Collective Bargaining / Certification

Once a union has acquired bargaining rights for a group of employees, the next step is to negotiate a collective agreement with the employer. This agreement sets out in writing the terms and conditions of employment in the workplace, including the hours of work and rates of pay. The Labour Relations Act establishes the framework and timelines governing this negotiation process.

After the Board issues a certificate to the union, there is a 90-day period during which the union may not strike, and the employer may not lock out employees. During this period, the employer is also prohibited from changing any of the terms and conditions of employment, including wage rates, unless the union agrees or the employer obtains the permission of the Board.

This period may be extended for an additional 90 days if either party applies to the Board before the original time limit expires.

The employer and the union are required to negotiate an agreement that sets out the specific terms of how and when union representatives may access the employer's workplace to communicate with employees about any matters covered by The Labour Relations Act or the collective agreement. The Board can assist the parties by appointing a representative to help the parties reach an agreement. If the parties are unable to agree on the terms of an access agreement, either party may apply to the Board to settle the dispute.

All parties to collective bargaining, including those negotiating a first collective agreement, must consider whether an Essential Service Agreement (ESA) is required. As a collective agreement approaches expiry, the parties must determine whether essential services need to be maintained and they must file that determination with the Board at least 180 days before the agreement expires. If the parties agree an ESA is needed, they must file the ESA with the Board no later than 90 days before the expiry of the collective agreement.

The collective bargaining process begins when either the union or the employer provides written notice the other party of its intent to bargain. Notice to bargain a first collective agreement may be given at any time after certification. Once a first collective agreement is reached, it may include provisions specifying the timing for notice to bargain in subsequent rounds of bargaining. If the collective agreement does not set out a notice period, notice to bargain must be given no more than 90 days and no less than 30 days before the expiry of the collective agreement in effect.

The union may request certain information from the employer after it has acquired bargaining rights, including:

• details on the job title or classification of each employee
• their rate of pay
• the cost of their benefits they receive

The employer must provide the requested information within twenty-one calendar days of the request, unless the employer applies to the Board within that period and is granted an extension of time. An employer's failure to provide the information constitutes an unfair labour practice. While a collective agreement remains in effect, the union may make a subsequent request for information after one year has elapsed since the previous request.

After notice to bargain has been given, the union and the employer are required to meet and commence bargaining within 10 days, or within any other time period agreed by the parties. Both parties must bargain in good faith and make every reasonable effort to conclude a new, renewed or revised collective agreement. If the parties run into difficulties during bargaining, either party may request that the Board appoint a conciliator to assist them. The cost of the conciliator is shared equally.

A party that bargains in bad faith commits an unfair labour practice.

Once the employer and union reach a tentative agreement, the employees must vote on whether to ratify (approve) the agreement within 30 days. All employees covered by the collective agreement (or in the construction field, all union members who work in the craft) must be given reasonable notice of the vote and an opportunity to cast a secret ballot on whether to accept or reject the collective agreement.

If a majority of voters approve the agreement, it becomes binding on the employer, the union and every employee in the bargaining unit. If a majority of voters do not approve the agreement, the employer and union must continue to bargain.

A union may not declare a strike unless it has conducted a strike vote and a majority of the employees in the bargaining unit who vote are in favour of a strike. A vote in favour of a strike authorizes the union to declare a strike if it determines that doing so is necessary. However, a union is not required to declare a strike if an agreement with the employer can be reached. The strike vote must be conducted by secret ballot, and employees must be given reasonable notice of the vote.

An employee may apply to the Board if they believe the strike vote was not conducted in accordance with the Act.

If the Minister determines that it is in the public interest to give employees an opportunity to accept or reject the employer's last offer before a strike or lockout begins, the Minister may order that a final offer vote be held immediately. When the Minister orders the vote, the Board is responsible for conducting the final offer vote.

If a majority of voters approve the employer's last offer, it becomes a binding collective agreement between the employer, the union and every employee in the bargaining unit. If a majority of voters reject the final offer, the strike or lockout may proceed.

