The Union, Collective Agreements, and Grievance Arbitration

---

The Unionization Process

---

We understand that the unionization process can be a concern for SME owners, and it is important to understand how employee unionization occurs. Employees wishing to form a union must first collect signed membership cards to become members. At this stage, the employee association is not yet accredited and is not considered a union under the law. The association must subsequently file an accreditation application along with a resolution from its members with the Tribunal administrative du travail and must comply with all legal requirements. Upon receiving the accreditation application, the employer is obligated to post a complete list of the employees covered by the application, whether they are members of the association seeking to become a union or not.

It is important to note that as soon as the request to form a union is filed with the Tribunal administratif du travail, business owners cannot modify the working conditions of employees. This means that they cannot change working conditions such as salary, meal break time, bonuses, travel allowances, and more until a collective bargaining agreement is adopted, there is a strike or lockout, or the accreditation application is rejected due to insufficient support from the employees covered by the request.

A labour relations officer is then dispatched to the workplace to verify the validity of the request and discreetly confirm the number of employees supporting the accreditation request since union membership must remain confidential as per the Labor Code. At least 35% of the employees covered by the accreditation request must be members of the association to be accredited for a vote to take place regarding the establishment of a union within the company. If there are fewer than 35% members among the employees covered by the accreditation request, unionization will not occur, and no other request can be made in the following three (3) months. However, if the labor relations officer finds that there are already more than 50% members among the employees covered by the request, they will proceed to accredit the association immediately, and the union will be legally created. If there are between 35% and 50% members among the employees covered by the accreditation request, a secret ballot vote will be held. In such a case, if the majority (50%+1) of the employees vote in favor of establishing the union, the labor relations officer will proceed to accredit the union. The union will then be ready to negotiate a collective bargaining agreement with the employer.

---

What Employers Can Do to Challenge Unionization Requests

---

While employers cannot prevent employees from unionizing, such as by terminating employees for engaging in union activities, they can challenge the composition of the bargaining unit proposed in the accreditation request. Indeed, an accreditation request may propose to unionize all non-managerial employees in the company, without making any distinctions between different classes or categories of employees. However, this can sometimes be problematic for the company, and the employer may rightly debate the composition of the bargaining unit and request the exclusion of certain groups of employees. For example, an employer may argue that office employees and support staff are separate categories. Case law dictates that courts must consider the will of the employees, the history of labor relations, industrial peace, territorial or geographical divisions, and communities of interest. For example, do telephone operators have common interests with merchandisers? Office employees with field salespeople? Should employees from a Longueuil factory be part of the same union as those from a Montreal factory? If the Tribunal administrative du travail (TAT) grants this request, the employees covered by the accreditation request could indeed be partitioned into several groups, leading to a vote on unionization for each bargaining unit and thereby avoiding the unionization of the entire workforce or part of it because not all employees are in favor of unionization.

---

The Consequences of Establishing a Union

---

The establishment of a union has significant consequences for both employees and employers. One of the most important consequences is that the union will have the exclusive right to represent its unionized members and negotiate the rights and working conditions of employees as outlined in a collective agreement. An individual employee will no longer be able to negotiate their working conditions directly with the employer; instead, all employees will be subject to the same conditions set forth in the collective agreement, regardless of their individual performance. If an employee has a dispute with the company, they will need to file a grievance with the employer and must be represented by their union before an arbitrator.

Another consequence, sometimes subject to criticism, is the mandatory union dues, commonly known as the Rand formula. An employer is required to withhold union dues from employees' paychecks and remit these funds to the union to finance its activities, even if the employee is not a union member. Whether an employee likes their union or not, agrees with its activities or not, and whether they are a member or not, if they are part of the group of employees covered by the CBA, they are obligated to contribute, and this contribution is deducted from their salary.

Furthermore, unionization also survives the sale of the company or the partial or total concession of its activities to another company. If the company operates and employs unionized employees, the collective agreement remains in effect. Now, we will delve into the negotiation and signing process of a collective agreement between the employer and the union.

---

Negotiating a Collective Agreement

---

Before the establishment of a union, the employer negotiates working conditions with each individual employee. Once the union is in place, the new counterpart to the employer is the union, and the employer can no longer enter into individual employment contracts with its employees. The employment contract that applies to all workers is what we call the collective agreement. When the union has just been accredited, there is no collective agreement in place yet. Both the employer and the union have an obligation to negotiate a collective agreement in good faith. They must agree on the following elements:

• Management rights and responsibilities
• Job security
• Professional matters and union representation
• Seniority rules
• Grievance procedure
• Work schedules
• Overtime
• Paid holidays
• Vacations
• Special leaves
• Termination and disciplinary measures
• Sick leave and workplace accidents
• Group insurance, if applicable
• Retirement
• Parental leave
• Wages for each job category
• Discrimination and harassment policies

It is important to keep in mind that the working conditions outlined in the collective agreement must be at least as generous as what the Act Respecting Labour Standards provides for non-unionized workers. The employer must negotiate in good faith with its new counterpart, the union, to agree on the content of the collective bargaining agreement. While the union is the exclusive representative of employees, it does not mean that the employer is at the mercy of the union and must accept its every demand. On the contrary, negotiations involve a back-and-forth process where both parties make proposals, receive them, and review them before making counterproposals.

