CERTIFICATION / REVOCATION VOTES UNDER THE CANADA LABOUR CODE

Transcription

1 CERTIFICATION / REVOCATION VOTES UNDER THE CANADA LABOUR CODE The Canada Labour Code (Part I Industrial Relations) (the Code) requires that, when the Canada Industrial Relations Board (the Board) is seized with an application relating to bargaining rights, the Board must satisfy itself as to the wishes of the employees in the bargaining unit (see section 28(c) of the Code with respect to certification and section 39(1) of the Code with respect to revocation). There are a number of mechanisms available to the Board for this purpose. Section 16 of the Code gives the Board broad powers to examine records and evidence regarding a union s membership. The Board uses these powers to conduct extensive investigations of a union s membership evidence, including personal contact with individuals who have signed membership cards. The Board may grant or deny the application on the basis of the results of this investigation, or it may conduct a representation vote. Section 29 of the Code authorizes the Board to conduct representation votes at any time for the purpose of satisfying itself as to the representational character of a bargaining agent: 29. (1) The Board may, in any case, for the purpose of satisfying itself as to whether employees in a unit wish to have a particular trade union represent them as their bargaining agent, order that a representation vote be taken among the employees in the unit. In addition, section 16(i) gives the Board considerable discretion to order a representation vote in any case where the Board considers that it is necessary to dispose of a question in a proceeding: 16. The Board has, in relation to any proceeding before it, power... (i) to order, at any time before the proceeding has been finally disposed of by the Board, that (i) a representation vote or an additional representation vote be taken among employees affected by the proceeding in any case where the Board considers that the taking of such a vote would assist the Board to decide any question that has arisen or is likely to arise in the proceeding, whether or not such a representation vote is provided for elsewhere in this Part, (...) A. Circumstances In Which Representation Votes Are There are five circumstances in which the Board may conduct a representation vote: 1

2 (1) Where the bargaining agent has been voluntarily recognized by the employer, but wishes to obtain formal confirmation from the Board as to its status; (2) Certification of newly organized bargaining units that have no previous history of collective representation or collective bargaining; (3) Displacement of incumbent bargaining agents; this occurs when members of an organized bargaining unit wish to replace their bargaining agent with a different bargaining agent; (4) Revocation ( decertification ); this occurs when members of an organized bargaining unit wish to decertify their bargaining agent (become non-union); and (5) Where the Board reviews a bargaining unit structure as a result of an application under section 18 or 18.1 of the Code (for example, subsequent to a sale of business) and finds it necessary to conduct a vote to determine which of two or more bargaining agents will represent employees in a merged bargaining unit. (Note: Except when otherwise noted, data related to votes ordered as a result of a bargaining unit review have been excluded from the analysis contained in this paper). Figure 1 summarizes the number of each type of application disposed of by the Board in the past 5 years: Figure 1- Number of regarding bargaining rights disposed of by the Board, by fiscal year Type of application/fiscal Year Voluntary recognition Certification Displacement Revocation Total

3 B Size of Bargaining Units The average size of the bargaining units involved in applications before the Board is relatively small (see Figure 2). For example, the largest bargaining unit involved in an application regarding bargaining rights in was a certification application for a unit of 231 employees. Only four (4) applications involved bargaining units with more than 100 members; the average bargaining unit size in was 37 employees. Figure 2 Average size of bargaining units involved in bargaining right applications (number of employees affected) Average size of bargaining unit/fiscal year Voluntary Recognition Certification Displacement Revocation Average bargaining unit size C Use of Representation Votes by the Board In a majority of cases, the Board decides certification applications based on the results of a thorough investigation of the applicant s membership evidence. For each of the years under review, Figure 3 indicates the number of applications decided on the basis of membership evidence as compared to those involving representation votes. 3

4 Figure 3 Number of representation votes conducted Basis for decision/fiscal year Total no. of applications Withdrawn by applicant Granted on the basis of membership evidence Denied on the basis of insufficient membership evidence or for other reason (e.g. untimeliness) Representation votes held No. of votes held as a percentage of all applications granted after vote denied after vote *In one case, the application was withdrawn after the vote was conducted) * % 24% 14% 8% 18% Further detailed information related to the conduct of representation votes is included in Annex A. D Types of Representation Votes The Board conducts representation votes in one of three ways: (1) In-person votes, normally held in the work-place or a nearby location; (2) Mail-in ballots; (3) Electronic voting. The decision as to the manner in which the vote will be taken is taken based on the size and geographic location of the employees in the bargaining unit. Normally, in-person votes will be held in the case of applications involving a small bargaining unit in which 4

5 the employees work at a single location. Prior to the advent of electronic voting, the Board used mail ballots to conduct votes in cases where the employees are widely dispersed or do not work at a common location (e.g., truck drivers). In recent years, the Board has implemented the use of electronic voting for large and/or widely dispersed bargaining units. Electronic voting permits employees to vote by telephone or over the internet. The Board s experience to date has demonstrated that there are fewer issues with electronic voting (for example, no spoiled ballots) and that participation rates tend to be equal to or greater than mail ballots. Figure 4 illustrates the Board s use of the various types of voting mechanisms over the past 5 years: Figure 4 - Type of Representation Vote Type of vote/fiscal Year In-person Mail ballot * 2 2 Electronic 2 * vote Total * In two cases, a single vote disposed of two applications. E Performance Targets In addition to considerations related to the nature of the bargaining unit, cost and timeliness are also matters of concern to the Board. In order to avoid disputes during the certification/decertification processes that lead to unfair labour practice complaints, it is important that representation votes be conducted without delay and as soon as possible after the Board determines that a vote is necessary. Figure 5 illustrates the average processing time required from the date an application is filed to the date on which the Board orders a representation vote. 5