When the employer and union are unable to reach a collective agreement, job action may occur. A strike is a stoppage or slowdown of work by a group of employees. A lockout is a temporary closure of a workplace or a suspension of work initiated by an employer.

Strikes and lockouts are lawful after a collective agreement has expired and the union and the employer have complied with the requirements in the Act to engage in a legal strike or lockout. These requirements include, where applicable, having an Essential Services Agreement (ESA) in place. The union may not authorize or declare a strike unless it has had a strike vote and the majority of those voting have supported a strike mandate.

Where an ESA is in effect, the parties must give 72 hours' notice before commencing a strike or lockout. In some collective agreements, the parties have agreed to provide each other advance notice of a strike or lockout. Where an ESA is not required and the collective agreement does not require advance notice of a strike or lockout, there is no general statutory requirement for either party to give notice.

During a strike or lockout, employees may only work in accordance with the ESA.

In most cases, a strike or lockout ends when the employer and the union enter into a new collective agreement.

Employers, or anyone acting on their behalf, are not allowed to hire replacement workers or professional strike breakers. An employer may not assign bargaining unit work to individuals who are not on strike or lockout unless the individual primarily performs managerial functions or is employed in a confidential capacity relating to labour relations. An employer may continue to use a person who has been doing the same or similar work as bargaining unit employees during a strike or lockout, but only to the extent that the person was performing that work before the job action began.

An employer who uses replacement workers in breach of the Act commits an unfair labour practice.

When a union and an employer are negotiating their first collective agreement, there is a process available to settle the dispute without the need for a strike or lockout. Once the following conditions are met, either party may apply to the Board to settle the collective agreement:

• notice to bargain must have been given
• a conciliator has been appointed by the Board, or the parties have jointly agreed on a person to assist them in concluding an agreement
• the conciliator, or the agreed-upon person, has informed the Board that the parties are unlikely to conclude a collective agreement, or 120 days have elapsed since the appointment of the conciliator
• at least 90 days have passed since the certification of the bargaining unit, or any extension of the freeze on the terms and conditions of employment has expired

When the Board receives an application to settle a first collective agreement, it notifies the other party, schedules a hearing and appoints representatives to assist in continuing collective bargaining. If the parties remain unable to reach a collective agreement, the Board will hold a hearing within 60 days of the application and decide the terms of a collective agreement that will be for one-year term.

When the parties are engaged in a legal strike or lockout, either the employer or the union may apply to the Board to end the strike or lockout and settle the collective agreement if the following conditions have been met:

• the strike or lockout has lasted at least 60 days
• the parties have attempted to conclude a collective agreement with the assistance of a conciliator for at least 30 days during the strike or lockout

If the Board determines that both parties are bargaining in good faith but are unlikely to reach an agreement within 30 days, it may direct that the strike or lockout be terminated and order that the terms of a new collective agreement be settled by the Board or by an arbitrator.

This explains how the Manitoba Labour Board (the “Board”) certifies a union to represent a defined group of employees as the certified bargaining agent.

The Labour Relations Act (the “Act”) sets out a process for a union to be certified as the representative of a group of employees. If successful, the union becomes the exclusive bargaining agent and will represent those workers in the workplace.

The Board has jurisdiction to certify employees of a provincially regulated business. If a union wants to be certified to represent federally regulated employees, the application must be made to one of the federal boards.

To be certified, a union must file an application with the Board that shows they have enough employees that wish to be represented.

The Board is responsible for the process of certifying a union. It will conduct any votes that are necessary and settle any disputes between employees, employers and the union about the certification process.

An employer can agree to recognize a union as the bargaining agent for a group of its employees without the union having to be certified by the Board. The bargaining rights are confirmed by the ratification of a collective agreement. This is called a voluntary recognition of the union.

Understanding Unions

A union is an organization of employees formed to negotiate terms and conditions of employment (a collective agreement) with the employer. The union then represents all the employees in the unit in disputes about how the collective agreement is interpreted.

A union can apply to be certified by the Board to represent all or some of the employees of an employer, and may be composed of only one employee. Once certified or voluntarily recognized, the union becomes the bargaining agent for the employees in the bargaining unit described on the certificate or in the collective agreement.

