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Certification Eligibility

How do I know if a workplace is eligible for certification?

General

References to the Act and to the Rules of Procedure are references to the Prince Edward Island Labour Act. References to the Board are references to the Labour Relations Board as established under the Prince Edward Island Labour Act.

The Board is required by the courts to take a consistent approach in matters of practice and procedure so as to operate effectively and command the respect of parties appearing before the Board and of the public. Moreover, consistency in the Board's approach to decision making is encouraged so as to avoid conflicting results in similar cases. However, the decision of one panel of the Board cannot bind another panel, and consistency in decision making cannot compromise the capacity of any panel member to decide in accordance with the member's conscience and opinion.

Definition

Every employee has the right to be a member of a trade union and to participate in its lawful activities. Certification is the process by which a group of employees can choose to be represented by a trade union. A group of employees represented by a trade union is referred to as a bargaining unit.
It is the role of the Board to determine who is a member of a bargaining unit. The process of certification is one of majority rule, meaning that if a majority of the eligible employees in the bargaining unit, as determined by the Board, support a trade union, all employees in the bargaining unit will be included in the certification. Once certified a trade union becomes the bargaining agent for the unit.
The bargaining agent has the exclusive right to represent the employees in the unit. Once an application for certification has been filed an employer is generally no longer permitted to negotiate working terms/conditions directly with their employees. The negotiation of terms and conditions of employment takes place during the collective bargaining process. It is through collective bargaining that a bargaining agent and an employer reach a collective agreement, or contract. The collective agreement governs the parties' working relationship and is binding on the bargaining agent, the employer, and all the employees in the bargaining unit.

An Overview

There are four basic elements of an application for certification. These are as follows:

The application must be timely;
The applicant must have status as a trade union under the Act;
The bargaining unit for which certification is sought must be one that is appropriate for collective bargaining;
A majority of the employees in the bargaining unit must support the application.

Timeliness

If the employees in a bargaining unit are not represented by a bargaining agent, a trade union can file an application for certification at any time. If employees are currently represented by a bargaining agent, the Act limits the periods during which a different trade union can apply for certification of the same bargaining unit. This is commonly referred to as the open period.

Trade Union Status

Only a trade union, as defined by the Act, is entitlement to certification. To be a trade union under the Act, an organization must demonstrate the following:

It must be an organization of employees. The Act does not permit employer-dominated unions.
One of the purposes of the employee organization must be the regulation of relations between employees and employers.
It must have a written constitution, rules or by-laws which set out the purpose and objectives of the organization and which define the conditions for membership in the organization.

To prove status, an employee organization is generally required to present evidence at a Board hearing. Ordinarily, this is done through the testimony of a union official who has personal knowledge of the affairs of the organization.

Appropriate Bargaining Unit

The Board can certify a trade union as a bargaining agent for a group of employees in an appropriate bargaining unit. There can be more than one appropriate bargaining unit and the trade union and the employer can both propose a description of an appropriate bargaining unit. However, it is for the Board to determine what constitutes an appropriate unit in the circumstances of each case, and the Board is not bound by a proposed description and may exclude from or include additional employees in the unit.

In general industry, some general considerations in determining an appropriate bargaining unit can include:

Community of interest among employees;
Practice of history of collective bargaining in the workplace;
A presumption against fragmentation of the unit;
Agreement of parties;
Desire of the employees.

To determine whether there is a community of interest among different employees the Board may consider:

the nature of the work performed by employees;
the conditions of employment;
the skills of employees;
the relationship to administrative organization of the employer;
the geographic proximity of the employees;
the interdependence and proximity of the working relationship;
the commonality of supervision and labour relations.

These considerations are applied with sensitivity to the circumstances of each case and no one factor is determinative.

Managers and persons employed in a confidential capacity in matters relating to labour relations are excluded from the bargaining unit. Knowledge of confidential management affairs is not sufficient to exclude an employee from the bargaining unit; the knowledge must be in the area of labour relations.

Management functions can include such things as hiring, firing, determining wages, and disciplining employees, amongst other things; it can also include independent decision-making responsibilities in matters of policy or the running of an organization.

In the construction industry, an appropriate bargaining unit is determined in most cases on the basis of geographic area and the trade of the employees.

The Act deems a unit to be appropriate for collective bargaining if all the employees in the unit are employed in a recognized construction trade and the application is made by a trade union that has historically represented employees in that trade.

The description of an appropriate bargaining unit in construction industry will ordinarily make reference to a specific geographic area. This area can include the entire province or be confined to specific geographic areas. Generally, the Board does not limit the geographic area to a specific project.

Employee Support

Once the Board has made a determination that a bargaining unit is an appropriate bargaining unit, the Board must determine the level of support enjoyed by the trade union. A majority of the employees in the bargaining unit must be members in good standing of the trade union or have cast their vote in favour of the trade union in a representation vote, before the trade union will be certified as a bargaining agent.

A member in good standing includes an employee who has made a written application for membership and paid on his own behalf at least two dollars for initiation fee or union dues. This membership or initiation fee must have been paid within the three-month period immediately preceding the month in which the application is made.

Contact

Charlottetown

J. Elmer Blanchard Building

Walsh, Hazel (Administrative Assistant - Labour Relations Board)