedule a hearing.

IMPORTANT NOTE: More information on applications for certification and the conduct of votes is available in the Board’s Information Circular No. 07–Applications for Certification. The timelines contained in this document are targets set for the Board’s processing of certification applications. There may be circumstances and issues in certain applications that will prevent these timelines from being met.

1NOTE: As per section 1 of the Regulations, “day” means a calendar day.

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