The Certification Process: Overview

Timeline for an application to be certified

1. Union Organizing: The union obtains signed membership cards from employees who wish to be represented. This is commonly called an organizing drive.
2. Application Filing: The union submits the application to the Board with support evidence (cards).
3. Notice: The Board notifies the employer and employees in the unit of the application. Notice to the employees is posted in the workplace and/or sent to all affected employees.
4. Employer Return: The employer must file information about the applied-for group of employees with the Board within two days of receiving notice.
5. Employee Objections: Within two days of the notice, employees may file objections to the way the union conducted the organizing drive. These objections are then shared with the employer and the union.
6. Union Response: The union may file a response to the employer's information regarding the employees in the unit.
7. Board Determinations: The Board will consider the material filed by the union and the employer and determine if a representation vote is required.
8. Automatic certification: The Board will certify the bargaining unit without a vote if a majority of employees sign cards in favour of the union.
9. Representation Vote (if required): A planning meeting between the union, the employer and the Board representative will be held to plan a vote. The vote should be conducted within seven days of application. Votes may be conducted electronically, in person or by mail.
10. Hearing: If any dispute between the union and the employer regarding the application remains outstanding, the Board will schedule and conduct a hearing and make any decisions necessary.
11. Board Decision: The Board will issue a certificate or a dismissal order once it has decided the matter.

Restrictions on changing working conditions:

During the certification process, an employer must not make any changes to wage rates or other working conditions without approval from the Board.

Before Applying: Union Formation and Organization

Summary: Employees can either join an existing union or form a new one. While organizing, unions must tell potential members about any initiation fees or dues they'll need to pay.

Choosing a Union

The choice to join a union is made by the employees in the unit. If a group of employees wishes to be represented, they may start an organizing drive to solicit support for the union. Employees can choose to join an established union, or they can form a new union or association. A newly created union must file some additional documents before it may file the certification. Contact the Board for more details.

Organizing Drive

A union cannot threaten an employee with a penalty, or use intimidation, fraud or coercion when asking employees if they wish to join. It must inform employees about the amounts it will collect as initiation fees and membership dues.

When a Union Can Apply for Certification

If a group of employees is not already represented by a union, an application to certify can be made at any time. There are time restrictions on when an application by another union can be made to replace (or displace) the current union depending on the status of the collective agreement. Contact the Board for more details.

The union must show that it has reached the support threshold on the date the application is filed.

Bargaining Unit Description

When applying for certification, the union must propose a bargaining unit description that is appropriate for collective bargaining. The union will need to garner the support of enough employees in that proposed bargaining unit to be certified.

Support Levels Required

The first step for the union is to obtain signed membership cards from employees in the proposed bargaining unit indicating that they wish to have the union represent them. Employees can change their minds, but unless they take reasonable steps to withdraw their support before an application is filed, they will be counted as supporting the application.

The Board's actions depend on the level of support shown:

• More than 50% support: The Board must certify the union automatically without a vote.
• Between 40-50% support: The Board will conduct a secret ballot vote.
• Less than 40% support: The application will be dismissed.

How to Apply

An application for certification must be filed with the Board by email (MLBRegistrar@gov.mb.ca) or delivered to the Board's offices. An application can be filed anytime during the Board's regular business hours. Applications received when the Board is closed will be considered filed on the next business day. The application date is crucial as the Board assesses union membership support as of the filing date.

The application must include:

• contact information for the union and the employer, as well as a completed and witnessed statutory declaration on Form A
• Form I: Application for Certification:
  • a description of the proposed bargaining unit
  • the estimated number of employees in the proposed unit and the number of employees who support the application
  • whether or not there are any other unions in the workplace
• the union's membership evidence (cards)
• List L, which lists in alphabetical order the names, addresses and classification of each employee that the union says supports the application

The Board will not accept an application if any of this required information is missing.

