Question 14
You asked: How to get rid of national union. And make our own local union?
Let’s get into it.
You are asking two separate questions.
[1] How to “decertify” the Union that you are currently in, and
[2] How do we form a “new” Union (as opposed to joining into another pre-existing Union).
Certification and decertification of Unions in BC is governed by the BC Labour Code. As I have mentioned many times previously, becoming familiar with all of the resources available from the BC Labour Code site is a fantastic tool for understanding labour law in BC. Rather than give a paraphrasing of the law I will direct you to three resources:
(1) The BC Labour Code itself;
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96244_01#section30
(2)The BC Labour Code “Regulations”, and;
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/7_93
(3)The BC Labour Code “Rules”
A preliminary comment is in order. I have published my experience with decertifying a union and starting a new one on social media recently.
When I first started with (then) BC Hydro in 1975 we were the Amalgamated Transit Union 101-134. A vocal group of dissidents wanted to decertify because they did not want to be in an “international union”. They wanted to (and eventually succeeded) in forming a new Union, the Independent Canadian Transit Union (ICTU). This was a local Union fashioned after the Canadian Association of Industrial Mechanical and Allied Workers (CAIMAW). As I have said in my social media posts, if we had spent as much time and energy towards improving the ATU I believe we would have been better off. That is my personal opinion.
I see on social media now that there is again a desire on the part of some vocal dissidents to decertify from Unifor and form a new, local Union. To answer your question, this is how you go about doing that.
There are very specific regulations administered by the BCLRB, including timing as to when you can commence a decertification vote. I will cut and paste a plethora of BC Labour Board information and leave it to you, the readers, to piece it all together.
[1] How to “decertify” the Union that you are currently in
Before you can start a new Union, you will have to decertify from your current Union, Unifor 111. (You cannot simply disassociate from the National portion of Unifor…. you are attached to the National through the Constitution and Bylaws.)
This is the process for decertification.
Division 2 — Revocation of Bargaining Rights
Revocation of bargaining rights
33
(1) If at any time after a trade union has been certified for a unit the board is satisfied, after the investigation it considers necessary or advisable, that the trade union has ceased to be a trade union, or that the employer has ceased to be the employer of the employees in the unit, it may cancel the certification.
(2) If a trade union is certified as the bargaining agent for a unit and not less than 45% of the employees in the unit sign an application for cancellation of the certification, the board must order that a representation vote be conducted within 5 business days of the date of the application or, if the vote is to be conducted by mail, within a longer period the board orders.
(2.1) The representation vote may be conducted by mail only if
(a) the individual identified in the application referred to in subsection (2) as the authorized representative of the employees who signed that application, the trade union and the employer agree, or
(b) the board is satisfied exceptional circumstances exist requiring the vote to be conducted by mail.
(2.2) An order under subsection (2) for a longer period in which the representation vote is to be conducted by mail must provide for the vote to be conducted as expeditiously as possible in the circumstances.
(3) An application referred to in subsection (2) may not be made
(a) during the 12 months immediately following the certification of the trade union as the bargaining agent for the unit,
(b) during the 12 months immediately following a refusal under subsection (6) to cancel the certification of that trade union, or
(c) during a period designated by the board under section 30 following a refusal under subsection (4) (b) of this section to cancel the certification of that trade union.
(4) After a representation vote ordered under subsection (2) is held the board must,
(a) if the majority of the votes included in the count are against having the trade union represent the unit as the bargaining agent, cancel the certification of the trade union as the bargaining agent for that unit, or
(b) if the majority of votes included in the count favour having the trade union represent the unit as bargaining agent, refuse the application.
(5) The board may direct that another representation vote be taken if
(a) a representation vote was taken under subsection (2), and
(b) less than 55% of eligible employees cast ballots.
(6) If an application is made under subsection (2), the board may, despite subsections (2) and
(4), cancel or refuse to cancel the certification of a trade union as bargaining agent for a unit without a representation vote being held, or without regard to the result of a representation vote, in any case where
(a) any employees in the unit are affected by an order under section 14, or
(Section 14 of the Code is the “Inquiry into unfair labour practices”)
(b) the board considers that because of improper interference by any person a representation vote is unlikely to disclose the true wishes of the employees.
