NL LABOUR RELATIONS BOARD - NOTICE COVID-19 OPERATIONS

Effective March 17, 2020, the Labour Relations Board has been operating on a remote basis due to the COVID19 pandemic. This was based upon direction from government and it is consistent with protecting the health and safety of our staff, our stakeholders and the general public.

All Board staff are working remotely until further notice. The normal operations of the Board are continuing and all statutory timelines and all Board timelines remain in place. Certain measures however have been taken by the Board during this time period.

FILING OF DOCUMENTS

The Board will continue to accept filings electronically when possible to do so; these filings should be emailed to GlennBranton@gov.nl.ca and WhitneyManstan@gov.nl.ca . Original copies of email filings should be kept so that they can be sent to the Board upon request at a later date. The Board may require filings to be provided in hard copy which will be assessed on an individual basis. Parties will be notified directly by a Board Officer should this be required. The need for routine filings with the Board to be verified by way of affidavit or statutory declaration pursuant to Section 5 of the Board’s Rules of Procedure is temporarily relaxed. The Board will request that affidavits or statutory declarations for these email filings be provided at a later date. For the execution of documents under Section 135 of the Labour Relations Act, or any comparable provision of another statute, the Board will receive such unsigned documents electronically subject to appropriate signing at the earliest possible subsequent date.

In its December 2020 Notice, the Board stated:

”No in-person votes will be conducted by the Board until further notice. Mail-in ballots for the purpose of voting may be ordered by the Board, as needed. The Board will be examining options for electronic/telephone voting during this time period and further information in terms of that will be provided, as needed."

Our understanding is that electronic/telephone voting is not an option and votes will be conducted by mail-in ballot.

Overview

Decertification basically means getting rid of a union. It happens when a majority of employees no longer support the union or don't want the union to represent them. If you can prove this you may be able to decertify the union. But, there are a few rules you need to follow.

Using our step-by-step instructions, you should be able to apply to decertify your union. If you need help, go to our "Contacts" pages and get in touch with someone listed there. By the way, others may call decertification "revocation of bargaining rights" or "termination of bargaining rights."

Timing your Decertification

You can only apply to decertify the union during an open time period. Also, unless the Newfoundland and Labrador Labour Relations Board agrees, you cannot apply during a legal strike or lockout.

The open time periods are:

• 12 months after certification or 12 months after the union or company gave notice to the other to start bargaining (whichever is later), or
• If someone in your bargaining unit had already applied to decertify the union, and did not succeed, you have to wait for 6 months after the date that the Labour Relations Board refused to decertify the union.

Get the Forms

You must make your application in writing and need to use a specific application form (Form 4).

Because you need to prove most of your coworkers don't support the union, you need to collect their names and signatures. Use a Petition Form or Individual Decertification Forms (IDFs). In our opinion, petitions are easier to use.

Avoid Mistakes

General Mistakes

To succeed, you may have to show that your employer wasn't involved in decertifying the union in ways that are not allowed. The Board says in its Information Bulletin titled “Revocation Of Certification / Termination Of Bargaining Rights” dated February 10, 2010: “Employees should ensure that they do not discuss their plan to file an application for revocation with management personnel of their Employer as this may jeopardize the validity of the application and Petition. Such applications should not be employer sponsored or supported.”

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. The union can accuse you of doing that as part of their effort to use a minor technicality to stop your application.

Application Support Form Mistakes

Whether you and your supporters chose to use the ’one page per person‘ Individual Decertification Forms or the ’many persons per page‘ Petition, it is important to notice that correct wording must be on whatever you use. In our experience, our wording is correct.

If you make a mistake and, as an example, you are in a hurry and use a blank piece of paper instead of a copy of the Petition page(s), the Board may refuse to accept that document as support evidence. There are some simple mistakes that you should not make.

• Anything 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 Board will reject that. That is why the wording on our blank Petition is identical to the wording on our blank Individual Decertification Forms.
• People who support your application should not sign an Individual Decertification Form or a Petition when they are working -– it is always best and safest to ensure you and they on a break during work or do it before or after work, or on a day off work. The reason is that you are supposed to be working. If the employer knows it is happening on working time and does nothing, the union might accuse the employer of supporting the decertification by ’turning a blind eye‘ to your efforts.
• As well as signing, they have to print their name so that it is easy to read.
• Every person who signs support evidence must write in the date while they are signing. You should not go back and get it later and you should not fill it in for them either before or after they sign.
• If the union has a Local number make sure to include it in the union name on anything you send to the Labour Relations Board, including support forms.
• If you are using petitions, number the pages that you use a format of page "1 of 5", then "2 of 5" and so on. If you have more than one Petition in circulation this will become important.

Build Support

You should not use threats or promises or pressure to get fellow employees to sign whatever evidence of support you chose, Individual Decertification Form or a Petition. You should think of one or two good reasons why you believe the union should be decertified. A businesslike and friendly approach works best. Remember, once more than 40% of your group sign a Card and you file your Application, there will hopefully be a secret ballot vote, supervised by the Labour Relations Board, where every employee in the group can vote in private. Not everyone who signs a Card will necessarily vote for decertification, but some who are reluctant to sign a Card may vote for decertification in the secret ballot vote. The only employee name that the Board reveals to the parties is that of the applicant; it does not reveal who signed the Petition or the Individual Decertification Form (IDF).