Processing the Application

After receiving a completed application, the Board will:

• Notify the employer of the application and direct the employer to file its return. The employer's return must be filed no later than two days after the notice is provided.
• Post a notice to the affected employees in the workplace and advise the employees of their right to raise issues about the conduct of the organizing drive. If there is not a suitable location to post the Notice, the Board may mail or email it to the affected employees using contact information provided by the employer.
• Notify any other union that may have interest in the application.
• Schedule a planning meeting to arrange a vote, if necessary. If the Board requires a vote, it is normally conducted within seven business days of the application.
• Schedule a hearing to determine any outstanding issues. The hearing may be cancelled if there are no outstanding issues.

Return, Response and Objections

After a union applies for certification, the employer must respond quickly with employee information. Employees who object to the way the union gathered support must file those objections quickly including specific details why they object.

Employee Objections

Any employee in the proposed unit may object to the way in which the union gathered support. A properly filed objection should allege that the union or its representatives:

• used threats to influence someone's actions (Intimidation)
• forced someone to do something against their will (Coercion)
• expressed intention to harm or punish (Threats)
• improperly persuaded someone through a position of power (Undue influence)
• provided false or misleading information (Misrepresentation)
• failed to provide information regarding fees, the collection of dues or what can reasonably be expected to be payable

Employee objections must be filed no later than two days after the notice of the application has been posted in the workplace, and must be filed with a witnessed Form A. Employees should contact the Board officer if they have questions about objections. The Board officer's contact information will be posted on the notice. All objections are provided to the employer and the union for their comment.

Employer Return

The employer must file its Return no later than two days after it receives notice of the application. The Return includes a list of the employees in the proposed unit as of the date of the application, any requests for exclusion or claims of an inappropriate unit, and documentary evidence to verify the information in the application. The employer also has an opportunity to respond to the Board with comments on the proposed bargaining unit or job classifications or positions that it believes should be included or excluded.

Union Response

Parts of the employer's return are provided to the union, who may respond to any concerns it has with the information provided by the employer. The Board does not provide contact information for the employees to the union.

Once the parties have filed their documents, they are put before the Board for its consideration. At this stage, the Board can determine:

• if the union has the support needed to be certified
• if it will order a vote and therefore require the planning meeting
• whether there are issues that require the Board to conduct a hearing before it issues a dismissal or a certificate

The Board can also issue an interim certificate if it believes there are technical issues to be resolved that do not affect the union's right to be certified.

Certification Hearings

The Board may need to conduct a hearing to settle any outstanding dispute between the parties. Common issues that may require a hearing are:

• whether the proposed unit is an appropriate bargaining unit
• requested amendments to the bargaining unit description
• determining the timeliness of the application
• the inclusion or exclusion of specific classifications, including whether a person is an employee under the Act (i.e. management or confidential exclusions)

Participation Rights

The employer's participation in certification hearings is limited to providing information about:

• the appropriateness of the bargaining unit
• matters related to conducting a representation vote

The employer cannot participate in determining whether employees wish to have union representation.

Intervenors

When a certification application is received, the Board notifies any union that may already represent affected employees. If such a union believes the application affects employees it represents, it can file:

• Form V: Notice of Intervention
• a competing application claiming to be the rightful bargaining agent

If a union can show that it has between 40-50% employees support, the Board will order and conduct a secret ballot vote to determine the wishes of the employees. Votes must be conducted fairly, and both employers and unions are prohibited from campaigning on voting day.

A representation vote is not required if the Board is satisfied that more than 50% of the employees in the applied-for bargaining unit wish to be represented by the union. The Board will automatically issue either an interim or final certificate in these cases.

If the application is seeking to replace or displace one union with another union, a representation vote will be conducted to provide employees the option of selecting the union they wish to represent them.

The Board may also order a vote if there are outstanding questions that may affect the support level. The Board will conduct the vote and “seal” individual ballots, along with the ballot box, until those questions are determined. Often, sealed ballot boxes are never counted.

Voting Processes

Where the Board has determined that a certification vote will be conducted, a planning meeting between the employer and the union will be scheduled promptly to set the date, time and method of the vote. At the planning meeting, the Board will settle the list of eligible voters and will discuss if there are any contested voters who will have their ballot sealed pending future decisions of the Board. The parties will discuss if the vote should be conducted in person, by mail, or by way of electronic voting. The board officer may also assist the parties in coming to an agreement on any outstanding issues.

