Organizing Manual

The full CUPE organizing manual.

Organizing Manual

Why Organize?

Workers organize so they can:

Improve working conditions (wages, benefits, fairness of job selection, health and safety, dispute resolution process, etc.).
Have a voice – to be heard and speak out without risking their job (i.e. to talk about changes in the workplace, protecting their jobs or fighting for better supports to deliver quality services etc.).
Have the power of a collective to make change.

We want our members to know:

Collective bargaining works – unions get results for workers.
Our gains benefit all workers – unions raise the standard for all workers every day.
Unions help people everywhere – unions advocate for social justice for all.

Organzing workers is about building a connection between their issues and concerns and CUPE.

To do this we must;

GO to where the workers are
LISTEN to what the workers have to say
BUILD on points raised and link to the work of the Union

Go Listen Build

Remember: Organizing is an essential part of what CUPE does.

We organize because what we want for ourselves, we want for all.
We organize to strengthen the power of the union
We organize because we care about the services we provide to the public.
We organize to make positive change in our communities.
We organize because workers are better off organized than unorganized, and when they are organized, they are better off with CUPE.

Who Organizes?

Many different CUPE people organize

All CUPE elected leadership and staff are involved in organizing drives in different ways.
There are staff assigned specifically to organizing in each regions. In some provinces there are organizers assigned on a full-time basis in others it is one part of their assignment or the organizer is assigned by campaign.
Our activists and members also organize, often on a voluntary basis. Sometimes they are booked off to help on the drive.
The inside committee, a group of pro-union workers from the workplace being organized, is essential to any organizing drive.

CUPE Organizers and Staff

Understand the relevant legislation relating to organizing.
Give clear direction, guidance and support to the inside committee and member organizers.
Assist in structuring the campaign.
Educate the inside committee about CUPE and the certification process.
Produce or approve the materials used in the campaign.
Maintain regular contact with the inside committee.
Assure confidentiality.
Prepare the application for certification and labour board forms.

Inside Committee

Leads the drive at the workplace by talking to co-workers to gain their support for the union.
Collects information, such as employee lists, work schedules, addresses and home phone numbers.
Helps to identify issues at the workplace.
Identifies and recruits potential members for the inside committee.
Encourages co-workers to sign membership cards.
Reports any problems immediately to the CUPE organizer.
Are ultimately responsible for deciding to end or extend the campaign.

An ideal Organizer

Is someone people like and trust
Enjoys being with many different people
Is a friendly, thoughtful listener, with lots of patience
Has good communication skills
Is someone who doesn’t take differences of opinion personally
Is someone who knows CUPE and is eager to help other unionize
Wants to learn more about planning strategically
Has experience and enjoys working as part of a group
Is a well-organized person
Is willing and able to work unusual hours
Is optimistic about life in general and unions in particular

CUPE Knowledge

A CUPE organizer must have a strong knowledge of CUPE in order to be a successful organizer. When meeting with unorganized workers, an organizer needs to accomplish two goals. The first is to persuade these workers as to the merits of organizing their workplace. The second is once you have accomplished the first goal, is to convince them the CUPE is their best choice when choosing a union.

Organizing is a competitive process, as there will be other unions vying with CUPE in trying to convince the unorganized workers to unionize through them. Therefore, a strong knowledge of CUPE will assist you in the task of influencing workers as to the merits of CUPE as the union of choice.

With CUPE, there is definitely strength in numbers. CUPE represents 635,000 members throughout Canada, making it the largest union in the nation. CUPE is comprised of 2382 local unions with 3946 collective agreements. Locals are chartered under the CUPE National Constitution. Each local may also develop its own bylaws which sets out how the local operates. As long as the actions of a local fall within the parameters of the CUPE Constitution and local bylaws they have local autonomy on how they run. Local autonomy is something that is very appealing to workers entertaining thoughts of organizing..

More than 60 per cent of our members are women
More than 70 per cent of CUPE's 3,946 collective agreements are with locals of 100 members or fewer.
CUPE has more than 2,363 locals and chartered organizations across the country, ranging in size from 20 to 20,000 members.
CUPE membership’s collective payroll is over $21.8 billion.

CUPE is a founding union of the Canadian Labour Congress, the umbrella organization for the Canadian labour movement. Globally, CUPE is an affiliate of Public Service International, a global federation of public sector unions. PSI represents 650 affiliated trade unions in 148 countries and territories worldwide, uniting more than 20 million public sector workers.

CUPE's Structure

At a glance, the CUPE National local’s breakdown looks like this:

INSERT

The local unions are the backbone of CUPE. The locals will vary in size and demographics. Some locals will be as large as 20,000 members and yet locals may only have as little as three members. Some locals have all their members located in one workplace while others span a region or province.

As discussed previously, the local members have a strong say in the direction of their local. Working with their assigned CUPE staff rep, members determine their bargaining and workplace priorities. They elect an executive to lead their local union. They set the dues and decide how money is spent. If the local is very active and feels the need to spend more money, then it is the local that will decide if they should raise their dues or not. It should be noted that CUPE National sets out the amount of dues to be paid by each member to the National union as 0.85 percent of average monthly wages. (Per Capita Tax – Article 14 of the CUPE Constitution) This revenue will go into resources that are set out later in the manual. It is recommended that a local sets it dues at a minimum of 1.5% so the locals has the monies in their local account conduct the day to day business of the local.

During bargaining, it is the members who decide whether to accept the employer’s offer, or reject it and vote to strike. The members are in control of these decisions. CUPE’s clout, experience and expertise supports members in getting the best contracts possible.

In addition each province has an entity known as the Division which is the political arm of CUPE within that geographic region. While affiliation to this body is voluntary it is strongly recommended that each local joins and actively participate in the work of their respective division.

CUPE as a functioning operation is something that even many seasoned activists are not overly familiar with. But an understanding of CUPE’s functionality will enhance your ability to explain the variety of services that CUPE as a National union can provide for all members. This is particularly helpful when explaining why 0.85 percent of the union dues go to the National Office instead of staying with the local.

How CUPE’s structure is set up to provide services is shown below:

Structure of CUPE National

(all staff in the regions including servicing representatives, organizers, specialist and administrative supports in xx offices across the country

Therefore, when a worker asks what they get from the money sent to Ottawa, the answer is a National Representative(s), as well as Legal, Health and Safety, Equality, Communications, Research and Job Evaluation Representatives. There are also courses and education offered through Union Development that are available to CUPE members.

Another benefit to the per capita fee is the National Strike and Defence Funds, which are an invaluable support to locals when they are under attack by the employer. Whether it is the threat of mass contracting out or a strike, CUPE has substantial resources and a multi-million dollar strike and defence funds to help members fight and win.

A further advantage with CUPE during difficult periods of time, such as a strike, is the solidarity that CUPE has within the trade union movement. As a well-respected member of the Canadian Labour Congress (CLC), as well as the applicable Provincial Federations of Labour, CUPE can always count on the sisters and brothers from other unions to walk the line with our members whenever we are facing job action. In return, CUPE is there for the other unions whenever they are facing similar dilemmas. It is this solidarity that provides reassurances for workers that are pondering whether to organize or not.

It has been stated that the locals are free to chart their course, as long as they remain within the boundaries of the CUPE Constitution. The Constitution is not a document autocratically created by the National Office. The Constitution and policies of CUPE are results of the members. The direction that CUPE heads in is determined at the Biennial Convention. Every two years, CUPE local unions elect delegates to attend the CUPE National Convention. At this weeklong event, CUPE members from across the country determine priorities, set policy for the union and elect leaders.

In order to ensure that there is follow through with the recommendations from the floor of Convention, CUPE has two full-time elected officers – a National President and a National Secretary-Treasurer. They direct the union’s staff and resources to meet the members’ needs.

Along with the top officers, there are five general vice-presidents, 14 regional vice-presidents and two diversity vice-presidents who form the National Executive Board. It is the Board that ultimately ensures that members’ decisions at National Convention are put into practice.

While the Local is bound by the Constitution in its relationship with CUPE, it is bound by the Collective Agreement in its relationship with the employer.

There is a distinction between the two. It is not uncommon for the members to have a stronger working knowledge of their collective agreement as opposed to the Constitution. The collective agreement defines the rules that govern the working conditions in the workplace. The Constitution, along with the local by-laws are the rules that govern the local union. Not all members are active in the union, but all members are active in their workplace. Therefore, it is not unusual that the collective agreement is more likely to be read than the Constitution. Therefore, an organizer is encouraged to issue copies of the Constitution to workers who are organizing.

Another feature of CUPE that an organizer should be well versed in are the national and provincial committees and working groups that exist within CUPE. The committees are member-based groups that deal with a wide variety of both workplace and social issues that affect our members.

CUPE Committees

Some of these committees are:

Sector committees
Contracting Out and Privatization;
Women’s Equality;
Health and Safety;
Anti-Racism;
The Environment;
Rights for Gay, Bisexual and Transgender Workers;
Aboriginal Councils;
Workers with Disabilities;
Global Justice;
Child Care;
Health Care; and
Young Workers.

These working committees can be very attractive to workers wishing to start a union and want to make a difference – in the workplace and in their community. These committees also help CUPE build coalitions with other like-minded groups.