(7) Despite subsection (10), if the certification of a trade union as the bargaining agent for a unit is cancelled under subsection (6), that trade union must not, during the 10 months immediately following the cancellation, apply for certification as the bargaining agent for employees in the unit.
(8) Subject to subsection (9), if the certification of a trade union as the bargaining agent is cancelled under any provision of this Code, a collective agreement between the trade union and the employer of the employees in the unit for which the certification is cancelled is void with respect to that unit.
(9) Nothing in subsection (8) affects the operation of section 27 (1) (c) and (2).
(Section 27 (1) (c)
Effect of certification
27 (1) If a trade union is certified as the bargaining agent for an appropriate bargaining unit,
(a) it has exclusive authority to bargain collectively for the unit and to bind it by a collective agreement until the certification is cancelled,
(b) if another trade union has been certified as the bargaining agent for the unit, the certification of that other trade union is cancelled for the unit, and
(c) if a collective agreement binding on the unit is in force at the date of certification, the agreement remains in force.
(2) Despite subsection (1) (c) and except if the trade union party to the collective agreement obtains the certification, the rights and obligations that were conferred or imposed by the collective agreement on the trade union party to the collective agreement cease insofar as that trade union is concerned and are conferred or imposed on the trade union certified as the bargaining agent.
(10) If the certification of a trade union as the bargaining agent for a unit is cancelled under any provision of this Code, no other trade union may apply for certification as bargaining agent for the employees within that unit until a period of 10 months or a shorter period specified by the board has elapsed.
(11) On receipt of an application for cancellation of certification the board may cancel the certification of a bargaining agent for a bargaining unit if it is satisfied that the bargaining agent has abandoned its bargaining rights in respect of the employees in the bargaining unit.
So, there is a lot to unpack in Section 33 of the Code and the reader must clearly be aware of how S33 interacts with other Sections. Specifically, in this case, Section 27.
The reader must understand that, at the time of a successful decertification, if the bargaining unit is covered by a current Collective Bargaining Agreement (CBA), the terms and conditions of that agreement are “conferred” on the trade union certified as the bargaining agent. Clearly, if the current certified union is NOT replaced with another union, the membership will not be covered by a CBA at all! That is why there is always another union in the wings. In the context of the original question asked - it will be a newly formed union under Section 23 (as the membership did when changing from the ATU 101-134 to ICTU). By far the most common practice is to decertify from one union and immediately be certified into another (as the membership did when changing from ICTU to the CAW).
To properly respond to the question asked, I am including a cut and paste from the BCLRB site detailing exactly HOW to apply for a decertification.
How to apply for decertification of a union
To apply for decertification:
Get at least 45% of the bargaining unit to sign Form 33A (found on the last page of Form 33)
FORM 33: APPLICATION FOR DECERTIFICATION
Complete the rest of Form 33
Submit the completed Form 33 and signed Forms 33As to the Board by email, mail, or courier
The signed Form 33As must be submitted to the Board within six months of being signed
Arrange to pay the filing fee
What happens when the Board receives the application?
The Board will review the application to make sure:
It was filed during the time an application for decertification can be filed, and
At least 45% of the bargaining unit have signed forms to say they don’t want the union to represent them
Once the Board confirms the decertification application requirements have been met, the Board will tell the parties—the union, the employer, and the other employees in the bargaining unit—about the application.
Within five business days of the Board accepting the application for filing, the Board will hold a secret ballot vote. The Board will decide how the vote will be held. The Board requires the employer to make sure employees know how and when the vote will be held. The Employer may also be required to provide certain contact information to the Board.
The Board may also hold a hearing. If there are objections to the application or concerns with the vote the Board may seal the ballot box until the issues are dealt with. If the Board dismisses the application, the votes will not be counted.
If 50%+1 of the employees who vote are in favour of decertifying the union, the application will be granted and the bargaining unit will be decertified. As a result, the employees will no longer be represented by the union and the collective agreement between the union and the employer will no longer apply.