The vote should occur within seven days of the application, with rare exceptions. Employees will be notified of the date, time and method of the vote by a Notice of Election posted in the workplace by the Board, or in some cases, mailed or emailed to employees.

Voting

The Board may conduct votes in one of three ways: in person, electronically or by mail. The Board provides instruction to eligible voters on the process to cast their ballot. The Board officer will be available to answer any questions. The Board's process ensures that a fair and secret election can occur.

Prohibited Election Day Activities

On voting day, an unfair labour practice will have been committed (an action by an employer or union that violates the Act) if an employer, union, or their representative engages in any of the following activities at the workplace or polling location:

• distributing printed material to influence the vote
• engaging in electioneering

Fair Vote Certificate

The Board requires a representative of the union and the employer to sign a fair vote certificate after the poll closes. It confirms that the parties are satisfied that the vote was conducted in a fair and proper manner.

If either the union or the employer refuses to sign a fair vote certificate, they must explain their concerns in writing to the Board and the ballot box will be sealed until the Board orders that it be counted.

Once a union is certified, it becomes the exclusive representative for all employees in the bargaining unit. The employer must then negotiate with this union. Certification remains in effect until the union is decertified or replaced.

Certification Decision

The Board certifies a union as the bargaining agent when:

• more than 50% of the employees in the proposed unit support the union (automatic certification without a vote); or
• a majority of those who voted in a representation vote support the union

The Board dismisses an application when:

• fewer than 40% of the employees in the proposed unit support the union; or
• 50% or fewer of those who voted in favour of the union

After a certificate is issued, an employer can not make any changes to wage rates or other working conditions without approval from the Board or the union for a period of 90 days. This period can be extended for a further 90 days by application to the Board.

Cancellation of a Certificate or Termination of Bargaining Rights

Unions have the right to negotiate with an employer in two ways:

1. the employer voluntarily recognizes the union and the union and the employer ratify a collective agreement
2. the Manitoba Labour Board (the “Board”) issues a certificate, certifying a union to represent a group of the employer's employees

The Labour Relations Act (the “Act”) allows for employees who no longer wish to be unionized to apply to cancel a certificate or to terminate bargaining rights (if the union was voluntarily recognized). The Act outlines when an application may be filed and the process the Board will use to make decisions about it. If an application is successful, the union will lose the right to represent those employees, and the collective agreement will no longer be in force.

Role of the Manitoba Labour Board

The Board receives, processes and decides if an application for cancellation of certificates or termination of bargaining rights is granted.

Eligibility and Timelines

There are restrictions on when an application can be filed. These restrictions depend on several factors, including when the bargaining unit was certified, if there is a collective agreement, and the term of the collective agreement.

Collective agreement of 18 months or less

If a collective agreement is in force for 18 months or less, an application can only be filed in the three months before the last three months of the collective agreement.

For example, if a collective agreement is in force for 12 months from January 1 to December 31, an application can only be filed in July, August and September.

Collective agreement of greater than 18 months

When there is a collective agreement in force for longer than 18 months, an application can only be filed in the three months before any anniversary date that the collective agreement became effective or in the three months before the last three months of the collective agreement.

For example, if a collective agreement is in force for 48 months (4 years), an application can be filed in:

Year One - Months 10, 11 and 12
Year Two - Months 22, 23 and 24
Year Three - Months 34, 35 and 36
Year Four - Months 43, 44 and 45

New bargaining units

When a new bargaining unit is certified and before the employer and the union negotiate a collective agreement, an application cannot be filed in the 12 months after the certificate was issued. Once the parties agree to a collective agreement, the time frames listed above will apply.

If the parties are unable to negotiate a collective agreement, they can apply to the Board to have a collective agreement imposed for one year. If the Board imposes a collective agreement, an application cannot be filed during the term of that imposed collective agreement.