6 Figure 5 Average processing times where vote ordered (number of days from date file opened to date vote ordered) * 53 * 71 * 49 64* Average processing time (in days) *Calculations do not include one file that raised complex preliminary issues (e.g. jurisdictional disputes) that created an unusually long delay. The Board has established a target of 50 days for the handling of certification applications. However, in cases where a vote is ordered, this target is very difficult to meet. Figure 6 compares the percentage of times that this performance target is met in certification applications involving a representation vote and those that do not involve a vote. Figure 6 - Processing Time for Certification as compared with performance target Percentage of certification applications where performance target is met when a vote is held Percentage of certification applications where performance target is met when no vote is held 4.5% 4% 0% 14.3% 0% 60.5% 60.2% 44.3% 53.4% 56% F Cost of Representation Votes For the purpose of calculating the cost of representation votes, the data includes votes held as a result of bargaining unit structure reviews (sections 18 and 18.1 of the Code) On average, an in-person vote costs approximately $344, not including staff salary costs. The cost of in-person votes consists primarily of expenses for Board staff to travel 6

7 to the location where the vote is conducted. As noted above, in-person votes are more commonly used when a bargaining unit is small and is in proximity to one of the Board s offices. The Board currently has staff located in six regional offices (Vancouver, Winnipeg, Toronto, Ottawa, Montreal and Dartmouth). The cost of such votes is currently relatively modest since minimal travel is involved. The average cost of the mail ballot votes conducted during the period under review was $173 per vote or approximately $ 3.00 per voter, not including salary costs for staff time. In recent years, electronic votes have replaced mail-in ballots in cases where the bargaining unit involves employees who are geographically dispersed or located in remote areas of the country. In such cases, electronic voting has a number of advantages over mail ballots, including timeliness, less opportunity for lost ballots, fewer spoiled ballots, and therefore more credible and reliable results. With respect to the cost of electronic votes, it should be noted that the Board does not currently have the capacity to conduct electronic votes itself, and therefore engages the services of a third-party service provider when such votes are required. The average cost of the electronic votes conducted during the period under review was $2,707, not including salary costs for staff time. Should the number of representation votes that the Board is obliged to conduct be increased, a cost/benefit analysis will be required to determine whether it would be more cost effective to purchase or develop software that would permit the Board to conduct electronic votes in-house. At the present time, the Board has no basis on which to estimate the cost of purchasing or developing such a system. Canada Industrial Relations Board Updated: December

8 ANNEX A REPRESENTATION VOTES UNDER THE CANADA LABOUR CODE Representation Votes by Type of Application Under the current regime, the Canada Industrial Relations Board conducts representation votes in approximately 17% of all applications for certification, revocation or displacement. The majority of the votes are conducted in displacement and revocation applications. The Board rarely holds votes in new certification applications, as it ascertains employee wishes through its thorough investigation of membership evidence. Table 1 provides a breakdown of the number of votes conducted by type of application. TABLE 1 Representation Votes by Application Type FY to FY # of Granted Rejected Withdrawal # Votes % of apps involving a vote % New Certification % Voluntary recognition % Displacement % Revocation % 8

9 # of Granted Rejected Withdrawal # Votes % of apps involving a vote % New Certification % Voluntary recognition % Displacement % Revocation % # of Granted Rejected Withdrawal # Votes % of apps involving a vote % New Certification % Voluntary recognition % Displacement % Revocation % 9

10 # of Granted Rejected Withdrawal # Votes % of apps involving a vote % New Certification % Voluntary recognition % Displacement % Revocation % # of Granted Rejected Withdrawal # Votes % of apps involving a vote % New Certification % Voluntary recognition % Displacement % Revocation % 10

11 Time to Conduct Votes A vote can add anywhere between 18 and 84 days to the process. The average time it adds to the overall processing time is 36.5 days, which means that the Board is rarely able to meet its processing target of 50 days (please refer to Figure 6 of the paper). Table 2 provides a breakdown of the average time required to hold a vote, by type of vote. TABLE 2 Average time for Votes FY to FY Total Votes from File Open Date to Vote Ordered from Vote Ordered to Vote Results FY Overall Ballot Box Electronic Mail Total Votes from File Open Date to Vote Ordered from Vote Ordered to Vote Results FY Overall Ballot Box Electronic Mail

12 Total Votes from File Open Date to Vote Ordered from Vote Ordered to Vote Results FY Overall Ballot Box Electronic Mail Total Votes from File Open Date to Vote Ordered from Vote Ordered to Vote Results FY Overall Ballot Box Electronic Mail Total Votes from File Open Date to Vote Ordered from Vote Ordered to Vote Results FY Overall Ballot Box Electronic Mail

13 Additional Resources Currently, it is estimated that, on average, each vote requires 6 full days of dedicated officer time to prepare and conduct. This estimate takes into consideration that some votes may require less time while other more complex files may require up to 10 days of dedicated work time to conduct the vote. There are, on average, 120 applications per year (average over 5 years) that could potentially require a vote. The Board currently conducts votes in an average of 20 cases per year (18%). Bill C-525 requires that votes be conducted in all cases. This would result in an increase in the number of votes of 500%, or 108 additional votes per year. This represents an additional 648 officer-days of work per year (108 additional files x 6 days per file) or 3 full-time officers (based on the normal 220 working days per year per officer). 13