It is also important to be able to reassure potential new members that CUPE has a solid reputation as being the leader in servicing public sector workers and public sector jobs. In fact, it can be argued that CUPE is Canada’s most powerful defender of our vital public services.

It does not matter whether a member is a full-time, part-time, seasonal or casual worker. CUPE provides representation to all. This can be demonstrated by the membership breakdown throughout Canada. In facCUPE represents more part-time workers than most unions in Canada have for a total membership base.

Many organizing campaigns will have part-timers as part of the bargaining unit. It is essential to be able to demonstrate that these workers will be well represented by CUPE.

As an organizer, you are the face of CUPE. A thorough knowledge will only bring forth a positive reinforcement of the image of CUPE. It is our belief that if all the facts are before those workers that we are trying to organize, they will choose CUPE. CUPE has been a National Union since 1963 and is a leader in defending public services and those who provide those services. Touting our proud history and current excellence can only help CUPE grow even further and remain the union of choice for all workers.

Mapping the Workplace

A critical component to any organizing drive is for the CUPE organizers to work with the inside organizing committee. The potential new members will look to the organizer to answer the flurry of questions that will arise. These potential new members will also look for guidance and leadership that will reassure those in the workplace that is to be organized.

In turn, the organizers will need a strong inside committee that will have credibility and respect from their colleagues. The role of the inside committee is crucial to any drive and therefore, it is imperative that those involved in the committee must meet a minimum criteria that will assist the organizing drive and not hinder it.

Role of the Inside Committee

The inside committee will have a number of roles and responsibilities before them. The first task will be to help the organizer formulate a list of those eligible to be part of the new bargaining unit. This list usually includes all full-time, part-time, casual, contract and probationary employees, excluding management.

It is important to note that the inside committee in terms of creating a list is a resource. They are not to be expected to understand whether an employee is within the “Community of Interest” or falls under the realm of management for example. As the organizer, you must determine who is working in the workplace, at what capacity, and whether they should be included on the list.

The Union needs a complete list to figure out what percentage of people have signed cards or support CUPE. An accurate mapping of the workplace will assist in determining the percentage of support. Mapping the space where people work is also one way of making sure that we have not overlooked anyone. Someone who is overlooked may feel excluded and will become non-supportive in reaction to a perceived intentional omission.

How to Fill Your Inside Committee

“Finding leaders and potential activists is one of the most difficult parts of any campaign. Take care and time to identify the key people.

Speak to your contacts in the workplace. Who is it that people listen to and respect? Who is it people go to for advice and help at work? Who takes a lead in organizing social or other informal activity in the workplace?”[^1]

Workers that have credibility amongst their peers should fill the inside committee. If the committee consists of workers that have the respect of their colleagues, the committee will attain respect as well. Many people will assert that they are the “voice” of the workers, but just being the most vocal or loudest does not indicate the most legitimate.

Others will come forward because they have a number of complaints or issues with the employer. Be extra cautious if these workers are anxious to organize because the employer is ready to terminate them due to work performance. This can be a leading reason why someone may approach CUPE to certify their workplace. Any campaign that is driven by the sole purpose of trying to save someone’s job is going to face credibility issues from the start.

“The best way of identifying potential workplace leaders and activists is to give them something to do. Give short-term, measurable tasks to potential leaders, activists and reps. Do they deliver? Are they the sort of person who will play a key role in the campaign? Processes should be put in place that allow organizers to evaluate all identified workplace leaders and identify their level of support for the union, their contribution to the campaign, and any training and development needs they may have.”[^2]

There can also be negative leadership in the workplace. Not all workplace leaders will be positive about the union.[^3] This is a major hurdle for an organizer to conquer, as such leaders will challenge your credibility repeatedly. Sometimes these workers can be converted to see things CUPE’s way – other times not. Do not lose sight of your goal in a campaign. It is to sign the number of cards that will achieve certification of the workplace. By focusing on those who oppose the union will divert you from signing the “undecided”.

Role of the Organizer

As mentioned above, it is the CUPE organizer who will decide who belongs in the proposed bargaining unit. In some campaigns you can do that on your own. In other situations, you may need an inside committee member or organizer to help with the research.

Part of the workplace mapping will be to decide on the description or “scope of a bargaining unit before the campaign begins. Check the list at least twice. Be sure to include everyone who belongs in the bargaining unit but also exclude those employees who do not belong in the union.

Once it is determined whether a job belongs in the bargaining unit, CUPE will count the number of people in the job as part of the total number of members for the prospective unit. This is how you decide how many employees you need to sign.

It is always safer to include an employee on the list when in doubt to avoid surprises later on. It is the surprises that could mislead an organizer that they have sufficient support.

Simply put, if you define the unit too narrowly and the labour board included jobs that you didn’t, you may find yourself without enough cards to get certified. We have to anticipate the board’s thinking.

How Does the Organizer Determine Who is Not in the Union?

People whose jobs include hiring, discipline and firing are clearly management and are not included within the union. Unfortunately, these determinations are not always so simple. Here are some criteria that you can use as a guideline to help you determine whether or not a person is part of management. Does the person:

Hire?
Fire?
Discharge?
Transfer?
Lay Off?
Write performance reviews?
Sign Evaluations?
Make “effective recommendations”?
Discipline?
Interview for Promotion?
Promote?
Reward (merit pay, perks)?
Give time off?
Recall?

Staff who make independent policy and budgetary decisions for the employer are excluded from the union, as are those who handle labour relations matters. If an employee has regular access to confidential labour relations, that job will also be excluded from the scope. An example of this job would be someone who types discipline letters or prepares bargaining proposals for management.

Also note that the law says management cannot help in an organizing campaign. So beware…if you accept help from a friendly person in a management job you could jeopardize the entire campaign.

Community of Interest

This is term that the labour board will use to decide who belongs in a new unit. If a group of employees have enough in common to bargain well together, without causing their employer serious problems, they will be within the Community of Interest. We should assume that means a bargaining unit that includes all employees and excludes management.

The complexity of the Community of Interest can vary based on workplace size, geography and diversity of workplace jobs. These are questions that should be addressed prior to initiating card signings.

The Labour Board normally names the municipality as the geographic area the bargaining unit covers, so if the employer has similar services or operations at other work sites in the same city or region, you may need to include those employees in the bargaining unit. Again, like the Community of Interest, determine the scope of your bargaining unit before anyone signs a card.

Part-Time and Casual Employees

It is a common error when mapping the workplace to overlook part-time and more particularly casual staff when establishing a list of employees. It is imperative that you turn your head to these employees as you can almost guarantee that the employer will erode your support for certification.

Therefore, it is in your best interests to be vigilant with your inside committee to identify part-time and casual staff so that your list can be as accurate as possible. What constitutes a part-time employee is if an employee works fewer than 24 hours a week. People that work full-time daily hours but for only part of the year (often called “temporaries” or “contract workers” or “seasonals”) are counted as full-time employees.

Decisions as to whether to aim for a single unit of both full-time and part-time employees or to try another route is a strategic, tactical and practical one. A CUPE organizer will make this decision in consultation with the inside committee.

The best advice for the CUPE organizer is to have as much information as possible so that you are making informative decisions that we will give you the most accurate read of the workplace. Otherwise, you are just “organizing in the dark”.

Planning a Campaign

Most organizers will tell you that there exists three types of employees in the workplace:

A group that are union supporters
A group that is anti-union
A group that is undecided

The first group does not require immense attention since they are already on board. Time spent on the second group can be wasted time as changing their minds will expend time and energy that can be used for the third group – the undecided.

Swaying the undecided group can mean the difference between a successful campaign and one that falls short of your goals. The organizer must focus their time on explaining the merits of CUPE and trade unionism and how it will improve their working life. If workers are leery of joining a union, it is important that you show them the benefits of unionizing first, then work on why CUPE is the best choice should they choose to unionize.

Each organizing drive needs:

A strategy – how and when to let others know about the union and get cards signed
A campaign team – the organizer and the inside committee
Issues – things that are important at the workplace
Record keeping – names, addresses, phone numbers, number of supporters, etc.
Vote day strategy – if a vote is needed how to make sure we win
Celebration and evaluation – talk to people after the campaign is over. What did we do well? What could have been done better?
Thank people for their hard work – win or lose.

The Campaign Team

The inside committee should meet regularly with the organizer.

These members will rely on the organizer for information on how the law works when organizing and about how unions work. The CUPE organizer should know both of these subjects.

Be prepared to give people a copy of CUPE’s constitution and materials about the CUPE structure. Advise them about average dues per month in comparable CUPE job classifications, and explain how collective agreements work. Many questions will result from the materials that these members are receiving. Be ready to provide answers to these questions. Showing patience is a definite asset in this matter as much of the information can be overwhelming when first read.

Hopefully the inside committee will want to expand as the campaign progresses. As the team grows, try to divide up the work so all those who want to participate can feel they are part of the team. This approach will encourage team building, which is the foundation of the new local should the campaign succeed.

Identifying Issues

All workplaces have issues that are important to workers. As the organizer, you will have to try to determine which issues should take priority. (Some issues – such as a supervisor’s rotten personality – may be important, but do not make good campaign issues.)