Collective agreement has expired

There are specific rules surrounding an application when a collective agreement has expired or has been terminated. Contact the Board to discuss specifics of the situation.

Strikes and lockouts

No application can be filed during the first six months of any legal strike or lockout.

Exceptional cases

If the Board is satisfied that the employees in a bargaining unit, or their employer, would suffer substantial and irremediable damage or loss, the Board may consider an application at any time.

Application Process

An applicant who wishes to cancel a certificate or terminate the bargaining rights of a union must file an application with the Board. If the applicant is a group of employees employed in the bargaining unit, they should select one individual to represent them at the Board.

Before filing an application, the applicant should know:

1. Is there a collective agreement in effect?
   • When did it come into effect?
   • When does it expire?
2. Has the Board issued a certificate to the union?
   • What is the certificate number?
   • When was the certificate issued?
3. How many employees are in the bargaining unit?

If there is uncertainty about the existence of a certificate, the current certificate can be requested from the Board by email at mlb@gov.mb.ca.

An application consists of four parts:

1. Application Form
2. Statutory Declaration (Form “A”)
3. Alphabetical list of each employee in the bargaining unit who supports the Application
4. Proof of support

The Application Form

The Application Form is found on the Board's website. It requires information about the number of employees in the bargaining unit, the bargaining unit description, as well as the expiry date of the collective agreement and the certificate number if the Board has issued a certificate.

The Statutory Declaration (Form A)

Form A is required on all applications filed with the Board. It includes an oath that must be administered by a Commissioner of Oaths or a Notary. An applicant can contact the Board for assistance in having the oath sworn. Form A also provides the Board with the contact information for the Applicant, the employer and the union. By providing an email address, the Applicant grants permission for the Board to contact them via email.

The Alphabetical List

The Applicant must provide a list, in alphabetical order, of all the employees who support the Application. The list must be legible and show the name and address of each employee who supports the Application.

Proof of Support

The Board requires documentary proof that each individual on the alphabetical list supports the application. In addition, the Board will want to confirm that the individuals have elected the Applicant as their representative.

The proof can take many forms. The Board has accepted Individual Letters of Support signed and dated by both a witness and the supporting employee as proof.

An Applicant should be aware of section 33(2) of the Act, which states:

Disruption of Operations

33(2) Nothing in this Part authorizes any person to disrupt the ongoing operation of an employer's workplace by attempting, during the working hours of an employee at the workplace, to persuade the employee

a) to become, or continue to be; or
b) to refrain from becoming or continuing to be;

a member of a union.

Board Determination Process

The Board advises the employer and the union of the application. The employer is required to file a nominal roll that includes the names, addresses and classifications of every employee in the bargaining unit. The employer will have two business days to file the nominal roll.

The employer's role in the application is limited to providing the names of the employees in the bargaining unit and providing information to the Board for scheduling a vote if it is necessary. The decision to have a union represent a bargaining unit is a decision made by the employees in that unit.

The union has seven business days to file a reply to the application. In its reply, the union may indicate whether it opposes the application and raise any issues it may have with the filing of the application. The union may also advise that it does not wish for the Board to conduct a vote because it is not contesting the application.

Representation Votes

When the Board orders that a representation vote be conducted, a Board officer will act as the returning officer to conduct the vote. The Board officer will schedule a planning meeting with the applicant, the employer and the union to set the date, time and location, to decide if the vote will be conducted in person, electronically or by mail, and to finalize the voters list. Any disputes, including those about voter eligibility, will be settled by the Board after a hearing.

Following the planning meeting a Notice of Election will be posted in the workplace where the employees affected by the vote will see it. In some cases, the Notice of Election may be either mailed or emailed to the voters.

Implications of Cancellation or Termination

If the Board grants the application, it will issue an order cancelling the certificate or terminating the bargaining rights of the union. When this occurs, the following apply:

• The union no longer has bargaining rights with the employer.
• Any collective agreement between the union and the employer will no longer apply.
• The employees are no longer represented by the union for collective bargaining purposes.

If the Board dismisses the application, the union retains its bargaining rights, and any existing collective agreement remains in force.