Collecting Evidence of Employee Support – How to decide between a Petition or Individual Decertification Forms.

In order for you or a group of your fellow Employees to Terminate the Union, you need to have Evidence that more than 40% of you working on the day you decide to file the Application no longer want to be unionized. There are generally two ways for you to gather this Evidence.

NOTE: if you setup your own online form with Adobe Sign – see next section below this section.

Option 1: You can have each Employee who no longer wants to be unionized sign an Individual Decertification Form. If using one of these Forms, you should have each Employee sign one Form. It is better that you do not request or ask Employees to sign such Forms while you are at work on paid time. If the people you work with want more privacy then the Individual Decertification Forms might be better than a Petition.

TIP: If you are using the Individual Decertification Forms, print one page and pre-fill in the Employer and Union name, (don't forget the Union Local number if there is one) before making copies. Then, when you cut the pages into three separate Forms, you have made sure everyone has the correct Employer and Union information. Don't pre-fill any more than the Union's name though and read more about Avoiding Mistakes on the next page. It is better that you do not use your Employer’s computer or printer when printing these documents off.

Option 2: You may get all the Employees who no longer want to be unionized to sign a Petition. This way, you have fewer documents as Evidence because you can have many names on one page. You may also have more than one page in the Petition. Sometimes Employees like to sign along with others. It may be easier to get more signatures this way. If you think that would be good, you may want to use a Petition. But with some Employees, privacy may be more important and some Employees may not sign a Petition because other Employees might or will see their name and signature. The Individual Decertification Form will be better to use instead for those individual employees.

The choice is yours in terms of going with option 1 or 2. Or you could use a combination of both types; Petition and Individual Decertification Forms.

Whether you use a Petition or the Individual Decertification Forms (or both) as Evidence, make sure you read our Avoiding Mistakes section that might help the Union and the Labour Board block your effort to become Union-free.

Online Individual Decertification Form

The Ontario Board allows a proper online Form for employees to sign to apply for a vote to remove a union.

If you setup Adobe Sign, LabourWatch developed a slightly different Individual Decertification Form. Adobe requires a Form to be verified by the Applicant for decertification. LabourWatch has not yet found that Adobe can work with a Petition that multiple employees could sign online.

Collecting Evidence of Employee Support – Cancellation of Union Membership or Application for Membership.

When you and a group of your fellow Employees no longer want a Union to represent you and you sign either a Petition or Individual Decertification Cards and then successfully Terminate the Union, there is the possibility that the Union may re-apply to unionize you again using your Union cards as Evidence that there is support for the Union.

Some Unions are applying right after Termination Applications file. Unions ask the Board to process their Application immediately if the Termination or Decertification wins. It looks like the Union does not need Employee permission to use old cards or other proof such as Union Dues. Unions have been delaying their approval of Application for Union Membership. Why?

Generally in Ontario Construction, employees must also be actual Union Members (in good standing) to sign a card to get rid of the Union, to be the Applicant, to vote.

Some Unions who delayed approval of Membership have quickly and quietly approved employees so that the Union can use the cards of just approved employees – without telling them – to ask the Board to unionize, on Union Cards, without a vote by having 55% or more on cards.

By explicitly Cancelling any Union Membership card with your name on it you prevent the Union from claiming you support the Union. This may seem odd, considering that you and your fellow Employees have just signed a Petition or a Decertification Card, but it is a necessary step to ensure that the Union cannot re-apply to unionize you without a vote right after the Decertification is successful. Unionization in Construction on cards alone is allowed in Ontario.

Use the Form titled Cancellation of Union Membership or Application for Membership along with the other signature gathering Forms to prevent this from being done by the Union.

General Mistakes

To succeed, you may have to show that your Employer wasn't involved in Terminating the Union in ways that are not allowed. So, you should make sure that:

• It was not your Employer's idea to start the Application.
• No one from Management offered anyone any reward or benefit for starting or continuing the Application.
• No one from Management threatened anyone, if they would not support the Application.
• You have not been led to believe your Application will be funded in whole or in part by your Employer.
• It is better to avoid using equipment at work such as computers, copiers and fax machines for your paperwork. It's a good idea that if you make copies at a store where you have to pay for them - keep all receipts as further proof that you did not use Employer equipment.