Keeping records, keeping count

Tracking is another important role for the organizer and the inside committee. But while performing this task is essential, so is the issue of confidentiality. An organizing campaign can be a frightening time for the workers involved. The fear of being “outed” is terrifying. Therefore, trust can only be established if the workers believe that confidentiality can and will be maintained.

When approaching potential signers, there is not a general template. It is better to use someone from the committee who has a rapport with the worker you are trying to sign. This will further assist in building trust and will most likely produce better results in card signings.

Keeping a record will also be a mechanism to track the progress of a campaign. As workers need to be approached, the committee can choose whom they would be most comfortable approaching. This again reinforces team building.

The common system that CUPE prefers to use when gauging support for the union is as follows: Strong yes, maybe yes, maybe no, strong no. This system is very similar to the system used in election campaigns.

In conclusion, try to keep your system compatible with the filing requirement of the particular labour relations board so as to avoid creating extra work, especially when submitting the list of card signers with the application for certification. Most importantly, keep the names of people who have signed cards confidential.

Vote Day Strategy

Some provincial labour board laws require a vote. In Ontario no matter what percentage of workers have signed cards a vote is required but in order to be able to file the application at least 40% is required. Make sure people know that the vote is completely confidential and the employer will never know how anyone voted.

One of the very few advantages the union has during an organizing drive is control over when we apply to the labour board for a vote. The vote, in most cases, has to happen five (5) business days from the date the application was filed. So in order to pick the best possible vote day, then count backwards and apply for certification on the day that puts the vote on your preferred day.

When we file the application the Union also gets to propose the times of the vote so the union needs to keep in mind:

Shift changes
Vacation periods during the year where employees may not be at work
Part time scheduling

However, the employer also gets to propose times it thinks is best for the workers and in the end the Labour Board makes the final decision and we don’t always get what we want. The OLRB estimates the amount of time needed for a vote as one minute per employee. However, they will take into consideration other factors such as shifts and other conditions that would impact a workers ability to attend the vote.

The organizer will choose a time that is best for our supporters. Try to avoid a vote after a statutory holiday. We are trying to win the vote. If we can create an advantage for our supporters, so be it. And one more thing, do not assume that our supporters will read any posted notices in the workplace. You should “pull the vote” through some things such as phone calls (union calling), emails and home mailings.

The committee and organizer may consider the following:

Which issues involve the most people?
Which issues does CUPE have a good track record?
Which are priorities for CUPE today?
Are there issues the union cannot do anything about?

Once two or more issues have been selected the organizer and the committee can determine how to respond to them. CUPE has a vast amount of materials at your disposal. These materials are a tremendous resource for the organizer and demonstrates to the inside committee that CUPE is a responsive union ready and prepared to meet the needs of its members. Further to this, CUPE educational sessions, workshops or general CUPE events may be of use for these purposes.

Campaign Preparation

Critical elements for a campaign are as follows:[^4]

1. Timeline

Establish a realistic campaign calendar.
Set the pace for the campaign.

Think about how you will build momentum during the campaign and escalate the pressure you can bring to bear over time.

2. Potential proactive and reactive strategies

Understand the employer’s strengths and weaknesses and its likely response to your campaign.

Anticipating the employer’s next move will assist you in preparing the workers and will build their confidence in you as the organizer.

Know the campaign’s strengths and weaknesses.

Be honest with yourself. It will help you avoid less than favourable results later in the campaign.

Consider whether you need to broaden the campaign beyond the workplace.

Since CUPE is a public sector union, this point is particularly important. Public support for public services can be the key to a successful drive. Try to work with respected community groups to broaden the campaign.

Ask whether you need a media strategy.

Work closely with your Communications Rep to create a media strategy.

Try to anticipate the unexpected and consider how that could impact upon the campaign.

Sometimes there will be matters that arise that one cannot reasonably anticipate. If you try to anticipate the worst-case scenario for matters related to the campaign, you will be better prepared for when trouble occurs.

3. Resources/budget

Create a leadership and team structure.

Establish clear lines of responsibility and management that everyone involved in the campaign understands.

Estimate the number of staff needed for each phase of the campaign.
Decide the number of volunteer organizers needed, when they will be needed, where they will come from, and how they will be trained.

The intensity of a campaign can be grueling and inadequate staffing will lead to burn out.

Set up campaign offices and meeting space if necessary.

4. Benchmarks

Establishing clear benchmarks at each stage of the campaign will allow you to assess the campaign’s progress and ultimately determine whether the campaign should continue.

One of the hardest things for a union to do is to make an

objective decision about when to end a campaign that is not working. Who will take this decision? What process will they undertake before this decision is made?

5. Scope of control

As we devise the campaign plan, keep in mind that we must account for both the factors we cannot control as well as those that we can.

Some factors that we cannot directly control include:

the competitive environment of the employer
the legal system and employment laws
the degree of initial worker interest and resistance
workforce demographics
employer opposition to the campaign
the resources of the employer
turnover of employees

Factors that we can and should control include:

resources allocated to the campaign
timing of the campaign – when we start
to some degree the pace of the campaign
our key campaign messages
public/private debates
scale of the campaign
campaign tactics
campaign discipline
our reactions to the management, the workforce

*and opportunities that are presented.

The Law

The following information will provide you with a general overview of labour law as it relates to organizing a union in the province of Ontario. This information is for guidance only, please consult with your CUPE National Representative when responding to legal questions.

The following topics will be covered:

Requirements of the Labour Relations Act
Protections of the Act
Determining the appropriate scope of the bargaining unit
Card signing and member organizer conduct during the drive
Employer interference and Unfair Labour Practices

Jurisdiction – Provincial or Federal

Depending on who they work for, your bargaining unit could be covered by either federal or provincial labour legislation. You must determine which applies, because rules governing collecting initiation fee and mandatory votes differ between federal (Canada Labour Code) and provincial codes (Labour Relations Act). The distinction is as result of sections 91 and 92 of the Constitution Act, 1867.

Be sure you know which labour relations regime covers your potential bargaining unit and the certification rules for that code before any meetings take place and before a single card is signed. Here we will focus on the Labour Relations Act that governs organizing provincially regulated workplaces.

Member organizers and inside committee members are not expected to be experts on labour laws. CUPE organizers and CUPE lawyers will do that.

Certification legislation

To successfully file an Application for Certification there are four main requirements:

We must be a trade union – we are!
The Application must be timely!
The bargaining unit that we apply to represent must be appropriate for collective bargaining!
We must have signed membership evidence from 40% of the proposed bargaining unit!

Voluntary Recognition Agreements (‘sweetheart deals’)

Generally speaking, CUPE does not use VRAs when organizing new units. We will occasionally enter into a VRA when one a building services contract flips from one service provider to another. In those situations, we make sure that we have all members sign CUPE cards again in case someone challenges the VRA within the first year under section 66 of the Act.

Appropriate bargaining unit Unit inclusions

The Ontario Labour Relations Board (the “Board”) decides who should be in or out of the bargaining unit - called the "appropriate bargaining unit".

We need to have a good idea of what the board is likely to deem an appropriate bargaining unit. This will tell us which and how many employees we need to organize and the number of cards we need to sign.

Management and confidential employee exclusions

All labour codes exclude from the bargaining unit those who perform managerial functions, or who have access to confidential labour relations information. This includes anyone who has the power to hire and fire or a secretary who works with confidential labour relations files.

These people are excluded as per section 1(3)(b) of the Act which states:

(1) In this Act, Same

(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,

(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations. 1995, c. 1, Sched. A, s. 1 (3).

The vote

In Ontario, a vote is required and the labour board supervises it. 50% plus 1 of those that actually vote must vote in favour of the union in order for the union to be certified. This means that in a workplace of 200 people, if 50 people vote and 26 vote in favour of CUPE, we win!

The labour board decides where the vote will be held (it could be in more than one location) and when workers will be able to vote. Sometimes the voting period lasts several days.

Once the App is filed, the union is provided with a list of all those eligible to vote. The union must review the list to ensure that it is complete and accurate.

The union will keep track of anyone whose inclusion in the bargaining unit is in dispute. Management may want some supervisors included for the vote, even though we feel they should be excluded. We may want to include certain workers who are considered independent contractors by the employer. The ballots of disputed workers will be separated from everyone else' ballots and only counted if they are determined by the Board to be members of the bargaining unit.

The union has the right to appoint scrutineers for the voting and to observe the count.

Once the ballots are counted, there is a waiting period for appeals. Then the board certifies the unit if we have a majority of votes cast, or decides not to certify, if we do not.

Protection under the law

The Act protects employee's rights, including:

The right to belong or to choose not to belong.

The right to have one's choice remain confidential.

The right to be protected from employer interference in belonging or choosing not to belong to a trade union.

Signing Membership Cards

The law requires us to provide proof of support for the union. We do this by collecting signatures on membership cards.

The inside committee will have already signed cards as they join the committee but at some time, you have to sign up as many of the other workers as possible.

Do no start the card signing campaign until you and the committee are ready.

You get people to sign cards by approaching them one on one, outside work hours - during lunch, breaks before or after work. You may invite workers to come to a meeting room at the union hall or at someone's home. You may visit people at their homes with another member organizer if the potential CUPE member has asked you to stop by, a local restaurant, or some other convenient place.

