Not all Unions are created equal and not all Unions treat their members equitably. As labour lawyers, we often receive calls from employees who are curious about how to “get rid of the Union”. This is possible, but only in narrow circumstances in a process called “decertification”.
“Decertification” is the mirror image of “certification”. In order to decertify the Union, the members must wait until the “open period”. In Ontario, s. 63 of the Labour Relations Act sets out when that open period occurs:
| Collective agreement term is less than 3 years | Within the last three months of its operation
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| Collective agreement term is more than 3 years | Between the 34th and 37th month of its operation; and during the 3 month period at the end of each year the collective agreement continues to operate; or after the commencement of the last three months of its operation
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| Collective agreement is indefinite | The last three months of each year that the collective agreement continues to operate or after the commencement of the last three months of its operation
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During the open period, the members must show that at least 40% of the workers in the bargaining of employees want to decertify from the incumbent Union. This is done by collecting signatures or signing card. The worker(s) then send this information to the Ontario Labour Relations Board which will hold a vote. While Unions are entitled to express themselves with respect to decertification, this expression cannot cross the line into threats or coercion. Similarly, employers are prohibited from interfering or assisting employees in decertification. If the decertifying workers get 50+1% of the vote, the Union is deemed “decertified”. The workers and the Employer are then at liberty to deal directly regarding the terms and conditions of employment in the workplace. Workers will no longer be required to contribute union dues.
The process is similar for workers wishing to decertify from their incumbent union to join a new union.
Workers wishing to decertify should anticipate that their unions will fight vigorously to defend their role as the exclusive bargaining agent (and union dues flowing therefrom). Oftentimes, objections and allegations of impropriety on the part of the Employer or the decertifying workers are raised with a view to defeating applications for decertification. If resolution cannot be found, the Ontario Labour Relations Board will schedule a hearing with respect to objections or other unfair labour practice complaints. The application for decertification will either be confirmed or dismissed.
The lawyers at Mann Lawyers LLP are well placed to assist groups of workers wishing to decertify from their unions during the open period or at hearings before the Ontario Labour Relations Board.
This blog post was written by Nigel McKechnie, a member of our Employment Law team. Nigel can be reached at 613-369-0382 or at [email protected].