NOTE: You will not be filling in all the Forms you have received in the Download package. The Labour Board says that you must send the Union and your Employer some blank Labour Board Forms and Information Bulletins that are in our Download package. This means that you will have to make several copies of some of these Forms. In the case of the Information Bulletins you are going to make copies and never fill anything out on them at all.

Application Support Form Mistakes

Whether you and your supporters chose to sign Individual Decertification Forms or a Petition, it is important that each document have the full name of the Employer and the full name of the Union and Local (if applicable) on it because if this wording is not included on each document the Ontario Labour Board may not accept some or all of the signatures:

• Any Form that people sign to support the Application must have the wording that is at the top of the Petition. You cannot use a blank page of signatures and just attach it, the Labour Board will reject that. That is why the wording on our blank Petition is identical to the wording on our blank Individual Decertification Forms.
• Before gathering signatures, you must complete the section at the top of our Forms to include the full name of the Union and the Union’s Local, if there is one, as well as the full name of the Employer. The names of each on the Collective Agreement (if there is one) should be acceptable. If there is no Collective Agreement then look online or just ask the Employer and Union officials for their full name and contact information (without telling them why of course).
• It is always safer to approach and get interested Employees to sign the documents while both you and they are not on paid work time. This is not required by law but it is always better if it is possible. People who support your Application should sign an Individual Decertification Form or a Petition when they are not working or while Management is present - they should be on a break during work or do it before or after work. If the Employer knows you are gathering signatures on working time and does nothing to stop you, the Union might accuse the Employer of supporting the Decertification by "turning a blind eye" to your efforts.
• As well as signing, Employees have to print their name so that it is easy to read. This is a recommendation not a legal rule.
• Every person who signs support Evidence must write in the date while they are signing. You must not date it before they sign. Do not add it at a later time.
• If the Union has a Local number make sure to include it in the Union name on anything you send to the Labour Board, including support Forms.
• If you are using a Petition with multiple pages, number the pages that you use in the format of “page 1 of 5", then "page 2 of 5" and so on. If you have more than one page of the Petition in circulation this will become important.

Gather Proof of Work Performed on the Day of Application

It is common for the union to claim that you were not working, or that you were not doing Bargaining Unit work on the Day of Application. To handle this probability, it is important that you are able to prove that the people who signed for Termination or Decertification were actually working on the day that you file the Application. So gather evidence to oppose the Union claim that people were not doing such work. Examples of evidence that you can collect and present to the Board to refute the union's claims are:

• Photos of yourself (a “selfie”) at the location where you worked, both from the outside of the jobsite as well as the specific areas within the jobsite where you worked. If possible, include a newspaper with the date showing held in front of you in the “selfie”.
• Photos of any jobsite logs that you may sign in and out of. Note: it is especially important that you sign in AND out if this is a regular step.
• Send the photos to another Employee or Manager on the day you take them.
• If there is a Security Guard, Police, or other people at the jobsite such as a Site Supervisor, then make sure to interact with them a couple of times, both when you start and when you finish. You may need a statement from them.
• Copies of any parking passes or payments made while at the jobsite.
• Some smart phones have GPS location tracking features that track and store (for a while) where you were.
• Any other evidence you can find that proves that you were on the job on the Day of Application.

To the Labour Board:

The submission of the relevant forms is done using the A-108 Electronic Submissions Form. A sample of that form is included in this download, but due to the nature of the form, it is not a functional version in our download. You will need to click here to follow a link to the Labour Board website and download a copy for yourself. Note: the A-108 Form requires Adobe Reader 8 or higher to function. You may need to update your computer. For information on how to install Adobe Reader and configure your viewing environment please see http://www.adobe.com/go/pdf_forms_configure.

Note these instructions specifically from the Filing Guide regarding the A-108 Form; "Once you click the ‘Submit’ button, you will get a final reminder message to print or save your form. After proceeding you will get the following message: 'Your submission is in progress. Do not close the form until the submission is complete.' Do not close your form at this point or your submission will be interrupted. Wait until you get a confirmation that the submission is successful. After submitting the form, a confirmation message will be displayed on your computer screen and this confirmation message will be the indication of your successful submission. Following this, an email will be sent to the email address provided by you in the ‘File with the Board page, confirming that the OLRB has received your submission. This email will contain a confirmation number. If you do not receive an email confirmation within one hour, please contact the OLRB during business hours. The confirmation number in the confirmation email is not a Confirmation of Filing from the OLRB. This Confirmation of Filing will be sent to you from the OLRB with an OLRB File No.

