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Law of Work Archive

PSAC Decertified for Legislative Auditors

by David Doorey January 7, 2011
written by David Doorey January 7, 2011

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  The application was granted, without a vote, and PSAC no longer represents the workers.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)

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

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TheLawofWorkDavid J. Doorey@TheLawofWork·
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Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

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CanLawWorkForumCLWF@CanLawWorkForum·
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New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

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