Consider, if you will, a multi-tower, multi-storie condominium complex under construction in downtown Toronto (a stretch to be sure). An employer has 50 employees working there, with each employee working in multiple units, floors and towers each day. Records are kept for most work that was planned, but not always specifically identifying which workers did the work in each individual unit or on each floor.
The employer receives an application for certification on Wednesday at 4:55 pm through the mail slot at its corporate offices in Markham, by which a construction industry trade union has applied to represent a unit of its employees. The office receptionist opens the package at 10 a.m. on Thursday, realizes it seems important and runs it up the flag pole. Just after noon the president and general counsel have seen it and called the company’s construction lawyers, who in turn recommend labour counsel to assist. Now it’s 12:30 p.m., the president is on the phone with labour counsel who explains the process, and the team gathers enough information to consider key legal issues, determine the best likely strategic approach and formulate a plan for the response.
It’s now 2 p.m. on Thursday and the employer has only until 5 p.m., Friday afternoon to gather information on the comings and goings of all 50 workers, every minute of the application date, consider the impact of that data in context with potentially complex legal issues, and to use that all to organize, complete, deliver and file the response with all schedules. Miss the deadline and the employer will likely be deemed to have admitted the union’s pleadings and certification is all but a foregone conclusion.
It is in this context that we must consider the otherwise objectively neutral change which the Ontario Labour Relations Board has made to the response form in construction industry applications for certification. Effective August 31, employers must provide more than a general name or address for job sites and a separate schedule listing employees when filing a response, which was the case in the past. Instead, they must identify job sites more specifically “by location”, including floors etc. for multi-unit structures. Moreover, in the schedules attached to the response form where previously the employer only had to list the employees at work on the application date, employers must now identify on which specific sites and locations those employees worked on the application filing date. This sounds simple enough, and certainly unions will be grateful to have more accurate work locations quickly so they can focus their investigations in preparation for litigation that may ensue.
Practically, however, this potentially very cumbersome, additional requirement has been thrust upon employers who already have very little time – only two business days at most – to gather accurate information, retain counsel, consider legal implications and strategy, and file a complete response. Imagine in this context that most employers have more than one site active on any given day, records of activities on sites are not always complete, accurate, or specific (if they exist), and must trace the activities and whereabouts of a large workforce on such short notice, accurately, and you may begin to put yourself in the shoes of an employer facing this new requirement head on.
As the law stands today, employers face an uphill battle if they miss a jobsite on their response form and try to add it later. If the applying union successfully prevents the employer’s attempt to add a jobsite later, the result is that an already gerrymandered constituency of employees (made up of only those employees who were at work in the proposed bargaining unit on the day the union chose to file its application – which may be a Saturday or Sunday), will potentially suffer the loss of additional employees who were at work that day but unfortunately situated on sites or locations on sites missed by the employer and so rejected as irrelevant for purposes of the application. The Board has also ruled previously that employees who don’t learn of an application because the employer failed to post the application where they were working is not grounds for unwinding a certification. In other words, as a result of innocent errors made in a severely truncated timeframe (and/or in light of insufficient availability of information or time to get it), employees may be disenfranchised and a union certified that did not represent an accurate sample of the workforce.
The Labour Relations Act, which governs applications for certification, provides that certain information MUST be delivered to a union and filed with the Board within two days. This new requirement relates to details not expressly required by the Act to be filed in that time. Instead, the obligation to provide these details flows from the Board’s power to make its Rules of Procedure and forms arising therefrom.
There are particularized status submissions due typically within about two weeks of the response. Query then whether it would not be more procedurally fair, or practically viable, to require employers to provide in those status submissions (or at some point in-between) but not in the response and schedules, particulars of specific locations on named jobsites, and particulars connecting individual workers up with those more narrowly defined work locations. Or, perhaps, the Act itself would benefit from a small amendment – providing an arguably more reasonable business week for employers to prepare and file their response.
Non-union employers, especially in the construction industry, would be well advised to have application response plans in place before an application lands on their doorstep. Often a lot of the heavy lifting and issue analysis is predictable and can either be ready in advance or at least identified for consideration.
