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CLV Special Report - Recent Developments in Union Certification and Decertification:
An Employer's Guide to the Acquisition and Termination of Bargaining Rights in Ontario
By: Matthew L.O. Certosimo, LL.B., C.S. (Labour Law), Michael P. Fitzgibbon, LL.B.
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This Special Report highlights the dramatic and far-reaching changes that have taken place in the way bargaining units are certified and decertified in Ontario. Changes in legislation have addressed several employer demands and created a new regime for organizing workplaces, displacing unions and decertifying bargaining units. An analysis of the decision in the recent Baron Metal Industries case outlines just how far the Labour Relations Board’s powers have changed and how its authority will be applied in the future. This Special Report leads the reader, step-by-step, through the certification process from the initial application to the vote and the post-vote litigation. And while the employer is not required to stand by during a unionization drive, the range of acceptable responses is strictly limited. For employers in this situation, a detailed list of “Dos and Don’ts” will guide management in what actions are legal and which might attract an unfair labour relations practice allegation. Table of Contents • Introduction • The Acquisition of Bargaining Rights • Methods of Acquiring Bargaining Rights • Threshold Issues • Unfair Labour Practices • Anti-Union Effect • Anti-Union Intent • Employer Free Speech versus “Business as Before” • Remedies Post “Wal-Mart” • Employer “Dos” • Employer “Don’ts” • The Termination of Bargaining Units • Conclusion • Endnotes • Appendices.
About the Author
Matthew L.O. Certosimo, LL.B., C.S. (Labour Law) is a partner and the National Practice Group Leader of the Labour and Employment Group of Borden Ladner Gervais LLP (Toronto office). He advises and acts on behalf of private and public sector employers in labour relations, grievance arbitration and employment law matters. He also represents employers and employees in wrongful dismissal actions and in employment-related litigation. Mr. Certosimo is the Editor-in-Chief of Executive Employment. He has also written on employment law for many publications. Mr. Certosimo was an adjunct professor of Employment and Labour Law at Woodsworth College, University of Toronto, and in 2003 was an Adjunct Professor of the University of Western Ontario Law School. He is the co-author for Just Cause: The Law of Summary Dismissal in Canada (Canada Law Book), Editor-in-Chief of Executive Employment (Federated Press) and Assistant editor, Canadian Cases on Employment Law – a national law report series (Carswell). Recognized in Chambers Global, Chambers Canada, The Best Lawyers in Canada, the Legal 500 Canada, and The Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada for Employment Law and Labour Law. E-mail:
Michael P. Fitzgibbon, LL.B., is a partner in the Labour and Employment Law Group of Borden Ladner Gervais LLP. He practises exclusively in the area of management-side labour relations and employment law, and has extensive experience in the representation of employers before the Ontario Labour Relations Board, consensual grievance arbitrators and arbitration boards under collective agreements, the courts and other administrative tribunals. He also regularly acts as company spokesperson in collective bargaining negotiations. He is a graduate of Queen’s University Faculty of Law and McGill University, where he received a B.A. in Industrial Relations. He teaches Employment Law at Woodsworth College, University of Toronto, and is a frequent panelist, lecturer and author on numerous papers and articles on a variety of labour relations and employment law topics. Mr. Fitzgibbon is the co-author of Carswell’s CLV Special Report - Understanding Ontario's Employment Standards Act, 2000, and CLV Special Report - Recent Developments in Union Certification and Decertification: An Employer’s Guide to the Acquisition and Termination of Bargaining Rights in Ontario.
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