Ontario Construction Report staff writer
In the Ontario construction labour relations calendar, it is a time where special rules apply and sometimes surprises occur – the triennial Open Period between March 1 and April 30, just before collective bargaining agreements end for most trades.
What should employers and workers expect during this soon-to-arrive two months, when union members can decide to decertify or change their union affiliations?
Patrick Groom and Victor Kim, construction lawyers with McMillan LLP, outlined some of the special circumstances during the Open Period in an online discussion last Wednesday. They were speaking with advice from the employers’ perspective, but the facts and rules for this special period are relevant to unions and workers as well.
Groom said workers within a bargaining area can set the stage for a vote to either decertify or change their union if more than 40 per cent on-site sign off for the requested change. If this happens, there will be a quick vote – five days “after the application is given to the employer.”
Employers need to be careful about how they handle what can be a volatile environment, especially if two unions decide to fight it out, perhaps in areas of overlapping or conflicting jurisdiction. “Raids” involving the Carpenters’ Union and the Labourers International Union of North America have happened in previous open periods.
They don’t need to be silent, however, as long as they stick to facts and informed opinions, and avoid any actions that could be interpreted as threats, intimidation, promises or surveillance.
This means, says Kim, that employers can truthfully express their opinions about decertification.
“But can you threaten your employees that they will lose their jobs or lose their overtime hours, because you will lose business and clients if the raiding union decertifies the existing union.” This would be seen as a threat and would not be allowed. Nor could you indicate you expect business to increase – with more working hours and overtime – as this would be seen as a promise.
An especially serious “no” is providing access to office computers or equipment for workers who seeking to decertify. The access “constitutes employer support” and would result in unfair labour practices claims.
In practice, employers can still exert some control, as long as they are fair in their approaches.
For example, they have the right to restrict access to their jobsites from outsiders, such as raiding union representatives, and they can insist that any union discussions be held only during break-times so their is no disruption to work. As well, employers in controlling site access can require that all employees comply with personal protective equipment and other requirements.
The exception to this access rule would occur for representatives of the incumbent union, which could have jobsite access under the collective bargaining agreement, Groom said.
During the open period, he said union reps are likely to be more active and involved, sometimes with reps offering swag and other goodies to build good-will and induce workers to stay with their current union (or if the raiding union can gain access, to switch).
A key challenge for employers is to be prepared for surprises. They will have a very short time to respond to any Labour Board filings. Unions will often file on Monday, Tuesday or Wednesday, since the employer has just two days to respond, and by filing early in the week, they cut out the opportunity for any weekend preparation.
In preparation, Groom said employers should be sure they have at their hands:
- A list of all active jobs in Ontario (including precise location) and the employees who work at each site;
- Employee hire dates, job classification, whether hired directly or referred by a union, pay structure;
- Payroll records and/or time sheets for at least one month (i.e. from Feb. 1, 2022) prior to application filing date and the weeks thereafter;
- Details of the work each employee was performing each day between March 1 and April 30, 2022;
- Detailed daily site reports with photos and supporting documents; and
- Names and numbers of site supers and other managers who have knowledge.