Check your collective agreement and read the section or definition about "bargaining unit." This is often called the "Recognition" clause, and is usually located near the beginning of the collective agreement. You will need to collect the names and signatures of at least 40% of the group mentioned in that definition.

You should also remember that it is quite likely that you will have to prove the signatures on your support evidence were given "freely" and "voluntarily."

Proof of Support

The application must be accompanied by support signed by at least 40% of the employees in the bargaining unit. Section 40 of the Labour Relations Board Rules of Procedure requires that the petition must contain the name, address, signature and date signed of each of the petitioners. The only name or names released by the Board is that of the applicant or of the applicants – this means the person or persons who want to be named and known publicly as the ones making the application. Signatures collected are valid for 90 days from the date they are signed.

The Board does not release the names of the other employees who signed the Petition or the IDF. This information remains confidential to the Board.

When gathering signatures, the organizer(s) of the application should ensure that:

• The Petition or IDF contains a statement of intent at the top of each page explaining the purpose of the Petition or IDF.
• Each person who is presented with the Petition or IDF is given an opportunity to read the statement at the top . This ensures that the individual understands what he/she is supporting by signing the Petition or IDF.
• The signing of the Petition or the IDF by the affected employees is voluntary.
• The signatures are not gathered during working hours.

As mentioned above, people who support your application should not sign an Individual Decertification Form or a Petition when they are working - they must be on a break during work or do it before or after work. The reason is that you are supposed to be working. If the employer knows it is happening on working time and does nothing, the union might accuse the employer of supporting the decertification by "turning a blind eye" to your efforts during work time suggesting that the employer wants everyone to know they support the decertification.

Where Working and Work Done on Application Day

In Construction, workers may be unionized by:

1. More than one certification issued by the Board. These can be decertified.
2. More than one collective agreement or under more than one set of bargaining rights that may have been voluntarily recognized or agreed to by your employer. These can be decertified.
3. Legislation that creates a special project agreement. No unionized worker working under a special project collective agreement can apply to decertify it.

For numbers 1 and 2 above, you and the other employees wanting to decertify, may be required to be doing work that is covered by the collective agreement or the certification or the bargaining rights you want to decertify – and to be doing that work on the actual date that you make your application to the board.

The only signatures that count are those from employees working on the date of filing and doing what is sometimes called covered work. This means the work that is related to item 1 or 2 above.

Therefore, you may need to find out whether the Collective Agreement or the unions bargaining rights were voluntarily recognized by your employer in the past, or whether you were certified or unionized, by the Labour Board.

Prepare the Forms

To properly complete your application form, you will need:

• The name, address and phone number of: the applicant, your contact person, the union and your employer.
• Approximate number of employees in your company and in your bargaining unit.
• The date the union was certified and the date the collective agreement was signed.
• A brief description about what kind of business your company is involved in.
• A description of your "bargaining unit" (see a copy of your collective agreement).
• Copies of the paragraphs in the collective agreement about its renewal and its term.
• Once you complete the application form, you will need to have a Commissioner of Oaths witness you sign the document. If you don't know where to find a Commissioner of Oaths, contact a lawyer since they are also Commissioners of Oaths in your province.

Deliver the Forms

You can send your decertification documents, including your application and Petition or support cards to the Newfoundland & Labrador Labour Relations Board by fax, hand-delivery, courier or even registered mail. If you send them by courier or mail remember to keep copies of everything for your records.

We feel that the best way is by fax because it is fast. It is always a good idea to keep a copy of the fax transmittal sheet that confirms that the fax was received by the Board.

The Board will notify your union and employer about your application but they will not share who signed the Petition with them.

Newfoundland and Labrador Labour Relations Board
P.O. Box 8700
5th Floor, Natural Resources Building
50 Elizabeth Avenue
St. John's, NL A1B 4J6
Telephone: 1-709-729-2707
Fax: 1-709-729-5738
GlennBranton@gov.nl.ca

Conclusion

Once the Labour Relations Board gets your application, it will assign an Officer. They'll contact the union and your company to inform them about your application.

Next, the Officer will investigate your application. Officers almost always look at the "voluntariness" of applications. They'll look to see if your company was involved in any way. If the Officer has concerns, your spokesperson will have to address them.

After the investigation, a report will be sent to you, the union and your company. If they have any concerns they can send their objections to the Board.

If no objections are received, the Board will usually go ahead and process the application. If there are objections, the Board will either decide the issues without a hearing or may refer the objections to a hearing. If a hearing is scheduled, the Board will contact you to find out how many witnesses you'll call and about how long they will each talk.

If the Board agrees your application was voluntary, it was made at the right time and at least 40% of employees support it, the Board will call a vote of all employees. If a majority of employees vote for decertification, your application will be successful and the union will be decertified.