This leaflet is meant to provide answers to questions which are often asked by employers when their employees decide to be represented by a trade union.  The statements made here are not official interpretations of the Trade Union Act, and they have no legal standing.  They are, however, based on rulings made by the Saskatchewan Labour Relations Board over a long period of time, and give a clear picture of the approach which the Board has followed on numerous occasions.

The Saskatchewan Trade Union Act says, in Section 3, that employees “have the right to organize in, and to form, join or assist trade unions and to bargain collectively through a trade union of their own choosing.”

It should be noted that this section, which is in some respects the most important provision in the Act, makes it clear that employees have the right to make this decision for themselves.  It is illegal for an employer to interfere with the making of this decision, or to try to influence the outcome.

Q.        How will I know when my employees are deciding to be represented by a trade union?

Many employers will become aware that a trade union is conducting a campaign to try to gain the support of employees by means of reports from employees or management staff.  A trade union is not required to notify an employer that an organizing campaign has started.

Q.        Is there anything I can do to convey to my employees how I feel about the possibility of unionization?

When employees are trying to make up their minds whether they wish to exercise their right to be represented by a trade union, great care must be taken to ensure that their choice is genuinely their own, and that their opinions are not affected unduly by the influence of the employer.

An employer has considerable influence over individual employees.  It almost goes without saying that an employer cannot use open threats, intimidation or coercion to convince employees that they should not support a trade union.

  The Labour Relations Board has also recognized that, because of the power of the employer over the work life of employees, even subtle pressure exerted by the employer can prevent employees having a truly free choice.

The Trade Union Act does not preclude employers from saying anything to their employees at all.  Clearly employers must continue to communicate with their employees concerning their duties and the day to day business of the enterprise.  It is risky, however, for an employer to make statements to employees which might be construed as an attempt to influence them in making the decision about unionization.  Any statement which might be seen in this light will be closely scrutinized by the Board if the employees or the trade union complain.  The Board has found on many occasions that communications which employers themselves regard as harmless have a coercive effect on employees, and therefore constitute a violation of the Trade Union Act.

  An example of this may be when an employer states an opinion that things are going well as they are, and questions the need for trade union involvement.  Employees may interpret this as an indication that an employer will be displeased if they support trade union organizing.

Q.        Can I do anything to prevent disruptions at the workplace during an organizing campaign?

A trade union is not entitled to disrupt the ordinary work done by employees during an organizing campaign.  An employer can restrict access to company property or prohibit contact being made with employees during working time.  A trade union is entitled, however, to reasonable access to employees on their own time, during meal breaks, for example.  An employer cannot place unreasonable restrictions on this.

Q.        How will I know whether the trade union is successful in organizing the employees?

In order to gain legal status as the bargaining agent for employees, the trade union must file an application with the Saskatchewan Labour Relations Board asking to be certified as the bargaining agent for a particular group of employees.  This application must be accompanied by evidence, in the form of signed union membership cards, showing that a majority of employees in the group support the application.  When an application is filed with the Board, a copy of the application is sent to the employer.

Q.        What is my responsibility when I receive notice that an application for certification has been filed?

An employer is given ten days from the time the application is filed to provide the Board with a Statement of Employment, which is a list of all of the employees in the proposed bargaining unit, along with their signatures.  A representative of the trade union is entitled to be present when the signatures are obtained.  In cases where large numbers of employees are involved, an employer may be allowed to file the TD1 forms which employees signed at the commencement of their employment for income tax purposes.

The employer may also file a Reply to the application.  In this document, the employer provides basic information, such as the way the employer should be correctly identified.  It is also open to an employer to state some kinds of objections to the application, for example, to the way the bargaining unit is described.  If the employer does not file a statement of employment or reply within the mandated time period, the certification application will be treated as uncontested.

Q.                What kind of evidence does the union file to show that they enjoy the support of the majority of employees?

The evidence filed by the trade union takes the form of cards signed by individual employees, which indicate that they have joined the trade union and that they are authorizing the trade union to represent them in bargaining with their employer.

As indicated earlier, the Board regards it as important to safeguard the right of employees to make for themselves the choice of whether they wish to be represented by a trade union.  For this reason, the signed cards which are filed are kept in confidence by the officials of the Board, and the identity of individual employees is not disclosed.

It should be noted that no evidence of support or withdrawal of support which is filed after the application is filed will be considered by the Board.

Q.        Will there be a hearing concerning the application for certification?

If no reply or statement of employment is received from the employer within the time specified by the Board Registrar, the application for certification will be treated as uncontested and considered by the Board without a hearing.  Likewise, if the reply and statement of employment filed by the employer do not disclose any dispute with the application, the application will be treated as uncontested and considered by the Board without a hearing.

If a hearing is necessary, it will take place within twenty (20) days after the filing of the application for certification.  The hearing date is specified in correspondence forwarded to both the union and the employer immediately after the application is filed.  Hearings of the Board usually take place in either Regina or Saskatoon.  Each case is heard by a panel which consists of either the Chairperson or Vice-Chairperson of the Board, who are both neutral persons trained as lawyers, along with one representative of employers and one representative of employees.

At the hearing, the parties may wish to present evidence on certain issues.  The employer and the trade union may not be in agreement about the way the bargaining unit should be described, for example.  There may be some dispute, in other instances, over whether particular individuals are actually “employees” within the meaning of The Trade Union Act, or whether they are in fact members of management or independent contractors.