If you use the A-108 to file with the Board, you will need to keep the originals of either the Petition or the Individual Decertification Forms you used to collect employee support signatures and submit copies using the A-108 to the Ontario Labour Relations Board. Do not send copies of either the Petition or the Individual Decertification Forms to either the union or your employer.

You can send your Decertification documents to the Labour Board by any means including using the A-108 or by hand delivery or Canada Post's Priority Courier service. You may not send your documents to the Labour Board by Registered Mail, e-mail or fax.

You must deliver or send the following documents to the Ontario Labour Board:

1. The completed Form A-77: Application for Termination of Bargaining Rights. See the note below regarding the Application Filing Date, which is paragraph 3 of the Application form. Send them the original. Don't forget to keep a copy for your records too.
2. "Evidence" - Individual Decertification Forms or Petition mentioned above (proving that the Employees do not wish to be represented by the Union) and the Cancellation of Union Membership or Application for Membership Forms (proving that the Employees don’t want to be unionized again). The Evidence must be in writing, signed by each Employee who no longer wishes to be represented by the Union and the date that the Employee's signature was obtained. (If you haven't yet, read the section above about our Forms and their use.) Put the full Union name in the proper space on all Evidence. Keep copies for yourself. The original Petition pages or Individual Decertification Forms go to the Labour Board.
3. A completed list of Employees who signed the Petition or Individual Decertification Forms and the Cancellation of Union Membership or Application for Membership Form, in alphabetical order (you can use the suggested Form for this that is on our website in the Download package - you do not use the Employer's Schedule C Form).
4. A completed Form A-80: Declaration Verifying Evidence of Employee Wishes (Form A-80), also keep a photocopy for your records.
5. Later - After you have delivered all of the required Forms to your Employer and the Union, you have to send the Labour Board one last Form, the A-81. Note that near the bottom of this Form, the Board says that if you use Canada Post Priority Courier Service you must include a copy of the receipt Canada Post gave you when you sent the documents to the Labour Board the first time. Keep the Original Courier Receipt and a copy of the A-81 for your records. Also, if you sent the documents to the employer via email you need to modify the Form A-81 as described below in the section titled “TO YOUR EMPLOYER”.

APPLICATION FILING DATE

• The Application Filing Date assigned to an application depends on the method used to file the application:
• (i) If the application is filed electronically using the Form A-108, the date of filing is the date on which the application was sent (the date recorded in the return e-mail which automatically generates upon successful e-mail submission)
• (ii) If the application is sent to the Board by Canada Post's Priority Courier service, the Application Filing Date is the date the application was accepted by Canada Post.
• (iii) If the application is sent to the Board by any method other than Canada Post's Priority Courier service or the Form A-108, the Application Filing Date is the date the Board actually receives the application.
• The applicant is required to set out the Application Filing Date in paragraph 3 of its application.

Our website has ALL of the Forms you need in one Download. The Labour Board website has some of the Forms, but not all and each one is a separate Download.

The Labour Board refers to the day that they receive your document package as the Application Filing Date. If you use Canada Post's Priority Courier service the Labour Board will count the Application Filing Date as the date that Canada Post accepted the documents from you. If you use any other courier service then they will count the date they actually receive your documents in their offices as the Application Filing Date. Keep any receipts for delivery.

Remember to keep a copy of everything you sent for your records. Here is where you have to send it:

Ontario Labour Relations Board
2nd Floor - 505 University Avenue
Toronto, ON M5G 2P1 - (416) 326-7500 - main phone number

To the Union:

The package you deliver to the Union must contain very specific documents and be in a very exact order. The Labour Board calls this the "Construction Termination Package (Union)".

You must deliver the Construction Termination Package (Union) no later than two days after the Application Filing Date, mentioned above. Deliver your Forms package to the most senior Union official responsible for your Bargaining Unit - likely the President of your Local. Generally your Steward will not be considered to be the "most senior" and unions have been known to fight Employee Decertifications on the technicality of who is and is not the "most senior".

You can deliver your Application and supporting documents to the Union by hand-delivery, Canada Post's Priority Courier Service or fax. Keep any proof of delivery that you can get from any Courier or fax machine.