Once you have started signing cards, you need to act quickly. The more time the campaign takes; the more chance it gives the employer to interfere with the campaign. The shorter the sign-up campaign, the less chance potential members will be threatened or get worried or scared.

Signed cards are valid for one year. If campaigns take to long, the union may have to re-sign people who signed early in the campaign because their cards are stale-dated.

A union is a collective, but the decision to join that union is taken person by person.

That’s why systematic personal contact is so important in an organizing campaign. Face-to-face contact is the most effective approach.

When signing cards do…

Be careful

There are legal limits on what the union can do during working hours. You can sign people up before work, during official breaks, or after work. Don’t sign people up in their work areas. Keep to the cafeteria, the locker rooms, the washrooms, the parking lot or bus stop, or arrange to meet people at their homes.

Be discreet

There are people who will want to sign but won’t want their friends to know. Don’t assume anything but absolute secrecy. If people are afraid to be seen talking to you, ask for their home number and call them after work.

Use your judgment

If you have approached a person more than once and they still refuse to speak to you or cannot make up their minds, leave them alone. Organizers often use the “three times and out” rule. Give people three chances to ask questions and make up their minds, but if they are still undecided or anti-union, leave them and concentrate on other workers.

Remember that management has rights

The employer has the legal right to express opposition to the Union. BUT they cannot coerce, intimidate, make promises, use undue influence, or threaten.

Employers, etc., not to interfere with unions

70. No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence. 1995, c. 1, Sched. A, s. 70.

Put it in writing

Keep written notes of any instances of management interference and report them to the organizer immediately. There may be grounds for filing an Application under Section 96 of the Act (commonly referred to as an unfair labour practice, ULP, or simply an unfair) complaint with the Board.

Sign up as many people as possible, as soon as possible

You are most likely to succeed when at least 65% of the potential membership sign cards. You may be successful with 51% but it will likely be a fractious work force and a very difficult group to take into contract negotiations.

When signing cards don’t …

Pressure anyone to sign

This could serve as grounds for the labour board to reject certification.

Reveal names without permission

Take care not to use the names of people who have signed as a way to convince others to join, unless you have permission to do so.

Talk about “jobs”

Some people might think you’re promising (or threatening) their job in return for their support. That’s not legal, and could cost the union the campaign.

Tell them they’re signing a card to force a vote or to give people a “final say”

People need to know that signing a membership card shows they support a union.

Accept help from management

The law forbids management from helping in an organizing drive. Even if the offer is well intentioned, it should be politely refused as it could constitute a violation of the Act.

Management Rights and Management Tactics

We usually try to keep our organizing activities as confidential as possible, but sooner or later the employer finds out. Most employers will take at least some steps to stifle or interfere with a union organizing drive.

Organizers and inside committees need to let prospective members know what to expect if employers decide to start an anti-union campaign.

Here are some common employer tactics:

Suddenly, the employer starts to communicate much more frequently with workers. They send out leaflets and letters to employees (some to everyone, some to selected groups). They put messages on the notice boards and they hold meetings. They remind people they have an “open door” policy, even when this has never been the case.

Some of these activities may be illegal, but often they are not. The employer has his or her freedom or speech guaranteed. In some jurisdictions, even “captive audience meetings” are allowed. However, threats are illegal.

The employer promises to solve problems that have been around for years. In some cases, problems are actually resolved. The employer sets up representative committees and calls in selected workers to discuss current problems.

Some employers use scare tactics. They threaten lay-offs or closure. They intimidate workers and in some cases they actually lay workers off, or even fire them.

Management can:

Tell employees what they think about a union so long as the employer doesn’t use threats or undue influence.
Make a pitch for the company or organization and say how good the working conditions are.
Give everyone a raise during an organizing drive and some do. (If only talking about a union can get employees a raise, think of what really having a union might do!)
Increase benefits or start to hold monthly, weekly or daily meetings to solve problems.
Resolve problems that have irritated people for years only minutes after an organizing drive begins.

Management can’t:

Ask whether someone’s joined or is thinking of joining a union.
Ask about union meetings or activities.
Call someone into the office to talk about the union, unless that person asks for a meeting.
Discipline a union supporter for doing something employees who don’t support the union also do but get away with.
Visit employees in their homes to talk about the union.
Promise wage increases or other benefits if employees reject the join or say they might lose benefits if they’re for the union.
Tell you the organization will close down or lay people off or say that management will refuse to deal with a union if the employees choose to organize.
Help or even encourage employees who are organizing against a union.
Ban ordinary union buttons from the workplace if jewelry and buttons are normally allowed.

Management’s message

Management’s messages are designed to “sweet talk” workers and/or instil fear. One strategy is to convince the employees that a union is unnecessary because the current working conditions are similar to unionized institutions. Indeed employees are better off without a union because they already have everything the unionized workplaces have but they do not pay union dues!

Another strategy is to exploit fear of the unknown. The employer may refer to lay-offs, termination, refusal to deal with a union and permanent closure of the workplace.

The following are examples of messages employers may use:

Strikes

The prospect of a strike is one of the messages most likely to instill fear among employees.

Employers may stress a number of the aspects of strikes such as:

A majority vote means you are on strike even though you voted against it.
The union may fine members who cross picket lines and will pay only meager strike benefits.
Wages and employer payments of medical and life insurance premiums will stop.
Strikers are not eligible for unemployment insurance benefits.
Employees are unlikely to ever regain the money lost due to strikes.
Workers’ positions cannot be guaranteed because any financial gains achieved during the strike will mean future lay-offs.
Workers’ professional credibility will be damaged if they strike

“Unions cannot improve working conditions”

Having a union will not improve existing conditions. Wages and benefits are already in line with other facilities.
Lack of funding will not allow for improvements even if they are unionized.
Policies and procedures are already in place to deal with lay-off, promotions and conflict resolution (or they’re working on these policies right now).

“To instill fear and doubt, the employer will say:”

The union cannot deliver on its promises of higher wages, better benefits and more job security.
The employer has the right under the law to refuse to grant the union its demands.
Present benefits may even be lost and workers would be worse off than before they unionized.

“The Union is an outsider”

The employer may say that the “friendly relationship” between management and employees in the workplace will be lost because:

The union will create an “us versus them atmosphere”.
Employees will no longer be able to approach management directly and must pursue solutions to workplace problems through union channels.
Pay increases and promotions will no longer be based on merit.
Workers lose their individual rights because of the union.

“We know who signed up”

Often employers will tell workers that card signing is not confidential.

The employer may dwell on this point to such a degree that workers feel intimidated.
The employer may use this tactic to damage the union’s integrity by claiming the union misled people.

“We’ve made mistakes, but…”

If management sees the union is winning, it may admit that it has made mistakes. Given another chance, they say, wages and working conditions will improve. Workers may be led to believe that if the union loses the campaign and the employment situation does not improve, they can unionize later. The employer may urge the workers to “give them another chance”.

Times when an application may be filed – s. 7

Where there is no union now

An Application for Certification may be filed at any time s. 7.1

Where another union has been certified or voluntarily recognized

If no CA has been made within one year, another union may apply after that year has passed – s. 7.2 and .3

Where another union has made a three-year CA

Another union may apply after the commencement of the last three months of the CA – s. 7.4

Where another union has made a CA of longer than three years

Another union may apply during the 34^th^, 35^th^, and 36^th^ month of its operation, and during the last three months of each additional year, and during the last three months before its expiry – s. 7.5

A few things to consider on the importance of abiding by timelines and keeping good records

The employer is given two days (excluding Saturday and Sunday) from receipt of the application to provide their description of a proposed bargaining unit. In Glashau Hahn 2006 OLRB (p. 51 of ann.) the Board certified a trade union where the ER failed to file a response within the time required. A request for reconsideration on the basis that the employer had never received the application failed. The union provided fax confirmation that the application had been sent and there was no evidence that it had not actually been received by the ER’s fax machine. The union had done everything it was expected to do to deliver the application.
In Burns International Security Services 1996 OLRB (p. 53 ann.) an application was filed one day before the commencement of the last two months of the CA was held to be untimely. The CA provided that the agreement terminated ‘at midnight on april 26’ and the application for cert was filed on feb. 26. Because the CA specified a date as well as a time the open period did no commence until one second after midnight (-April 27) and therefore the application could not be filed until Feb 27.

Effect of previous applications

Previous unsuccessful application and previous application that were withdrawn or dismissed may cause the OLRB to refuse to deal with an application for certification.

The Act explicitly provides that a MANDATORY bar shall apply in three discrete circumstances:

s. 10(3) bar results where a trade union’s application for cert is dismissed after a vote
s. 7(9.1) bar results where a trade union withdraws two applications for certification within a six-month period
s. 7(10) bar results where a trade union withdraws an application for certification after a representation vote is taken

The Act provides that the OLRB may impose a discretionary bar:

The Board may refuse to entertain an application for certification where less than one year has elapsed from the withdrawal of a previous application for cert prior to a representation vote – s. 7(9)
the Board may bar an unsuccessful applicant for up to one year in other circumstances as well – s. 111(2)(k)

"Bargaining Freeze" under Section 86

The LRA provides for a statutory freeze that prohibits the unilateral alteration of terms and conditions of employment, first during the certification process, and then during much of the bargaining process after certification for bargaining the first agreement which reinforces the status of the bargaining agent and provides for an. important starting point from which to begin negotiations. Unless there is consent from the union, the employer cannot alter the rates of wages or any other term or condition of employment. The freeze ends when the union is in a legal strike position. Section 86(1) states:

"Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees."

