Ontario  -  Construction
Union Unfair Labour Practices
Are There 'Illegal' Things A Union Or Employer Must Not Do?

Yes, Federal labour law has rules that Unions, employers and employees must not break. When they do it is called an Unfair Labour Practice (ULP).

Unions may charge employers with Unfair Labour Practices during: Union organizing campaigns, decertifications and their ongoing relationship (for example during bargaining). Similarly, employers may charge unions with Unfair Labour Practices for certain things.

Some Union websites have good information about what employers might do in response to a Union organizing drive.

Employees, who feel that the employer has done something wrong, will find that the Union will almost always file the Unfair Labour Practice complaint for you. There are a number of things that an employer may not do during certification or decertification drives. Many are obvious: threats, intimidation, coercion, penalties, or promises. There are less obvious things that employers are not allowed to do, like interfere with or control the administration of a Union. The Union will provide significant help to employees who want to become or remain Unionized and will usually provide an expert or a lawyer to go to the Ontario Labour Relations Board for you. The Union pays the legal fees.

Unions have excellent staff, lawyers and websites funded by forced Union dues from unionized employees. LabourWatch does not attempt to duplicate the excellent information and resources available from Unions. See our Links section for links to Union websites.

While employers can charge a Union with a ULP for certain things, we do not deal with how that works at LabourWatch either. Employers have more resources than employees to help them deal with Union actions.

If you have Employment Standards or Human Rights complaints about your employer you can generally get some help from a government agency. At this time there is no “Employee Advisor or Ombudsman” funded by taxpayers or Union dues to help you address concerns about a Union. If you have a problem with a Union’s actions (that your employer cannot address with the OLRB and the Union) you are expected to take it up with the Union or go to the OLRB yourself, or with a lawyer. Generally, employees are discouraged from approaching their employer regarding their Union’s conduct. See What Things Might be an Unfair Labour Practice (ULP) by a Union?

Our mandate, in advancing employee rights, is to provide information and resources which: Unions do not provide, employers may not be able to provide and some OLRB choose not to provide. The challenge you face is proving that a Union is doing illegal things or committing unfair labour practices. Be prepared for the possibility that the OLRB will allow Unions to do things to you that you might disagree with but may be lawful.

It is also generally true, that our labour laws and Labour Boards apply a different standard for what a Union may or may not do and what an employer may or may not do. Employees generally have the greatest free speech rights in comparison to Unions, and certainly greater than employers. In addition, while Unions can help pro-Union employees in many ways, employers can generally not assist Union-free oriented employees.

The standard for false representations is not easily proven against a Union. The OLRB has ruled that a Union is entitled to engage in “salesmanship” and “propaganda” without such statements being a ULP. The OLRB’s view is that a Union "must have a reasonable right to recruit members and sell itself" - even if the OLRBdisapproves of the Union's statements.

If you provide your employer with the necessary information, the employer may be able to file an Unfair Labour Practice Complaint based on the inappropriate behaviour. It may also be able to provide you with the name of a lawyer you can contact to assist you with your own application.

Employers can pursue Unfair Labour Practice Complaints against a Union on issues directly relevant to the employer. One example is interfering with employees at the workplace during working hours without the employer’s consent. Another is where the Union requires an employer to terminate the employment of an employee because the employee is no longer a member of the Union.

At LabourWatch we hope this website and our Section on filing Unfair Labour Practice Complaints against Unions will help you understand how to file an Unfair Labour Practice against a Union. If you want to speak with an expert please see the Contacts section of the website to find a lawyer who may be able to help you.

Updated: 2006-08-30
What Things Might Be An Unfair Labour Practice (ULP) By A Union?

Intimidation and threats are closely related. They may range from threats of loss of jobs to threats of physical harm. Such conduct is not acceptable under the Ontario Labour Relations Act.

The Ontario Labour Relations Board usually allows some latitude when considering whether a Union has made inappropriate promises. For instance, Unions are generally expected to make promises of better working conditions. However, direct attempts to buy employee support (e.g., promises of payments or other remuneration from the Union in return for joining the Union) may be an Unfair Labour Practice.

