I’ve been writing a lot about section 6.1 of the Labour Relations Act, 1995 (“LRA”) which came into force on January 1, 2018 as a result of Bill 148, Fair Workplaces, Better Jobs Act, 2017. Section 6.1 lays out a process where the union can apply to the Ontario Labour Relations Board (“OLRB”) for an order directing the employer to provide the union a list of employees in a bargaining unit that the union claims to be appropriate for collective bargaining.
I wrote about this most recently in the Fitzgibbon Workplace Law, April 2018 Legal Alert. Section 6.1 sets out a pretty mechanical process where the OLRB will order the production of the list where the union demonstrates support among 20% or more of the employees in the bargaining unit.
The employer has very few avenues to object, however, in the recent case of Service Employees International Union Local 1 Canada v ParaMed Home Health Oakville Branch, 2018 CanLII 34122 (ON LRB), the OLRB (through its Chair, Bernie Fishbein) has signalled that it will dismiss a section 6.1 application in an appropriate case.
In this case, the union delivered its application under section 6.1. The bargaining unit that the applicant claims to be appropriate for collective bargaining is:
all PSWs of the responding party working in and out of the Oakville Branch, save and except Registered Nurses, Registered Practical Nurses, Supervisors, persons above the rank of Supervisor, Office, Clerical and paramedical staff.
It estimated that there were 200 employees in this bargaining unit. The employer agreed to the proposed bargaining unit, but said that there were 280 employees in the bargaining unit. As required under the OLRB Rules of Procedure, the employer is required to complete a statutory declaration regarding the accuracy of the list of employees that it submits with its response. According to the Chair, the number of employees in the bargaining unit “is information that the responding party (arguably uniquely) would clearly have in its possession.”
Following a review of the information submitted by the union and the employer and a preference to accept the employers’ information regarding the numbers, the OLRB concluded that the union had not filed membership evidence on behalf of 20 per cent or more of the bargaining unit and the application was dismissed.
So what does this mean? As Chair Fishbein pointed out:
…. the Act does not appear to stipulate any consequences from the dismissal of an application for failure to demonstrate that more than 20 per cent of the individuals appear to be members of the union at the time the application was filed.
It is open for the union to continue with its organizing efforts and to file another application under section 6.1 of the Act as there is no statutory bar to making a further application.
One wonders whether imposing a bar on the union from making a further application under section 6.1 for some period of time would be appropriate? Clearly, unlike a dismissed certification application, a bar is not statutorily mandated.
This is the first case that I am aware of where the OLRB has dismissed a section 6.1 application.