Where the current collective agreement has expired and where notice has been given under Section 59, any differences between the parties as to whether the section has been violated may be referred to arbitration under the terms of the collective agreement. Freeze violations may also be the subject of an unfair labour practice application at the Ontario Labour Relations Board.

So this section is about freezing all terms and conditions of employment while an application for cert is before the OLRB and during negotiations for a CA. The status quo should prevail. The case law says that in addition to the terms and conditions – the reasonable expectations based on established and well entrenched conduct is also frozen – there is a case about Christmas bonuses for example – but interestingly in that same case the cancellation of the Christmas party was NOT a violation of the freeze because it was not inherently related to the employment relationship etc.

The status quo is obviously always changing so the Board has developed the “reasonable expectations test” and the business as usual test. Basically allows the ER to alter the terms and conditions of employment but not the status quo.

The Freeze expires when the parties are in a legal strike/lockout position. There does not need to be any anti-union animus on behalf of the ER to make out a s. 86 complaint.

Section 86 - Freeze Violation Complaint Checklist

Prepare a detailed chronology of all relevant events with dates and references to all relevant documentation.
Documents:
- Certificate
- Notice to Bargain
- Collective Agreement (if applicable)
- Correspondence with ER regarding issue in dispute
- Meeting minutes
- Schedules, seniority lists, workplace policies - whatever has been changed
- List of affected EEs and potential witnesses with contact information
- Pay stubs/summary of loss suffered by each individual EE
Key Information:
- Were these changes already underway or known to be coming down the pipeline prior to the Application for Certification being filed?
- Are these changes due to circumstances beyond management’s control?
- Is this issue now the subject of negotiations?
- Did the union consent to the changes?
- Did the ER make the union aware of the changes?

Sale of Business Applications - Section 69

Section 69 of the Act protects a union’s bargaining rights should the employer sell its business. The new employer steps into the shoes of the old employer with respect to the collective agreement or any application for certification that has been filed. The Board has said that what happens is that a new collective agreement is effectively created with the successor employer.

Sale of business applications can be complicated by the presence of another union in the newly merged or acquired workplace. The Board can determine what the appropriate bargaining units will be and order any representational votes necessary.

Although the union has the onus to prove that a sale of business has occurred the Act requires the employer(s) to provide all relevant documentation to the union prior to the hearing. Often a union will file a sale of business/related employer application with very little information about exactly how the sale of business took place.

The union is permitted a reasonable period of time following a sale of business to give notice to bargain to the new employer and file a sale of business application if necessary.

The Board has interpreted section 69 so as to protect bargaining right and not extend or create new bargaining rights. For instance, if an employer moves from one geographic location to another where the union does not have bargaining right the Board may not extend those rights to the new location.

Section 69 does not prevent a union from organizing the new employer in the normal course or seeking a voluntary recognition agreement with the new employer.

The purposes of section 69 operates on a number of levels (see Aircraft Metal Specialists Ltd. [1970] OLRB Rep. Sept. 702):

The first level is to prevent the subversion of bargaining rights by transactions which are designed to get ride of the union. Paper transactions. Corporate charades. The Board will look beyond the paper transaction to protect the union’s bargaining rights.
Another level is to preserve the bargaining rights with respect to work which has accrued to the benefit of the employees as a result of their union becoming the bargaining agent through certification or voluntary recognition. The right to participate in the business and its functions in that manner (wages, hours and other conditions of employment) is in the nature of a vested right and section 69 allows the union to pursue that bargaining right when all or part of the business is sold. The Board is interested in maintaining the bargaining rights where the sale involves a continuum of the business.

The Board has emphasized that section 69 is concerned with the effects of the business decision or dealings on established bargaining rights, rather than with the motivation for such decision or dealings. Accordingly, section 69 applies equally to commercial attempts to escape from bargaining rights and to bona fide business transactions which are not improperly motivated but which nevertheless erode established bargaining rights.

In Culverhouse Foods Ltd. [1976] OLRB Rep. Nov. 691, the Board noted that there are a number of factors to consider in an analysis of whether or not there has been a sale of business:

presence or absence of the sale or actual transfer of goodwill, a logo or trademark, customer lists, accounts receivable, existing contracts, inventory, covenants not to compete, covenants to maintain a good name.
Board has also looked to see if the same employees have continued to work for the successor employer and whether they are performing the same tasks. Existence of a hiatus in production
No list of significant factors could ever be complete, the number of variables is endless

The Board has said that the vital consideration is whether the transferee has acquired from the transferor a functional economic vehicle, focusing on the ‘going concern’ or ‘dynamic activity’. The Board has stressed that the transfer of work alone cannot trigger the successorship provisions and preserve bargaining rights since the business is not synonymous with the employees or their work.

There is no conclusive test applied by the Board to determine if there has been a sale of business. When assessing whether a transfer of a business may be inferred, the Board has always been especially sensitive to any pre-existing corporate, commercial or familial relationship between the predecessor and the alleged successor, or between the predecessor, the alleged successor and a third party (see Metropolitan Parking Inc. [1979] OLRB Rep. Dec. 1193). Where there is a pre-existing corporate connection between the predecessor and the successor the Board has been disposed to infer a ‘transfer’ if there is the slightest evidence of such transaction.

At any time a union or employer can apply to the Board to have associated or related employers treated as one employer for the purposes of the Act.

The Board considers a number of factors to determine if the related employers are under common direction and control including common ownership or financial control, common management, interrelationship of operations, representation to the public as a singe, integrated enterprise, and centralized control of labour relations.

No single criteria will likely be determinative; however, the greater the degree of functional coherence and interdependence, the more probable it is that the entities will be treated as one employer.

The Board has found the following factors to be relevant: common premises, common equipment, common sales staff, interchange of employees, common facilities, common telephone, common supervision, common solicitors, common directors and officers, common labour relations and personnel policies, similar work performed by employees of the different entities, common sales techniques, functional integration and interdependence of operations, common cheques issued to employees common office, bookkeeping and accounting facilities and presence of signs indicating associated existence.

The common direction and control must be managerial in nature. The test under section 1(4) looks to source the ultimate power to direct employees.

Public Sector Labour Relations Transition Act (PSLRTA)

The Public Sector Labour Relations Transition Act (PSLRTA) was created to deal with mergers, amalgamations and restructuring in the Municipal, Education and Hospital Sectors. The Act establishes certain rights for workers involved and provides a framework to determine union representation through a vote. Over the years PSLRTA has also been used for the downloading of various services from the Ontario Government to the Municipalities and for the mergers of the Children’s Aid Service agencies.

When two or more unions represent employees of the predecessor employers involved in the merger, the Ontario Labour Relations Board (OLRB) will determine what the new appropriate bargaining unit(s) will be, and then will hold a representation vote to determine which union will represent the ‘new’ bargaining unit(s).

When there are non union employees of a predecessor employer which comprise 40% or more of the newly created bargaining unit, a Non Union option will be included on the ballot and employees will be given the option of voting for an existing bargaining agent or to become Non Union.

Under PSLRTA employees who were covered by a collective agreement continue to be covered by a collective agreement even after the representation vote. Rates of pay, hours of work, and other working conditions continue to apply to you as they did before the representation vote. Wages and benefits will not be reduced as a result of the representation vote. That’s the law.

The existing collective agreements form a ‘composite’ collective agreement after the vote. Under the composite collective agreement employees will continue to have the same rights they had under their collective agreement before the vote, with one key difference. All employees will be covered by the successful union’s seniority, job posting, grievance procedure and layoff and recall language.

The composite collective agreement, along with the successful union’s seniority, job posting, grievance and layoff and recall provisions, remain in effect until a new 1^st^ collective agreement is negotiated between the employer and the successful union.

PSLRTA Campaigns

The parameters of a PSLRTA campaign are set by the OLRB, in consultation with the parties, and set out the length of the campaign, the unions’ access to employees at the workplace, as well as access to personal contact information.

Preparing for a PSLRTA vote

Usually we know well in advance that a PSLRTA will take place and it’s at that time we meet with the Local and Rep to assess where our own members are at and deal with any issues that are a concern for our members that may cause them to not support CUPE. Issues that have been ongoing for a long period of time will not be fixed in a 1 to 2 week campaign.

Dependent v. Independent Contractors

True independent contractors, individuals in business for themselves/self-employed, are not captured by the provisions of the Act. Some employees, however, do share certain characteristics of independent contractors, but are so dependent on a single employer that they more closely resemble an employee. These employees are defined as “dependent contractors” and the Act defines them as:

… a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor; (“entrepreneur dépendant”)

The Board has stated that the purpose of extending the benefits of the Act to dependent contractors is to address the mischief “created by persons who may very well outwardly manifest the trappings of independent entrepreneurs but who in an intrinsic sense are clearly in such a subservient economic position vis-à-vis the beneficiary of his services that he ought to be extended the protection intended by the collective bargaining process.” See Nelson Crushed Stone, [1977] OLRB Rep. Feb. 104.