Some examples of what would be an Unfair Labour Practice:

  • Telling an employee that they will lose their job once the Union is certified if the employee failed or refused to sign a Union membership card.
  • Attempting to persuade employees, at the employee’s place of work during working hours, to join, not join, or cease to be a member of a Union, without the employer’s consent. (Consent would include an employer specifically authorizing such activities or failing to stop them when they become aware that they are taking place.) It is up to the employer to exercise its disciplinary powers to deal with employees who use paid time to work for, or against, the Union.
  • Make an employer fire an employee because the employee has been expelled or suspended from membership in the Union (unless the reason for the expulsion is the employee’s failure to pay Union dues).
  • Expel or suspend an employee from membership in the Union or take disciplinary action against an employee by applying the Union’s membership rules or discipline standards in a discriminatory way.
  • Expel or suspend an employee from membership in the Union or take disciplinary action against an employee because the employee refused to break the Ontario Labour Relations Act sections relating to unionization.
  • Union discrimination against a person because they disclosed or were about to disclose information they were required to disclose by law.
  • Threaten you, corner you, harass you, or otherwise bully you into signing a membership card - that is “intimidation”.
  • The Union cannot threaten to lay charges under the Union constitution and then offer to have them withdrawn in return for support in a certification application.
Updated: 2006-08-30
What Can I Do If I Believe The Union Is Misleading Me?

Unfortunately Unions are held to a different standard than Employers when it comes to an organizing drive. Compared to Unions or Employees, an Employer is limited in what it can say or do. A Union is allowed and even encouraged to convince Employees of the benefits of Union membership. Employees who oppose or support the Union can equally campaign to encourage their fellow Employees to join, not join or cancel their membership cards, though they too are bound by Ontario Labour Relations Act.

Fact: Unions very rarely sign up 100% of Employees.

For example, unfortunately Unions often pressure you by telling you that you are the last to sign and surely you don’t want to be the last to sign. When an outside Union organizer or a fellow employee supporting the Union tells you this, you may want to confirm for yourself if other employees have signed. In particular, talk to other Employees and find out who else has been told they were the “only” Employee who had not signed. Unions often say this and it is almost never true. Rarely do 99%, let alone 100%, of all employees sign a card in a Union drive.

The “stack of cards” and the you’re-the-last-one trick.

Another tactic, according to what Union organizers tell LabourWatch, is to have a stack of cards or papers that the organizer claims are signed by other employees. Sometimes they make up cards or they have actual cards on the top of the pile and the rest are blank. They do this to try to make you think you are one of the last to sign; they also want to make you feel like you’re “part of the crowd.”

LabourWatch suggests that you never sign a Union card just because fellow Employees or Union organizers tell you that you are the last to sign, that most have signed, or they show you stacks of cards. They are most likely not telling the truth. If you have signed a card after being told this you may want to cancel it right away. See our Download about how to cancel your card. If the Union is going to use this sort of tactic you should ask yourself what other lies they may be telling and whether you can trust them with Union dues and your employment. Check into most everything a Union says before signing a card.

While such lies might be an Unfair Labour Practice – the misinformation “coerced” you into signing a card – it will be very hard to prove and in the end the Ontario Labour Relations Board might say this kind of technique or “mere puffery” is allowed. It is best to first cancel any signed cards, then file a ULP and ensure all other Employees find out what you believe the Union might be doing. LabourWatch suggests you file the ULP because Canada needs more cases of Employees calling into question what Unions do in order to establish more case law on Union actions towards Employees.

Ask questions, talk to your fellow Employees, friends, and family, question and try to confirm the Union’s claims. Find out what the Union has told other Employees.

Membership is not mandatory – unless that is negotiated later

Remember, you are not required to sign a Union membership application or Union card. You are permitted to join the Union after they are certified (if they get certified).

Also, if your Employer gives in to a common Union demand to have a “forced membership” clause in the collective agreement, you will be a member whether you want to or not. A Union card or membership application tells the OLRB that you want the Union to represent you in your dealings with the Employer. It never means less than that, so if you are unsure, don’t sign.

If you believe that the Union is misleading you, the best thing to do would be to not sign a membership application or Union card until you are satisfied that the Union is giving you correct information. If you have signed and later get information that concerns you, cancel your card immediately – see our Download for cancelling a Union card.