An employer is not generally allowed, however, to object to the certification application as such, or to inquire into the views of individual employees.

Following the hearing, the Board will consider the material and evidence which has been submitted.  If the bargaining unit is found to be appropriate, and if the trade union has filed evidence of support from the majority of the employees, a certification order will be issued.  This order will indicate that the trade union has been certified, and that the employer is legally obligated to bargain collectively with the trade union about the terms and conditions of employment of the employees in the unit.

Q.                Do employees ever vote on union representation:

In nearly all cases, the evidence of support filed by the trade union will give a clear indication of whether the majority of employees in the bargaining unit are in favour of certification.  In very rare instances, however, there may be some doubt about this.  This may be the case, for example, where more than one trade union seeks certification for the same group of employees.  In such circumstances, the Board has discretion to order that a vote be taken to determine whether there is majority support for certification.

The Board may also decide to order a vote where the trade union has not filed support cards from a majority of employees, and there is an allegation that the employer has improperly interfered in the organizing campaign.       

Q.        Can I operate my business in the usual manner during the certification process?

Generally speaking, it is anticipated that an employer will continue to operate the business as usual in the period leading up to the certification.  Indeed, this is true after certification as well, until the employer and the trade union have reached agreement concerning the terms and conditions of employment for the employees.

The reason for this “business as usual” standard is that, once a trade union seeks to obtain bargaining rights for the employees, any departure from the term and conditions of employment which were established before the union entered the picture may be perceived by employees either as a punishment for considering unionization or a demonstration of the power of the employer to reward them for not supporting the trade union.

Q.                Can I discipline employees during the certification process?

The advent of an organizing campaign does not mean that employees are excused from obeying the legitimate instructions of their employer and the ordinary rules of the workplace.  One of the most important principles embodied in The Trade Union Act, however, is that an employer will not be permitted to use the power to discipline employees as a disguise for taking punitive measures against employees because of their own activity in support of a trade union, or the trade union activity of other employees.

The importance of this principle is indicated by the fact that, in the case of severe disciplinary action – that is, the suspension or dismissal of an employee – The Trade Union Act places the responsibility on the employer rather than the trade union or the employees to prove that the discipline was not motivated, even in part, by anti-union sentiment on the part of the employer.

Though this principle applies at all times, the Board is particularly careful to examine cases of discipline which occur during the organizing campaign, or during the early days of the collective bargaining relationship.  This is because the Board has concluded that disciplinary action which is based on an improper motive can have significant effect on the ability of the trade union to gain the support of employees, or to represent them effectively.

Q.                What do I have to do once the union is certified?

Once the certification order has been issued, the trade union is the exclusive  representative of employees for the purpose of negotiating their terms and conditions of   employment.

The certification order places a legal obligation on the employer to bargain in good faith with the trade union.

Q.                What does “bargaining in good faith” mean?

Bargaining in good faith is an important concept, because it is used to describe the basic obligation which rests on employers and trade unions once they are legally bound by a certification order.  The obligation to bargain in good faith has a number of aspects.

·        It means that an employer must recognize the legal status of the trade union as the exclusive representative of employees in the bargaining unit in matters concerning their terms and conditions of employment.

·        It means that an employer must bargain with respect to these matters with the trade union and not directly with employees.

·        It means that an employer must communicate honestly to the trade union any information which will have a significant impact on the context in which bargaining occurs.

·        It means that an employer must meet with the trade union and make a serious and conscientious effort to conclude an agreement concerning the terms and conditions of employees.

·        It means that the employer must be ready to commit such an agreement to writing and to sign it.

·        It means that an employer must engage in sincere attempts to resolve disputes and grievances with the trade union.

One of the main objectives of The Trade Union Act is to encourage employers and trade unions to build vigorous and health bargaining relationships.  The Board has never interpreted this as meaning that the parties must strive at any particular outcome, or that they must bargain about specific issues.  The parties have a great deal of freedom to bargain about the issues which are meaningful to them, and to attach their own significance to them.

The Board is interested, however, in seeing that the parties are truly engaging in  bargaining and not just going through the motions, and that one party is not able to take unfair advantage of the other.  As the above comments about the duty to bargain in good  faith suggest, an employer is expected to engage in the process of bargaining fairly and sincerely, and not to attempt to undermine the position of the trade union by unfairly exploiting the advantages in terms of information and influence over employees which employers usually enjoy.

It is impossible to describe all of the situations in which a question might arise as to whether the employer has complied with the duty to bargain in good faith.  The comments made here are intended to suggest the general features an employer should keep in mind as they enter into a bargaining relationship with a trade union.

Q.                How can I obtain advice about dealing with my employees and the trade union during the period leading up to certification?

The Registrar of the Saskatchewan Labour Relations Board can provide general information about proceedings under The Trade Union Act.  The Registrar is not, however, able to provide specific advice about whether to take particular actions or how to respond to the actions of employees or trade unions.  The Board is an adjudicative body which must maintain a position of neutrality between employers and trade unions, and cannot become involved in advising the parties to particular situations which may ultimately come before the Board for determination.

If an employer requires advice about particular situations, or wishes to know in detail what the legal position of employers is, it is suggested that the employer should obtain the advice of a lawyer who has had experience representing employers in matters concerning industrial relations.

If you have any questions about the issues raised here, or any comments of this leaflet, please feel free to call the Registrar of the Labour Relations Board at (306)787-2406.