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Labor Relations News Update February 25, 2015

Today’s Labor Updates:

Canada: Union certification and decertification changes for federally regulated employers

Non-union employers beware: the NLRB outlaws employer’s questions regarding supervisor’s performance

Shell Oil Refinery Worker Files Federal Charge in Wake of Steelworker Union Strike Intimidation


Canada: Union certification and decertification changes for federally regulated employers

Contributed by Fasken Martineau DuMoulin LLP

February 25 2015

On June 16 2015 important changes regarding union certification and decertification for federally regulated employers in Canada will come into effect. Federally regulated employers include interprovincial and international transportation companies, airlines, railways, banks and employees who work for the federal government.

 Existing landscape

At present, in order to become certified as the bargaining agent for a group of employees in the federal sector, a union must either show majority support from employees in the workplace or win a representation vote. Traditionally, majority support is demonstrated by signed union membership cards: if a union obtains signed cards from more than 50% of the employees, it will be certified as the bargaining agent without a representation vote. Votes by secret ballot, which are rare, take place only when a union cannot show majority support with signed cards (between 35% and 50% support). Applications for certification with less than 35% support are dismissed.

This federal sector regime, known as the ‘card check’ system, contrasts with regimes in place in other Canadian jurisdictions. In Ontario, for example, a secret ballot representation vote is mandatory in all cases (except in the construction industry).


On June 16 2015 changes will come into effect eliminating the card check system for federally regulated employers and requiring a mandatory secret ballot vote in all cases. A secret ballot vote can be triggered if a union demonstrates at least 40% support. The changes also reduce the threshold of support required to initiate a secret ballot vote for decertification. The threshold is reduced to 40% from the current 50% plus one.

The changes have been welcomed by employers. The existing card check system for federally regulated employers has been widely criticised for a variety of reasons. Critics point out that the card check system is more susceptible to undue influence by unions. It also gives unions an advantage because employers have very limited opportunities to respond to an application for certification if the union can prove majority employee support, which it is usually able to do. Under the new system, employers will have the opportunity to ensure that employees have the facts from both the employer’s and the union’s perspectives, so that they can make an informed choice at the ballot box.

These changes were made as a result of amendments to the Canada Labour Code, the Parliamentary Employee and Staff Relations Act and the Public Service Labour Relations Act as a result of the enactment of Bill C-525, Employees’ Voting Rights Act.

For further information on this topic please contact Daniel Mayer at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381), fax (+1 416 364 7813) or email ( The Fasken Martineau DuMoulin LLP website can be accessed at


Non-union employers beware: the NLRB outlaws employer’s questions regarding supervisor’s performance 

Barnes & Thornburg LLP

Keith J. Brodie

February 20 2015

Most employers probably believe it is acceptable to ask questions of employees about their and other employee’s views of their supervisor’s performance. The proposition seems common-sense and straight forward enough. However, the NLRB apparently disagrees.

The case of Grand Canyon Education, Inc., 362 NLRB No. 13 (Feb. 2, 2015) proves, once again, a disconnect between rather common employer practices and the NLRB efforts to zealously protect Section 7 rights. In this case, the Board “rubberstamped” its earlier decision vacated by the United States Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). In doing so, the Board held that the non-union employer’s general questioning of an employee about how her supervisor was doing as a manager, and specifically, then following up with the employee who volunteered information that others had complained about the supervisor, by asking “whom” had done so, was a violation of Section 8(a)(1). This was despite the fact that the Administrative Law Judge, who heard all the evidence, had specifically found that the evidence showed “there was no reason to believe that [the Employer] wanted the names for any nefarious purpose.” Notwithstanding a total lack of such evidence, the Board found the questioning tended to restrain, coerce or interfere with employee’s Section 7 rights. The Board majority found a “nefarious purpose” was immaterial. Dissenting Member Miscimarra vigorously disagreed. Of course, in the wake of the Board majority’s decision, employers (union and non-union alike) are left to wonder how on earth they can legally follow up on apparent concerns about supervisory performance without knowing whom to talk to.

This case represents one more example of an expansive interpretation of Section 7 rights that seems to odds with many employer (and probably employee) expectations about how to better and improve the workplace.


Shell Oil Refinery Worker Files Federal Charge in Wake of Steelworker Union Strike Intimidation

Union officials threatening workers who refused to abandon their jobs

Houston, TX (February 24, 2015) – As the highly-publicized United Steelworker (USW) union-instigated strike against oil refineries continues, a Shell Oil Company refinery worker has filed a federal charge against a local Steelworker union for intimidating workers for refusing to abandon their jobs.

With free legal assistance from National Right to Work Foundation staff attorneys, Joseph Smith of Friendswood, Texas filed the unfair labor practice charge with the National Labor Relations Board (NLRB).

At Smith’s plant in Deer Park, roughly 150 of the approximately 800-large workforce have continued to work during the strike, with many resigning their membership in the USW Local 13-1 union, as is their right under federal labor law and Texas’ popular Right to Work law. As the stream of workers resigning union membership and returning to work grows every day, it was reported that USW Local 13-1 union officials turned off their fax machine in an attempt to stop workers from exercising their right to resign and return to work.

Smith’s unfair labor practice charge alleges that USW Local 13-1 union officials are resorting to harassing, coercing, and threatening workers for refusing to abandon their jobs. Further, USW Local 13-1 union officials have allowed the union’s website and Facebook page to be used to communicate threats against workers who continue to work during the strike.

“USW union bosses are trying to punish workers who have the courage not to toe the union boss line and instead provide for their families,” said Mark Mix, President of National Right to Work. “It is indefensible that workers who resign their union membership and continue to work to support their families in defiance of the USW boss-ordered strike are now being harassed and threatened for exercising their rights.”

In response to the high-profile strike, the National Right to Work Foundation recently issued a special legal notice to workers affected which lays out their rights under federal labor law:

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