Unions don’t have to tell you everything

A Union is not required to give you all of the relevant information to help you make the decision to join or not join. OLRB decisions make it clear that it is your responsibility to have all your questions answered before you sign an application for Union membership. If you allege that the Union obtained membership cards through fraud (signing cards for employees who never agreed to sign or paying the legally required card fee) (see What If The Union Uses A Card I Did Not Sign, Or That I Cancelled? for more information on these topics), the Canada Industrial Relations Board will decide how to deal with those allegations. If you do allege that there were irregularities about how the Union obtained membership cards, you must present proof to the OLRB. It’s not enough to simply make the allegations.

If you’ve been misled

If you find out that you have been misled, or have reason to feel you have been lied to it is very important that you act quickly – there may be little time to change your mind once you have signed a Union card. It could be used to get a vote on the Union or even a card certification (certification without a vote). If you feel the Union, or someone representing the Union has misled you, and that you to signed a card in an organizing campaign because of that information, the first thing you should do is cancel your Union card and then file an Unfair Labour Practice Complaint with the OLRB. See our Downloads section – Cancellation of a Union Card for a how-to description with forms.

Updated: 2006-08-30
What If The Union Uses A Card I Did Not Sign, Or That I Cancelled?

It is fraud for a Union to submit a card that you did not sign and it should result in THAT membership or Union card not being counted. In some cases, the Ontario Labour Relations Board may do more serious things to the Union. At a minimum the OLRB should not count THAT card in the decision of whether or not the Union gets a vote. Given the very tight timelines involved in Union certification drives, by the time you realize what has happened it may be too late. If you believe there has been, what is known as “card fraud” work with your fellow Employees to gather the necessary evidence and submit it quickly.

If there’s been card fraud…

Given the very tight timelines involved in Union certification drives, by the time you realize what has happened it may be too late. If you believe there has been, what is known as “card fraud” work with your fellow Employees to gather the necessary evidence and quickly submit it.

If someone else signed your name on the card without your permission, this is forgery, and it may also be appropriate to call the Police in addition to filing a ULP.

A Union might try to rely on an improperly obtained membership card by filing it with the OLRB with an application for certification. If you have signed a Union membership card and you believe that the Union intimidated, coerced or lied to you while getting your membership, then you can attempt to cancel or “revoke” your membership. (See What If I Have Signed A Union Card But Don't Support The Union? about cancelling membership) If possible, this should be done before an application for certification is filed with the OLRB.

To cancel or “revoke” your membership and try to prevent it from being used to allow the Union to file a certification application, you should write to the Union and the OLRB stating circumstances of the signing of the card and declaring that you wish to revoke your membership. We suggest you seek independent legal advice, but you can do this on your own, If you are considering this, don't delay! The OLRB may require your objection to be received by it within five days of the certification vote.

Updated: 2006-08-30
I Signed A Union Card But The Union Did Not Tell Me About Dues.

Depending upon the circumstances, if the Union has misled you about Union dues or promised that you do not have to pay Union dues, its’ conduct may be an Unfair Labour Practice.

There is no requirement for the Union to tell you about dues. However, if the Union has misled you about Union dues, or told you that you will not have to pay Union dues - that may be an Unfair Labour Practice. You should ask the Union Representative about Dues, Initiation Fees, and Special Assessment Fees that might be payable.

Get as much information as possible. Do not sign a Union card when it is first given to you. You should make yourself knowledgeable about what it means to sign any document – especially one that removes your right to deal with your Employer directly. You should find out as much as possible about how your signature on a Union membership card can affect your future. You should ask questions of the Union representative or whoever is trying to get you to sign, and you should help others become knowledgeable about what you have learned.

Updated: 2006-08-30
I Was Told That I Would Lose My Job if I Did Not Sign a Union Card.

No, that is not true. This is a threat and it is an Unfair Labour Practice for a Union Organizer to make this kind of threat.

If a Union becomes certified, it represents all Employees – not just the Employees who supported the Union during the certification drive. Employees who do not sign a Union card or Membership Application cannot be punished, and you will not lose your job. If a Union threatens that you will lose your job if you do not sign a Union card, the Union is committing an Unfair Labour Practice. The Union can exclude non-members from meetings about certain Union business and you will not be able to run for a Union office such as President of the Local, but they must represent you in every way regarding your employment and the provisions of the Collective Agreement.