To determine whether an individual is a true independent contractor or a dependent contractor, the Board has applied several different tests over the years, but no single test offers a fool-proof mechanism to determine the issue with certainty. Some factors the Board has considered to support a finding of independent contractor status include:

The use of, or right to use substitutes
Ownership of tools, equipment, supplies
Evidence of entrepreneurial activity
The selling of one’s services on the market generally
Economic mobility or independence, are they free to reject job offers, or work when/how they want
Variations in the fees charged and to whom
The level of integration of the individual in the business
Similarities between the terms and conditions of work of the individual in question and other individuals who are clearly employees
Degree of control over the means of performing the work

Having a written contract that explicitly states the individual in question is an “independent contractor” is not necessarily determinative.

When a genuine issue arises as to whether or not individuals are independent or dependent contractors, evidence, including the viva voce testimony of the individuals themselves, will be called.

ONTARIO LABOUR RELATIONS BOARD

INFORMATION BULLETIN NO. 1

Certification of Trade Unions

This Information Bulletin describes the procedures that must be followed when a union applies to represent a group of employees at a workplace. It does not describe the procedures that apply in applications made with respect to workplaces in the construction industry. For information on those procedures, please refer to Information Bulletin No. 6 ‑ Certification of Trade Unions in the Construction Industry.

It is important that the parties involved in a certification application read and comply with the directions in this Bulletin and the Board's Rules of Procedure. Failure to do so may result in the application or other materials not being processed by the Board.

If 40 percent or more of the employees in the bargaining unit proposed by the union appear to be members of the union that has applied for certification, the Board is required to conduct a representation vote. The vote is usually held five (5) days after the date the certification application is filed. In limited circumstances the vote may be delayed one or more days.

The materials that are required to file a certification application can be obtained from the Board at any time. The materials that are required for an employer to respond to an application for certification are delivered to it by the applicant union. The materials that are required for an affected trade union to intervene in an application are delivered to it either by the applicant or the Board, depending on the circumstances.

Parties to an application for certification are required to "deliver" to the other parties and "file" with the Board a variety of documents within a specified number of "days". The words "day", "deliver" and "file" are defined in the Board's Rules of Procedure to have very specific meanings. It is very important that you apply the following meanings to each of these words whenever they appear in this Bulletin.

"Day" does not include weekends, statutory holidays or any other day on which the Board is closed. (Rule 1.5)

"Delivered" Material is considered to be "delivered" on the day that it is actually received by the party to whom it is sent. (Rule 6.7) Where delivery is permitted and is accomplished by facsimile transmission, the fax confirmation sheet should be retained by the sender in case delivery, or the time of delivery, is later challenged.

"Filed" Material is considered to have been "filed" with the Board on the date it is actually received by the Board provided that it is received between the hours of 8:30 a.m. and 5:00 p.m. on a day on which the Board is open. Materials received after 5:00 p.m. will be deemed to have been filed with the Board on the following business day. (Rules 3.4 and 3.5)

I. *DELIVERY AND FILING OF THE CERTIFICATION APPLICATION*

In order to apply for certification, a union must fulfill the following delivery and filing requirements.

1) Delivery of Certification Package to Employer

The union must deliver a Certification Package to the employer before it files its Application with the Board. The package may be delivered by hand delivery, courier, or facsimile transmission.

The Certification Package consists of the following materials arranged in the following order:

(i) one Notice to Employer of Application for Certification (Form C-1). The union must fill in its name and the employer's name on page 1 and the date on page 3 of the Notice before making the delivery;

(ii) one copy of the completed Application for Certification (Form A-1);

(iii) one blank Response to Application for Certification (Form A-2), including Schedules A and B (list of employees) and the Instructions for filing Excel Schedules with the Board, found at Tab 4 of the Spreadsheet;

(iv) one blank Confirmation of Posting (A-124);

(v) one Information Bulletin No. 1 - Certification of Trade Unions;

(vi) one Information Bulletin No. 3 - Vote Arrangements;

(vii) one Information Bulletin No. 4 ‑ Status Disputes in Certification Applications; and

(viii) one copy of Part III of the Board's Rules of Procedure.

(Rule 9.3)

Note:The union is NOT to deliver to the employer a list of names of union members, evidence of their status as union members, or a copy of the Declaration Verifying Membership Evidence (Form A-4).

2) Delivery of Application to Affected Trade Unions

If the applicant is aware of any union that claims to represent any employees who may be affected by the application, it must deliver the material listed below to that affected union. This material may be delivered by hand delivery, courier, or facsimile transmission and must be received by the affected union(s) no later than the date the employer receives the Certification Package.

(i) one copy of the completed Application for Certification (Form A-1);

(ii) one blank Intervention in Application for Certification (Form A-3);

(iii) one Information Bulletin No. 1 - Certification of Trade Unions;

(iv) one Information Bulletin No. 3 - Vote Arrangements;

(v) one Information Bulletin No. 4 ‑ Status Disputes in Certification Applications; and

(vi) one copy of Part III of the Board's Rules of Procedure.

(Rule 9.4)

Applicants should make every effort to identify and notify affected unions as failure to do so may result in the vote being delayed.

3) Filing of Certification Application with the Board

Not later than two (2) days after delivering the Certification Package to the employer, the applicant must file its application with the Board. The application may be filed by any means, except facsimile transmission, e-mail or registered mail, and must include:

(i) one signed original of the completed Application for Certification (Form A‑1);

(ii) any membership evidence relating to the application. This evidence must be in writing and signed by each employee concerned, and it must indicate the date each signature was obtained;

(iii) a list of employees, in alphabetical order, corresponding with the membership evidence filed; and

(iv) a Declaration Verifying Membership Evidence (Form A-4).

(Rules 6.2 and 9.1)

If the applicant does not file the application with the Board within two (2) days after delivering the Certification Package to the employer, the matter will be terminated. (Rules 6.11 and 6.13)

II. *BOARD CONTACTS THE PARTIES TO CONFIRM THAT THE APPLICATION HAS BEEN FILED*

On the Application Filing Date (the day the application is received by the Board), the Board sends, by facsimile transmission, a Confirmation of Filing of Application for Certification to the union and employer (and any affected party(ies)). This letter confirms that the application has been filed with the Board, provides the Application Filing Date and Board File Number, reiterates the employer's obligations that are set out in its Notice to Employer of Application, and directs the employer to make and post copies of the Notice to Employees and the Application for Certification (Form A-1).

The Board also contacts the employer by telephone on the Application Filing Date, or the following day, to again confirm that the application has been filed, to clarify the employer's obligations, to advise that a vote will normally take place five (5) days after the Application Filing Date, and to inform the employer that it can expect a Board Officer to contact it after it files its response.

The employer should contact the Board to determine whether or not the application has been filed only if it has not received a Confirmation of Filing of Application by the end of the second day after the employer received the Certification Package. If an application is not filed within two (2) days after the employer received the Package, the employer will be advised by the Board that the matter is terminated. (Rule 6.13)

III. *EMPLOYER'S OBLIGATIONS*

1) Post Application and Notice to Employees

Upon receipt of the Confirmation of Filing, the employer must IMMEDIATELY make and post copies of the Application for Certification (Form A-1) and the Notice to Employees of Application for Certification. These documents are to be posted adjacent to one another in a sufficient number of locations so that they are likely to come to the attention of all employees affected by the application.

The Notice to Employees of Application for Certification advises employees that a union is applying for certification and directs them to the adjacent Application for Certification for details about the application. The Notice also notifies the employees that a secret ballot vote will likely be held five (5) days after the Application Filing Date. In addition, the Notice advises employees of their rights, including the right to make statements to the Board about the application, and alerts them to look for future postings that will inform them of voter eligibility, the date, time and location of the vote, and the date and location of meetings with Labour Relations Officers and hearings.

2) File and Deliver a Response

No later than two (2) days after it received the Certification Package, the employer is required to post and deliver its response to the applicant union and file its response with the Board. The response may be delivered to the union by hand delivery, courier, or facsimile transmission. Two copies of the response should be filed with the Board, as described below. The response must consist of the following materials:

(i) Response to Application for Certification (Form A-2).

(ii) Schedules A & B (Employee Lists). The Schedules assist the Board in determining which employees are eligible to vote. The employer must include on these Schedules the names of all employees who fall within the union's proposed bargaining unit and, if the employer is proposing a bargaining unit that is different from the union's, the names of employees who fall within the employer's proposed unit.

All employees who fall within the union's and employer's proposed bargaining units who have an ongoing employment relationship with the employer on the Application Filing Date are to be included on the Schedules. For example, employees who are on vacation, maternity leave, sick-leave or other leave, workers' compensation, or lay-off on the Application Filing Date are to be included on the Schedules if there is a reasonable expectation of their return to employment.

In addition to hard-copy versions attached to the Response, the Schedule(s) (i.e. the List(s) of Employees) should also be sent to the Board in Excel format by email to vote.coordinator@ontario.ca (please note that the Board will accept ONLY these Schedules by email – no other material can be filed with the Board by email). Pre-formatted Excel versions of these documents may be found on the Board’s website (www.olrb.gov.on.ca ).

