Labour & Employment Law - Summer 2018

Prohibition on Repetitive Union Organizing Attempts

On July 4, 2018, the Saskatchewan Labour Relations Board (the Board), in LRB File No. 019-18, confirmed that there is a twelve-month prohibition preventing a union from filing a second application with the Board to organize the same workplace. The underlying facts involved the Saskatchewan Government and General Workers Union (SGEU) applying to certify an employer in July 2017. When the ballots were counted in August 2017, the SGEU did not have a majority support.  Before the application to certify could be dismissed by the Board in the normal course, the SGEU withdrew its application. 

In November 2017, the SGEU filed another certification application for a smaller bargaining unit carved out of the previous certification application. In response to the employer’s request that the Board summarily dismiss the second certification application, the SGEU’s application was dismissed by the Board in reliance on its authority in Section 6-12(3).  The SGEU thereafter sought a reconsideration of the Board’s decision.

During the hearing, the SGEU representative testified that he withdrew the first application so that the SGEU was not bound by the legislative consequences arising from the dismissal of a certification application by the Board. It was clear that the SGEU was deliberately manipulating the categorization of events to avoid certain mandatory provisions in the Saskatchewan Employment Act (SEA).

The 2013 Saskatchewan Employment Act appeared, on its face, to change the restriction from the six-month ban on repetitive certification applications in the former Trade Union Act to a twelve-month ban.  The SGEU argued that the time ban should not apply to defeat employee’s Charter and legislated rights to be represented by a trade union of their choice and to collective bargaining. The Board has now confirmed the twelve-month legislative intention. The Board also confirmed that, if a union wishes to file a second certification application within the twelve-month period of restriction, it must submit evidence and argument to the Board indicating why the time bar should not apply. Presumably, the same case law would apply from the former legislation which sets out the narrow grounds for a second certification application within the previous six-month ban. In this instance, no such information was provided by SGEU.

Lastly, the Board’s decision includes a notable comment clarifying an employee’s Charter right to freedom of association.  The Board Chair wrote: ‘The Union states that the employees have “the right to be represented” [para 55 of the Union’s Brief of Law]; in fact what they have is “the right to join associations that are of [their] choosing”, and in this case joining the Union was not their choice.’