---

Strikes and Lockouts

---

In the absence of an agreement, both the employer and the union can exercise their own forms of pressure after 90 days. The union can initiate a strike, which means a coordinated work stoppage, forcing the employer to try to operate the business without its unionized employees. The employer cannot hire external employees, commonly referred to as strike-breakers, to operate the business. Instead, the employer will have to use its management staff to replace the striking employees. Of course, unionized employees are not paid during a strike, so they have an interest in pressuring the employer and compelling them to accept the union's latest offers.

On the other hand, the employer can use a lockout, which is essentially an employer-initiated strike, to encourage unionized employees to accept the employer's latest offers. During a lockout, the business temporarily closes, and unionized employees are not paid.

You will notice that during a strike and lockout, two realities collide: the loss of income for the employer and the absence of wages for unionized employees. Even during a strike and lockout, both the employer and the union have an obligation to continue negotiating to reach a collective bargaining agreement. This means that both parties must make proposals, receive them, and review them before making counterproposals. It is not about making a final offer without the possibility of discussion. It is important to understand that the consequences of a strike and lockout are quite drastic, as there is a partial or complete loss of income on both sides. Therefore, there is an incentive for the employer and the union to negotiate. In some cases, it is even possible to resort to dispute arbitration to determine the content of the collective agreement.

The signing of the collective agreement puts an end to the conflict between the employer and the union. There can be no strike or lockout if a collective agreement is in effect. Of course, this does not mean that there will be no conflicts during a period of three, five, seven, or ten years. Indeed, conflicts may arise regarding the interpretation and application of the rights outlined in the collective agreement, and it will then be the responsibility of the union to investigate, file, refer, and defend a grievance in arbitration.

---

Dispute Resolution and Grievance Arbitration

---

In most collective agreements, there is usually a section dedicated to the procedures for filing a grievance and the steps leading up to arbitration. In the rare cases where such a section is not present in the collective agreement, you would need to refer to Articles 100 and onwards of the Labor Code. It is important to know that the union has a monopoly on representing unionized employees in arbitration. The union assesses the validity of the grievance and decides whether to defend it in grievance arbitration or not. Many disagreements can lead to a grievance, whether it is related to an employee's dismissal, psychological harassment, seniority violations, non-payment of vacation or leave benefits, and more. Here is a brief overview of the different steps in the grievance resolution process:

Filing a Grievance
The unionized employee, accompanied or not by a union representative, submits a written grievance to the designated employer representative. The grievance should specify the article of the collective bargaining agreement that has been violated, provide a description of relevant facts and events, and state the remedies sought (e.g., monetary compensation). The timeframe for doing so is determined by the collective agreement and cannot be less than fifteen (15) days, as mandated by the Labor Code.

Employer's Response
The employer can respond to the grievance. It is worth mentioning that the employer is not obligated to respond, and if there is not response, it is assumed that the employer disputes the validity of the grievance.

Submitting the Grievance to Arbitration
If the grievance remains unresolved, the union must submit it to arbitration within the timeframe specified in the collective agreement. The union must present the grievance to the grievance arbitrator designated in the collective agreement or, in the absence of such designation, the one appointed by the Minister of Labour, Employment, and Social Solidarity. Grievance arbitration is equivalent to a court trial.

Grievance Arbitration
The grievance arbitration process follows the rules of evidence and procedure established by the collective agreement and by law. The grievance arbitrator, akin to a judge, will hear evidence and arguments from the employer, typically represented by a lawyer, and from the union. In very rare cases, the collective agreement may allow the unionized employee to represent themselves or be accompanied by a lawyer. The employee who filed the grievance or is the subject of the grievance will usually be called as a witness. Once all evidence has been presented, the grievance arbitrator will render a decision, much like a judge would. The arbitrator's decision cannot be appealed but can be subject to judicial review in the Superior Court of Quebec if the employer or the union believes there was a significant error that invalidates the arbitrator's decision. It is worth noting that the grievance resolution procedure is different for federally regulated employees. In such cases, you would need to refer to the collective agreement and the Canada Labor Code. Also, certain sectors, such as police officers, firefighters, and construction workers, have their own grievance arbitration laws, so it is important to be aware of these in addition to the Quebec Labor Code.

Please note that the above process is a general overview, and the specific procedures and timelines may vary depending on the collective agreement and applicable labor laws. It is essential to consult with a labour and employment lawyer the relevant collective agreement and labor legislation for precise details in a specific situation.