Copies of these schedules should also be provided by email to the primary contact for the Applicant Union. The Union should indicate its challenges on the appropriate column in the Excel Schedules, and send them by email to vote.coordinator@ontario.ca, with a copy to the primary contact for the Employer (and other Union(s), if applicable).

3) File the Confirmation of Posting (Form A-124)

(a) No later than one day after its Response is due the employer must confirm that it has posted the Application, Notice to Employees, and its Response.

4) Deliver to Affected Trade Unions

(a) Affected Trade Union Identified by Applicant Union

The employer is also required to deliver a copy of its response to any affected trade union identified by the union in paragraph 7 of the Application for Certification no later than two (2) days after it received the Certification Package. The response may be delivered by hand delivery, courier, or facsimile transmission, and must consist of the Response to Application for Certification (Form A-2) and Excel Schedules A & B (Employee Lists).

(b) Affected Trade Union Not Identified by Applicant Union

The employer is required to deliver the documents listed below to any trade union that the employer is aware claims to represent an employee who may be affected by the application, which was not identified as an affected trade union by the applicant union. These documents may be delivered by hand delivery, courier, or facsimile transmission, and must be delivered no later than two (2) days after the employer received the Certification Package.

(i) a copy of the completed Application for Certification (Form A-1);

(ii) a copy of the completed Response to Application for Certification (Form A-2), including Excel Schedules A & B (Employee Lists);

(iii) a blank copy of Intervention in Application for Certification (Form A-3);

(iv) a copy of Information Bulletin No. 1 ‑ Certification of Trade Unions;

(v) a copy of Information Bulletin No. 3 ‑ Vote Arrangements;

(vi) a copy of Information Bulletin No. 4 ‑ Status Disputes in Certification Applications; and

(vii) A copy of Part III of the Board's Rules of Procedure.

IV. *AFFECTED TRADE UNION (IF ANY) FILES AND DELIVERS INTERVENTION*

If any trade union that 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 an Intervention in Certification Application (Form A-3) with the Board and deliver a copy of it to both the applicant and employer. The Intervention must be received by the Board, the applicant, and the employer no later than two (2) days after the affected union received the application. The intervention may be filed with the Board by any means, including facsimile transmission, except e-mail or registered mail. The intervention may be delivered to the applicant and employer by hand delivery, courier, or facsimile transmission. One copy of the intervention should be filed with the Board.

(Rules 6.2, 6.3, 6.4 and 6.9)

Note: The vote will likely be delayed by two days in cases where the affected trade union is first identified by the employer.

V. *BOARD ORDERS THE VOTE*

1) Vote Arrangements Determined

The Board's Vote Co‑ordinator examines the vote arrangement proposals filed by the union and employer (and intervenor, if any) and sets the vote arrangements.

In setting the vote arrangements, the Co‑ordinator considers the parties' submissions, the number of voters, the employees' regular working hours, and the cost to the Board. The Co‑ordinator typically accommodates any agreed upon arrangements, but if it is determined that they are unsuitable because they are too costly or do not adequately allow employees the opportunity to vote, or if there is no agreement, the Co‑ordinator normally sets the arrangements without further consultation with the parties.

In the normal course, the vote takes place on the employer's premises five (5) days after the Application Filing Date.

For more detailed information on vote arrangements, refer to Information Bulletin No. 3 - Vote Arrangements.

2) Voting Constituency Determined and Vote Ordered

The Board determines the appropriate voting constituency (a description of the portion of the employer's workforce that is eligible to vote) after considering the union's and employer's proposed bargaining units. If the statutory criteria for holding a vote are met, the Board orders that a vote be held among the employees in the voting constituency. (Please note that the voting constituency does not necessarily correspond with the bargaining unit that will ultimately be found to be appropriate for collective bargaining.)

A Board Decision ordering the vote and a Notice of Vote and of Hearing is sent by facsimile transmission to the union and employer (and any intervenor). These documents set out the voting constituency, the date, time and place of vote, directions concerning sealing the ballot box or segregating or counting the ballots where appropriate, and the dates, times and locations of both the Regional Certification Meeting with a Labour Relations Officer and of the Hearing before the Board.

The employer (and any intervenor) is also provided with a copy of the applicant's Declaration Verifying Membership Evidence (Form A-4) at this time.

3) Employer to Post Decision and Notice to Employees

Upon receipt, the employer must immediately post copies of the Decision and the Notice of Vote and of Hearing adjacent to each of the earlier posted Notices to Employees of Application for Certification. The employer must then confirm to the Board that it has completed the postings by filing with the Board by facsimile transmission a completed Confirmation of Posting (Form A-124).

VI. *PRE-VOTE CONSULTATION PROCESS*

After the vote has been ordered but before it is held, a Board Officer contacts the parties, usually over the telephone, in an effort to reach agreement between the parties on all issues surrounding the vote, including: the bargaining unit description (the union and employer may agree on a bargaining unit that is smaller than the voting constituency ordered by the Board, in which case employees who fell within the voting constituency but not within the agreed upon bargaining unit are entitled to vote, but their ballots are segregated and are not counted); the voters list, which is developed from Excel Schedules A and B (the lists of employees provided by the employer); the correct name of the employer; the status of the trade union; and the timeliness of the application.

Agreements reached by the parties during the pre-vote consultation process are confirmed by the Officer in writing and sent to the parties by facsimile transmission. In the interests of fairness and finality, parties cannot later raise issues about matters to which they have earlier agreed.

VII. *VOTING DAY*

1) Conduct of the Vote

The vote is conducted by a Board Officer. Individuals who have been selected by the parties to be scrutineers must arrive at the polling place 15 minutes in advance of the voting to receive instructions, examine the ballot box, and otherwise assist the Board Officer in the preparation of the polling place.

At the outset of the voting, each scrutineer is provided with a copy of the agreed upon voters list (if any). They are asked to assist in the identification of voters and to mark voters' attendance on the list as they present themselves to the Officer to vote. Scrutineers are advised that any questions asked by individuals regarding their eligibility to vote or any other matter should be directed to the Board Officer.

The names of any individuals whose eligibility to vote is challenged are marked as such on the voters list and their ballots are segregated. Individuals whose names do not appear on the voters list are permitted to vote and their ballots are also segregated.

Except in displacement applications, generic ballots that do not identify the union or employer by name are used. The names of the parties are set out in a Notice that is placed in every voting booth.

The scrutineers are given an opportunity to sign a Conduct of Vote form after the vote is completed. Signatories to this form certify that the balloting was fairly conducted, that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.

2) Further Settlement Discussions

On the day of the vote, the Officer who conducts the vote engages the parties in settlement discussions on any issues that remain in dispute. All agreements are recorded in writing.

If the parties have resolved all issues raised up to that point, or agree to the point that a hearing is not required to resolve outstanding issues, they are asked to sign a Certification Worksheet. This document sets out the parties' agreements and confirms that the signatories have waived their right to a hearing subject to their right to file representations relating to any new matter in the five (5) days following the vote or to respond to representations filed by any other party.

3) Counting the Ballots

Ballots may or may not be counted on the day of the vote, depending on the directions of the Board, the agreements of the parties, and the discretion of the Board Officer. It may be necessary in some circumstances to seal the ballot box until outstanding disputes have been resolved.

4) Report of Vote Provided and Posted

The Board Officer who conducts the vote normally provides a copy of the Board Officer's Report of Vote to the parties on the day of the vote. This Report sets out whether the ballots were counted and, if so, the outcome of the vote, and explains that the parties and employees have five (5) days to file objections to the vote. Upon receipt, the employer is required to immediately post copies of the Report adjacent to each of the earlier posted Notices to Employees of Application for Certification, and then confirm that it has completed the postings by filing with the Board by facsimile transmission a Confirmation of Posting (Form A-124). The union must also, at the earliest opportunity, advise the Board as to whether the employer has completed the postings by filing with the Board by facsimile transmission a Confirmation of Posting.

VIII. *AFTER THE VOTE*

1) Statement of Representations

Any person who wishes to say something to the Board concerning the vote or any other previously unidentified issue remaining in dispute must file a statement of representations with the Board and deliver a copy of the statement to the union, employer, and any affected trade union, whose names and addresses can be found on the Application for Certification. (The name and address of an affected trade union that was first identified by the employer will not be on the Application for Certification. The Board will send a copy of any representations it receives to such a union.) This statement may be filed by any means, including facsimile transmission, except for e-mail or registered mail and must be received by the Board and the other parties no later than five (5) days after the day of the vote. (Rule 11.3)

The Board reviews any representations it receives. If the parties have agreed on all issues in dispute and no relevant representations have been received, a final decision will normally issue and the Regional Certification Meeting and Hearing will be cancelled. If issues remain in dispute and/or relevant representations are received, the matter will proceed to the Post‑Vote Mediation ("Waiver") Process.

2) Post-Vote Mediation ("Waiver") Process

A Board Officer contacts the parties, usually by telephone, to discuss and attempt to resolve all outstanding issues. This contact normally takes place in the period after the end of the five (5) day representation period and before the scheduled Regional Certification Meeting. If issues are still in dispute after the Waiver Process, the matter proceeds to a Regional Certification Meeting.