You are required to deliver the following documents to the Union, remember that they must be in this order:

1. A completed Form A-77: Application for Termination of Bargaining Rights. Send them a photocopy because the original has to go somewhere else.
2. A completed Form C-34: Notice to Union of Application for Termination of Bargaining Rights Under Section 63 or 132 of the Act, Construction Industry. You just have to fill in page 1 with your Applicant's name, the full Union name (including the Local if there is one) and then date the Form on page 3. Send them the Original and keep a photocopy for your records.
3. A blank Form A-78: Response to Application for Termination of Bargaining Rights Under Section 63 or 132 of the Act, Construction Industry.
4. A copy of Information Bulletin No. 7 - Termination of Bargaining Rights in the Construction Industry Under Section 63 or 132 of the Act.
5. A copy of Information Bulletin No. 8 - Vote Arrangements in the Construction Industry.
6. A copy of Information Bulleting No. 10 - Status Disputes in Termination Applications in the Construction Industry.
7. A copy of Information Bulletin No. 32 - Resolving Disputes in Displacement and Termination Applications in the Construction Industry during the Construction Open Period; and
8. A copy of Part V of the Ontario Labour Board Rules of Procedure.

Yes, you really do have to provide copies of these Information Bulletins even though there is nothing you have to fill out on them. Our website has ALL of the Forms you need in one Download. The Labour Board website has the Forms too, but each one is a separate Download. They will also mail their blank Forms to you if you call them.

Click here to go to the Ontario Labour Board for MS Word versions of the Labour Board Forms.

To Your Employer:

The package you deliver to your Employer must contain very specific documents and be in a very exact order. The Labour Board calls this the "Construction Termination Package (Employer)".

You must deliver the Construction Termination Package (Employer) no later than two days after the Application Filing Date, mentioned above.

You can deliver your Application and supporting documents to your Employer by hand-delivery, Canada Post's Priority Courier Service or fax.

You can also deliver your Application and supporting documents to your Employer by email, but first you must get the employer contact to give consent for the documents to be sent by email. The steps to do this are described below.

To send the documents to the employer by email, first email the employer contact and in the email write “Do you consent to receive my notice of application for termination of bargaining rights by email?” and they should reply “Yes” to this email. Then, attach the documents you are sending to the employer to that same email in a reply.

Next, modify the A-81 form in section 3 to include this sentence:
”by email on consent on ____________ at_________ a.m./p.m. to the employer”

1. A completed Form A-77: Application for Termination of Bargaining Rights. Send them a photocopy because the original has to go somewhere else.
2. A completed for C-35: Notice to Employer of Application for Termination of Bargaining Rights Under Section 63 or 132 of the Act, Construction Industry. You just have to fill in page 1 with your Applicant's name, the full Union name (Including the Local if there is one) and then date the Form on page 3. Send them the original and keep a photocopy for your records.
3. A blank Form A-79: Intervention in Application for Termination of Bargaining Rights Under Section 63 or 132 of the Act, Construction Industry;
4. A blank Form A-124: Confirmation of Posting;
5. A blank Schedule C, Construction Industry and Instructions: list of Employees for your Employer to fill in;
6. A copy of Information Bulletin No. 7 - Termination of Bargaining Rights in the Construction Industry Under Section 63 or 132 of the Act;
7. A copy of Information Bulletin No. 8 - Vote Arrangements in the Construction Industry;
8. A copy of Information Bulletin No. 10 - Status Disputes In Termination Applications in the Construction Industry; and
9. A copy of Information Bulletin No. 32 - Resolving Disputes in Displacement and Termination Applications in the Construction Industry during the Construction Open Period; and
10. A copy of Part V of the Labour Board's Rules of Procedure.

Yes, you really do have to provide copies of these Information Bulletins even though there is nothing you have to fill out on them. Our website has ALL of the Forms you need in one Download. The Labour Board website has the Forms too, but each one is a separate Download. They will also mail their Forms if you call them.

Click here to go to the Ontario Labour Board for MS Word versions of the Labour Board Forms.

You must file the above first with the Labour Board and then within 2 days you must deliver everything else to the Union and your Employer. The Labour Board calls the date you deliver your package to them the Application Filing Date. Remember, if you use Canada Post Priority Courier Service then the Application Filing Date is the date on which Canada Post accepts the delivery from you. If you use any other means of delivery, then the Application Filing Date is the date the Labour Board actually receives your delivery.

