You don’t hear about public sector unions being decertified very often, but that’s what happened recently for a unit of about 300 employees in the Legislative Audit Category. Approximately 65% of the bargaining unit workers signed a petition seeking to decertify PSAC as the bargaining agent. The application was granted, without a vote, and PSAC no longer represents the workers. Here is the Federal Board’s decision.
The decertification process is similar to the certification process. Essentially, the Board needs evidence that a majority of employees no longer wish to be represented by the union. In a certification process, that evidence takes the form of union membership cards (which the employer does not see) and, depending on what province is involved, perhaps also a secret ballot vote. In a decertification procedure, the employees usually sign a petition, not cards. In this case, about 65% of bargaining unit employees signed the petition.
Decertification Without a Vote! The Horror
An interesting issue in the case was was whether a vote should be held. In a flip of the usual position taken in certifications by unions, PSAC here argued that the Board should order a vote, and not accept the written petition as reliable evidence of employee wishes. Note that in the Federal sector, votes are not mandatory in either certification or decertification proceedings, unlike in Ontario, for example. The union argued that there was a lot of misinformation being thrown about. The Board rejected the union’s position, and ordered the decertification based on the written petition only. It ruled that the union had not raised any real evidence that the petition evidence was unreliable, and instead simply wished more time to make its case against decertification, which a vote would afford it. Since over 65% of the workers signed the petition, the Board believed that was strong evidence of support for decertification.
Do you see a problem with a majority rules system that does not require a secret ballot vote? Is it “undemocratic” that the union was decertified without an employee vote?
Of course, this is one of the big debates in labour law. Advocates of mandatory votes (as opposed to just checking union membership cards) argue that the only “democratic” means of testing employee support for collective bargaining is by holding a ballot. Presumably, if you believe that, then that reasoning would apply also to decertification campaigns.
Employer Promises to Continue to Apply Terms of Collective Agreement to Nonunion Employees
What is the result of the decertification, by the way? The answer is the union no longer represents the workers, and the collective agreement that protected the workers before ceases to exist. These employees are now governed by the common law rules of employment. However, there is an issue about what their new individual contract of employment includes. For example, do the terms of the collective agreement that no longer exists simply become the terms of the new individual employment contract? Does the “just cause for discipline and dismissal” term previously in the collective agreement become a term of the individual employment contract? The Code grants the Board a power to consider these sorts of issues (Section 102, cited in the decision).
Interestingly, here, the employer told the Board that, if the employees decertified, it would continue to apply the terms of the collective agreement to the now nonunion employees. What does that mean? Does it mean, for example, that the employer can’t discipline or dismiss the employees without just cause (assuming a just clause term was in the collective agreement)? Does it mean that the employer will continue to deduct union dues and submit them to the union?
Can an Employer Promise to Apply Collective Agreement Terms if the Employees Decertify?
Last question, for bonus points: Do you think it would be illegal for a unionized employer to tell employees that if they decertify, it will continue to apply the terms of the expired collective agreement? (Hint: in Ontario, look at Section 70 of the Labour Relations Act)