If you have been successful in decertifying from your current Union, you will then have to start a new Union. Typically, when leaving one Union the organizers have been in contact with another Union and are getting assistance from their organizer with the understanding that when you leave your current Union you will be joining another, already established Union. That is not the premise of your question so I will continue as though you want to form a brand-new Union.
[2] How to form a “new” Union
Forming a new Union also goes through the BCLRB and must comply with the Rules and Regulations concerning applications made under the Code.
Typically, a group of members has formed an “organizing committee”. There is a monumental amount of work required before ever making an application to the BCLRB.
The process begins with collecting signatures on confidential union membership cards. You will require at least 45% of the TOTAL membership. The number for the total voting membership can be obtained from the Financial Secretary based on dues remitted by the company. Please note that, unlike strike votes and ratification votes, the 45% threshold must include every employee in the bargaining unit.
If the 45% threshold is achieved, you can apply for certification to the BCLRB and they will conduct a secret ballot vote. The result of that vote must be AT LEAST 50% + 1 for the Board to issue a certification.
If you collect 55% of the total membership signatures the Board will NOT require a vote.
I am providing a link to the BCLRB page referencing “membership evidence”. There are informative “resource links” in addition to multiple fully explained FAQ’s. Of particular note is the use of “electronic signatures” as opposed to signed membership cards. The leading case on that topic can be found in the list of decisions below as “Working Enterprises”. Any reader interested in trying to certify a new union would be very well advised to read the information in this link in detail.
https://www.lrb.bc.ca/membership-evidence
It would also be beneficial to read the leading decisions published by the Board regarding union certifications.
Dencan Restaurants Inc., BCLRB No. B255/93
W.G. Enterprises, BCLRB No. B334/95
L-178 Holdings Ltd. (Ramada Ltd. Hotel), BCLRB No. B8/99
Mysts Production Inc., BCLRB No. B242/2007
Ainsworth Lumber Co. Ltd., BCLRB No. B143/2009
Working Enterprises, BCLRB No. B67/2016
There are several other significant rules/regulations that must be strictly followed. I am reproducing Section 19 below and highlighting WHEN an application can be made where a CBA is currently in force.
Change in union representation
19 (1) Except in the case of construction,
(a) if a collective agreement is in force for a term of 3 years or less, a trade union claiming to have as members in good standing a majority of employees in a unit appropriate for collective bargaining may apply to the board to be certified for the unit during the seventh and eighth months of the last year of the collective agreement, and
(b) if a collective agreement is in force for a term of more than 3 years, a trade union claiming to have as members in good standing a majority of employees in a unit appropriate for collective bargaining may apply to the board to be certified for the unit during the seventh and eighth months of the third year of the agreement and thereafter in the seventh and eighth months in each year of the collective agreement or any continuation.
24. Certification
(1) Where a trade union applies for certification under the Code, the trade union shall file its application in a form set by the board and may at the same time present for verification membership cards signed in support of the application.
(2) Where an application for certification is made, the board shall
notify the employer and employees concerned by sending the employer a notice in a form set by the board;
notify any other trade union which may have a collective bargaining relationship with the employer; and
upon deciding to hold a hearing respecting the application, notify the parties of the date, time and place that the hearing will be held.
(3) On receipt of the notification under sub-rule (2)(a), the employer shall immediately post and keep posted a copy of the notice at its business premises for five (5) consecutive working days, or at such other place that allows all employees affected by the application an opportunity to see and examine the notice.
(4) Information relating to membership in good standing of a trade union (including the number of employees who have signed membership cards and any revocations of membership received by the board under Regulation 4) shall be for the confidential use of the board and shall not be made public except in accordance with Section 124(4) of the Code.
(5) Where the board orders that a representation vote be conducted, the vote shall be conducted in accordance with the Code and the Labour Relations Regulation.
(6) A certification issued to a trade union certified under the Code shall be in a form set by the board.
CONCLUSION
I have done my best to provide as much accurate information as possible on how to both “certify” and “decertify” a trade union. There are a great number of variables involved and the BCLRB is strict in the administration of all the details related to the applications.
Anyone who is SERIOUSLY considering making either application should contact a labour lawyer or a union organizer from an established union.
Thank you for your question on an important topic.