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Employment & Labour

Respond promptly to union proceedings and correspondence: Zeilikman

When it comes to certain communication with a union, the best practice for an employer is to answer correspondence promptly, says Vaughan labour and employment lawyer Arthur Zeilikman.

“If the employer does not answer on time to union demands and fails to file a response to a subsequent application with the Ontario Labour Relations Board (OLRB)  they may become subject to a decision by the OLRB that’s hard to challenge,” says Zeilikman, principal of Zeilikman Law.

If a company is served with an application for union certification, for example, they must respond within two business days of delivery of the application, he tells AdvocateDaily.com.

"In another instance, in the absence of a timely response, the employer may also be declared a related or a successor employer and become bound to a collective agreement. The OLRB can step in and certify the company as a union workplace," he explains. 

A company could bring forward a request for reconsideration, but Zeilikman says an employer will need strong grounds to have it overturned.

"Even then it's hard to win," he says.

You can’t appeal the board’s decision under the Ontario Labour Relations Act, but it could reconsider its ruling, he says. The board has been clear, however, that the party seeking to challenge an existing legal relationship needs to identify specific facts and legal issues to be determined.

Zeilikman says a judicial review is also possible, but it’s not an appeal and the court would only review the board’s decision in accordance with strict principles.

“Courts don’t like to interfere with decisions of the board as it is an expert tribunal and courts are normally deferential to such tribunals.”

He suggests contacting a labour lawyer promptly after receiving a union's application for certification forms as the bargaining agent for employees.

“Forward it to a labour lawyer who knows how to respond,” says Zeilikman. 

There will be instructions attached and he offers a note of caution: “The problem is these forms are detailed and may confuse the average employer who has never been served board documents. I’ve seen this too many times, especially in the construction industry with smaller employers.”

He says employers also need to be cautious when an organization process is underway in their workplace.

“They have to be balanced in discussions with the union. They are not allowed to interfere with the process and they cannot intimidate or coerce employees from unionization.”

If they do, they risk remedial certification, which could happen if it’s deemed that an employer undermined the organizing campaign, says Zeilikman, who acts for both employers and employees. He adds that many employees are unaware of their rights and give up organizing too soon. 

“The union could bring an unfair labour practice application, which could result in the workplace being certified,” he says. 

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