NOTE: We strongly recommend you take no chances and, if filing times are close, make sure the Labour Board gets their documents from you BEFORE 5 pm Eastern time, when the Labour Board officially closes. Any documents received after 5 pm Eastern time are considered to have been received on the next business day that the Labour Board is open. People may say you have until midnight, but the Board closes at 5:00pm. A fax received by the Labour Board after 5:00pm is considered to have been received on the next business day.

A Final Word on Delivering Your Documents

A Construction Industry Termination Application of a Voluntary Recognition must be filed with the Labour Board before the packages are sent to the Union and the Employer. The day that the Application is filed is called the "Application Filing Date". Only those Employees performing work in the Bargaining Unit affected by the Application on the Application Filing Date will count for the purposes of the Termination Application. So, it is important to decide on exactly what date you will file your Application with the Labour Board Once you have delivered the required documentation to the Union and to the Employer you must complete and file a Form A-81 (Certificate of Delivery). If you sent the Labour Board the Application and supporting documents by Canada Post Priority Courier you will need to include a copy of the receipt to go with the Form A-81. It is recommended that you keep a detailed summary of the work performed by each Employee for the entire day on which the Application is filed with the Labour Board.

You May Have To Make A Response

Once the Labour Board has received your Application it will issue a Decision. In that Decision the Labour Board spells out some rules for the next steps. If the union or the Employer makes a claim that you do not agree with, you may have to make a Response too. Also, there is a timeline associated with your Response. More information on both the Response from you and the timeline is explained below.

What Might The Union Claim?

In its Response using Form A-78, it is not uncommon for a union to dispute the status of the Applicant and/or other members of the Bargaining Unit. Typical claims are that the Applicant and/or others are not members of the Bargaining Unit or that the Applicant and/or others were not performing Bargaining Unit work on the day of the Application. The union claim may rely on the definition of the Bargaining Unit scope and the nature of the work being performed on the day of the Application. As such, your Response to the union claim will require a description from you of work you were performing on the day you submitted the Application.

In its Information Bulletin No. 32 the Board indicates what a Status Dispute typically is:

“Status disputes” typically involve a disagreement as to whether certain individuals:

• were employed by the Employer on the application date;
• performed bargaining unit work for a majority of their time on the application date;
• exercised managerial functions; or
• were dependent or independent contractors.

When Should You Respond?

The Board has given the timelines that are to be followed in its Information Bulletin No. 32:

Status Disputes:

• Vote plus 10 days to question status: "Submissions must be filed with the Board, with a copy to all other parties, no later than ten days after the vote."
• Further 7 days to respond: "A response to the first set of submissions may do so within a further seven days."
• Requests for documents; ask in 5 days, respond in another 5 days: "Each party must advise the other party within five days of the receipt of the other party’s last submission, of all the documents it seeks to have produced. The other party is required to respond as fully and completely as possible within five days of receiving the request."

How Should You Respond?

When the Board issues its Decision to say that an Application has been made, it typically gives the format for a Response to a Status Dispute. Below is a paragraph copied from a prior Decision:

"Submissions
Each party must within 10 days of the representation vote make their submissions about all status disputes, and deliver those submissions to the other parties and file them with the Board. Each party challenging the status of a person must set out its reasons why it disputes that person’s right to cast a ballot, and must include all the facts in it possession at that time on which it relies in support of that dispute. Any party that asserts that the individual in question was entitled to cast a ballot, shall set out all of the facts on which it relies, including but not limited to:

• (a) precisely where the person was working on the date of application;
• (b) what work they were doing on that day;
• (c) the terms and conditions of the performance of the work (hourly, piecework, etc.);
• (d) when they were first employed by the responding party and how they came to be so employed (referral, direct hire, etc.); and
• (e) any other relevant facts of which the party is aware and on which it relies."

We recommend making your Response in this exact format. Use the paragraphs a) to e) as your guide, making each a header that you respond to with as much detail as you can offer.

Is That It?

You may have to make further Responses, and those might vary based on your particular case.

The Board will try to arrive at a conclusion based on your written Response as well as the Responses of the other Parties. This is preferred rather than actually holding a Hearing. Although a Hearing is scheduled once the Application is made, the Board will try to come to a Decision before that Hearing and then not conduct the Hearing at all.