3) Regional Certification Meeting

A Regional Certification meeting is a meeting with a Board Officer ordinarily held in the regional centre closest to the workplace on the Wednesday of the third week after the week in which the vote is held. At this meeting, a Board Officer again assists the parties in an attempt to resolve, or at least narrow, the remaining issues.

For information on what occurs at and after the Regional Certification Meeting when there is a dispute as to whether an individual is properly on the voters list, see Information Bulletin No. 4 -- Status Disputes in Certification Applications (Non-Construction).

4) Hearing

If issues remain in dispute after the Regional Certification Meeting, a hearing begins at the Board's offices in Toronto on the Monday of the fourth week after the week in which the vote is held.

Board hearings are open to the public unless the panel decides that matters involving public security may be disclosed or if it believes that disclosure of financial or personal matters would be damaging to any of the parties. Hearings are not recorded and no transcripts are produced.

The Board issues written decisions, which may include the name and personal information about persons appearing before it. Decisions are available to the public from a variety of sources including the Ontario Workplace Tribunals Library, and over the internet at www.canlii.org, a free legal information data base. Some summaries and decisions may be found on the Board’s website under Highlights and Recent Decisions of Interest at www.olrb.gov.on.ca.

ONTARIO LABOUR RELATIONS BOARD

INFORMATION BULLETIN NO. 3

Vote Arrangements

All parties to certification applications and to termination applications made under section 63 of the Labour Relations Act are required to file proposals for vote arrangements as part of their application, response, or intervention. The purpose of this Information Bulletin is to assist these parties in completing their proposals.

The Board typically accommodates any arrangements that are agreed upon by all parties. However, if it is determined that the vote arrangements agreed to by the parties are not suitable because they are too costly or do not adequately allow employees the opportunity to vote, or if the parties do not agree on vote arrangements, the Board normally sets the arrangements without further consultation with the parties. As such, it is important for the parties to clearly set out all of their reasons for their proposed arrangements when completing their form.

Please read the following before completing the vote arrangements portion of your form.

1) DATE OF VOTE

In certification applications, the date of the vote is usually the fifth day (excluding weekends and holidays on which the Board is closed) after the date on which the application is filed with the Board (the "Application Filing Date").

In termination applications, the date of the vote will usually be five (5) to eight (8) days after the Application Filing Date.

If there is a specific date or dates close to the date on which the vote may reasonably be expected to be held that would not be appropriate for a vote to be held, you should identify such dates and state why they are not appropriate.

The Board does not conduct advance polls or allow voting by proxy. Only in very unusual circumstances is mail‑in balloting allowed. The Board does not use mail‑in balloting to accommodate employees who are absent from the workplace on the day of the vote because of illness, vacation, or any other reason.

2) HOURS OF VOTE

When proposing the hours for the vote, parties should balance the need to economically use the Board's resources with the general rule that the vote should be arranged so that most employees have the opportunity to vote during regular working hours.

Generally, not more than one hour should be allowed for each sixty (60) eligible voters. If multiple polling locations are necessary, parties should make every effort to allow for one Officer to travel to different locations rather than requiring more than one Officer at simultaneous polls.

3) LOCATION OF POLL(S)

The vote takes place on the employer's premises in all but the most unusual circumstances. The polling place should be as free from noise as circumstances permit, readily recognizable by name or description, and easily accessible to all employees. Votes are typically held in places such as lunchrooms, cafeterias, and empty offices.

The polling place should be equipped with a table and chairs for the Board Officer and each party's Scrutineer. A second table that is large enough to accommodate a voter's screen and ballot box (both provided by the Board Officer) and allows for privacy while voters cast their ballots should also be available.

4) CONTACT PERSON

Each party must provide the Board with the name, phone number and facsimile number of an individual who is regularly available by phone during the period of time (excluding weekends and holidays on which the Board is closed) leading up to the vote to discuss the application. These individuals should have authority to act for the party they represent and to bind them with their agreements.

5) FORM OF BALLOT

Generic ballots that do not identify the union or employer by name are used when there is only one union involved in the application. Instead, the names of the union and employer are set out in a Notice in every voting booth. In Certification Applications where the applicant is applying to displace an incumbent union, both unions' names appear on the ballot. The name of the incumbent union appears at the top of the ballot with the name of the applicant union below it.

In both Applications for Certification and Applications to Terminate Bargaining Rights, the union(s) is asked to indicate its name as it wishes it to appear on the Notice in the voting booth or on the ballot. The name that appears is usually the union's correct legal name. If a union's correct legal name is long and/or cumbersome and it is known by a shorter name, the union may ask to have the shorter name used.

6) NAMES OF SCRUTINEERS TO ATTEND AT THE POLLING PLACE

Each party must select one Scrutineer for each polling place. Individuals may act as Scrutineer at more than one polling place as long as the polling places are not open simultaneously. Scrutineers have the following duties and privileges:

a) to assist in the identification of voters;

b) to mark voters' attendance on the Voters List;

c) to challenge prospective voters on the basis of identity, or to challenge any person whose right to vote appears doubtful; and

d) to otherwise assist in the conduct of the vote as required by the Board Officer.

Parties should select as their Scrutineer a person who is familiar with the individuals in the plant or operation who will be voting and who is available to act during the entire time the poll is open. Scrutineers should report to the Board Officer at least 15 minutes before the poll opens to receive instructions, examine the ballot box and assist in the preparations for the opening of the poll.

7) NAMES OF REPRESENTATIVES TO ACT AS AGENTS AT THE COUNTING OF THE BALLOTS

Each party must select a representative to act as its agent at the counting and tabulation of the ballots. The person you select to act as your representative will be presumed to have your authority to participate in discussions with the Board Officer and enter into agreements on your behalf. Following the vote, the Board Officer will attempt to resolve any outstanding issues, including the bargaining unit description, any challenges to whether persons/employees are in or out of the bargaining unit, and spoiled ballots. At the conclusion of these discussions, the parties will be requested to sign a worksheet confirming any agreements reached. Each party will be provided with a copy of the worksheet for their records.

ADDITIONAL ORGANIZING MATERIALS\

Websites:

http://rankandfile.ca/ - Canadian labour news and analysis from a critical perspective

http://lawofwork.ca/ - Breaking News, Case Summaries, Commentary, and Arguments on the Law of Work by Professor David Doorey of York University.

http://www.labourstart.org - Compiles a lot of labour news stories from around the world and Canada.

http://www.economicsforeveryone.ca - Economics for Everyone is backed by a comprehensive set of web-based instructional materials – including a course outline, lecture notes, student exercises, and a glossary, all available for free on the web. This book can thus be part of a broader, ready-made popular economics course for unionists, activists, and just plain regular concerned individuals.

http://worklabournewsresearch.tumblr.com - Good blog that covers all matters related to unions and work in Canada.

http://cirhr.library.utoronto.ca/perry-work-reports-home - Go here to subscribe to the Perry Work Report produced by the Industrial Relations and Human Resources Library.

Movies:

Pride (2014) U.K. gay activists work to help miners during their lengthy strike of the National Union of Mineworkers in the summer of 1984.

Matewan (1987) A labor union organizer comes to an embattled mining community brutally and violently dominated and harassed by the mining company.

Norma Rae (1979) A young single mother and textile worker agrees to help unionize her mill despite the problems and dangers involved.

Germinal (1993) In mid-nineteenth-century northern France, a coal mining town's workers are exploited by the mine's owner. One day, they decide to go on strike, and the authorities repress them.

Bread and Roses (2000) Two Latina sisters work as cleaners in a downtown office building, and fight for the right to unionize.

Harlan County USA (1976) A filmed account of a bitterly violent miner strike. Won Best Documentary Feature Oscar.

North Country (2005) A fictionalized account of the first major successful sexual harassment case in the United States -- Jenson vs. Eveleth Mines, where a woman who endured a range of abuse while working as a miner filed and won the landmark 1984 lawsuit.

Salt of the Earth (1954)Based on an actual strike against the Empire Zinc Mine in New Mexico, the film deals with the prejudice against the Mexican-American workers, who struck to attain wage parity with Anglo workers in other mines and to be treated with dignity by the bosses. In the end, the greatest victory for the workers and their families is the realization that prejudice and poor treatment are conditions that are not always imposed by outside forces.

The Corporation (2003) Documentary that looks at the concept of the corporation throughout recent history up to its present-day dominance.

Capitalism: A Love Story (2009) An examination of the social costs of corporate interests pursuing profits at the expense of the public good.

Made in Dagenham (2010) A dramatization of the 1968 strike at the Ford Dagenham car plant, where female workers walked out in protest against sexual discrimination.

Cradle Will Rock (1999) A true story of politics and art in the 1930s U.S., focusing on a leftist musical drama and attempts to stop its production.

[^1]: Guide to Organising, Trades Union Congress, June 2007, p.12

[^2]: Guide to Organising, Trades Union Congress, June 2007, p.13

[^3]: Guide to Organising, Trades Union Congress, June 2007, p.12

[^4]: Guide to Organising, Trades Union Congress, June 2007, p.9-10