Section 85:
No trade union shall suspend, expel or penalize in any way a member because the member has refused to engage in or to continue to engage in a strike that is unlawful under this Act.

Section 87(2):
No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

  • discriminate against a person in regard to employment or a term or condition of employment; or
  • intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

Updated: 2006-08-30
I Was Told That The Initiation Fee Would Go Up After The Union Certifies.

If a Union tells you that the fee for becoming a Union member will be higher after they unionize your workplace, it would likely not be considered an Unfair Labour Practice as long as the Union does not break its own by-laws or constitution in doing so. The Union has sole power to decide its Dues, Fees, and Special Assessments including the right to raise them. This is why it is so important for you to obtain a copy of the Union’s bylaws and constitution.

Before signing a Union card or any membership document, you should review the Union’s by-laws and constitution. This should be your main source of information about how the Union will act. Reviewing these documents will give you the information to help you decide if signing a Union membership document is in your best interest.

A Union that, or a person who – acting on behalf of a Union, solicits support for an application for certification should provide an Employee with information about the amount payable, or reasonably expected to be payable, for any initiation fees and regular membership dues if the Employee asks for it. If you are not provided with this information, ask for it!

If you cannot get these documents you should not sign a Union card. Demand that the Union organizer give them to you first. If they tell you that you have to sign a card first, consider what sort of Union you are joining.

Updated: 2006-08-30
What Can An Employee Do About A Union Unfair Labour Practice (ULP)?

LabourWatch provides a Form for employees covered by the Ontario Labour Relations Act along with a set of instructions to help you file an Unfair Labour Practice Complaint against a Union. It sets out all the required information you must complete when making a complaint. There may be Ontario Labour Relations Board information officers who should answer any questions you have. At LabourWatch we are very interested in learning about Employee concerns about Union conduct – please call or email us (see Contact Us) and tell us about your experience with a Union and the OLRB if you file an Unfair Labour Practices Complaint.

Updated: 2006-08-30
What Would The Labour Board Do About Union Unfair Labour Practice (ULP)?

If the Union is found guilty the Ontario Labour Relations Board has the authority to impose a wide range of penalties.

When a complaint containing sufficient information is filed, a Registrar of the OLRB will acknowledge receipt of the complaint and forward a copy to those persons who are affected, for example: an individual, a Union and/or an Employer. The Registrar will give these persons instructions for replying and a deadline to file their reply and later any responses to the replies of others. The Registrar usually appoints a labour relations officer, who will contact the parties to assist them in resolving the complaint. If the parties are unable to reach a settlement, the officer must refer the complaint to the OLRB for adjudication (“judging”). In complaints which remain unresolved, the officer will file a detailed report with the Vice Chair that will hear the case, decide, and then send a copy of the report to the parties. The report to the OLRBwill not include any confidential information provided to the officer by any of the parties during the settlement attempts. If a complaint is not settled, the OLRB may schedule a hearing or decide based on written submissions. If they find that the Union acted illegally, but that the Union’s conduct did not change or affect the outcome of a certification vote, the OLRBwill generally not dismiss the Union’s certification application.

  • The Union can be ordered to reinstate someone to membership in the Union.
  • The OLRB can order the Union to rescind any disciplinary action taken in respect of any Employee in contravention of the Ontario Labour Relations Act.
  • Direct the Union to take other steps to correct the ULP.
  • Dismiss the certification application.

Generally, the more serious the breach of the Ontario Labour Relations Act the more serious the penalty.

If the OLRB upholds a complaint, it may order a remedy that is not aimed at punishing the party which committed an infraction, but rather at putting the complainants in the position they would have been in had the infraction not occurred. The OLRB does not have the power to fine a party who has been found to be in violation of the Ontario Labour Relations Act.

It’s not really possible to say what the penalty for any specific item or action would be. So much depends on the specific circumstances and context. For example, if the actions complained about had no real effect on the Employees’ ability to express their wishes about being represented by a Union, then the penalty, if any, will tend to be less serious.

Updated: 2006-08-30
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