In Québec, two methods are used to determine the representative nature of a petitioning association, namely: i) counting membership cards or forms to determine the total membership of the given bargaining unit, or ii) holding a secret ballot vote by its members.
Generally, when a union files a petition for certification, the Québec Tribunal administratif du travail (the “Tribunal”) certifies the majority association based on a tally of membership cards/forms. A vote by secret ballot is the exception. However, when the membership card count is not sufficient to establish the employee association’s support by an absolute majority, the Québec Labour Code (the “Code”) provides that a secret ballot must be held by the members of the petitioning association on the day the petition is filed in two situations:
- Where no association exists—when an association is composed of between 35% and 50% of employees;[1]
- Where there is an existing, inactive or active association—when two competing associations each account for between 35% and 50% of employees.[2]
However, in a recent decision[3], the Tribunal departed from the usual criteria for determining employee support by ordering a secret ballot vote for a petition for union certification, even though less than 35% of the employees in the bargaining unit were members of the association on the day the petition for certification was filed.
Background
In this case, the Union filed a petition for certification to represent the employees of the Employer, a wood pallet and crate manufacturer employing approximately 70 people. The petition, which was filed without the proposed group of employees already being represented by a certified association, involved 59 of the 70 employees.
During the unionization campaign, the Union claims that the Employer interfered with its activities, in breach of section 12 of the Code. According to the union, the Employer exerted pressure on employees by organizing mandatory meetings and by expressing anti-union views perceived as hostile to unionization efforts. In addition, the executive manager allegedly encouraged employees to resign from the union association by distributing membership resignation forms in the workplace. In light of these allegations, the Tribunal found that the Employer violated section 12 of the Code.
The inquiry also revealed that the union had only succeeded in obtaining the support of 35% of the employees covered by the petition at the time the petition was filed. Not only is such a rate insufficient to automatically certify an association, it is also normally insufficient to justify a secret ballot.
An Exceptional Ruling: The Holding of a Secret Ballot Vote
Despite the union’s employee support being below the required threshold, Judge Dominic Fiset decided to impose a secret ballot vote, a surprising decision in the context of a petition for certification where no association was already in place.
According to the Tribunal, the Employer’s tactics hampered the union organizing campaign and compromised the union’s ability to reach the required threshold of either 35% to trigger a secret ballot vote or 50%+1 for direct certification. The Tribunal considered that the seriousness of the Employer’s interference justified this exception [translation] “in order to determine the employees’ true will,”[4] even where there was no existing certification covering the employees.
While Judge Fiset pointed out that holding a secret ballot in such circumstances is extremely rare, he cited the following two precedents in support of his decision:
- Cancellation of certification in 2003: In Bernard c. Métallurgistes unis d’Amérique, section locale 9414,[5] the Tribunal ordered a secret ballot after finding that the employer had interfered in the USW’s organizing campaign, notably by encouraging resignations from the union. It felt that a secret ballot was the [translation] “appropriate remedy” to rectify the employer’s undue influence and allow employees to express themselves freely. The context involved the cancellation of certification, where the issue concerned the loss of a union that was already in place.
- Raiding campaign in 2008: In Teamsters c. Joncas Postexperts inc.,[6] the Tribunal ordered a secret ballot after finding that the employer had, whether intentionally or not, supported the incumbent union during a raiding campaign, thereby skewing the unionization process. The use of a secret ballot was intended to ensure that employees could express their views free from any pressure or influence. Once again, the context differs from the facts at hand in that it involved two unions competing for union representation that was already in place.
These two decisions are clearly quite different from the situation that is the subject of this article, which involves an initial certification petition. The order to hold a secret ballot with regard to a petition for certification, where there was no existing certification and the support threshold was below 35%, is unprecedented.
In support of his decision, Judge Fiset stated that the provisions of the Code must not be interpreted as preventing the Tribunal from ordering a secret ballot vote when the petitioning association covers less than 35% of the employees in the proposed unit. He also referred to section 32 of the Code, which provides that the Tribunal may “decide as to the representative nature of the petitioning association after investigating this question in any manner it thinks advisable.”
Conclusions
This first-of-its-kind ruling could mark a turning point in the way the Tribunal addresses petitions for certification. By imposing a secret ballot below the traditional support threshold of 35% of the employees, the Tribunal is sending out a strong signal: anti-union tactics can justify exceptional corrective measures to restore the balance of power between employers and unions.
For employers, this decision raises concerns about the consistency of the unionization process. In deciding to circumvent the established support thresholds, the Tribunal seems to be departing from the clear parameters that normally guide its decisions. This could lead to the increased use of secret ballots in cases where the unionization process is believed to have been undermined.
