Applications for Employee Lists: A Strategic Organizing Tool

March 22, 2018

Recent amendments to the Ontario Labour Relations Act, added after the passage of Bill 148, have created a new tool for trade unions to assist with their organizing campaigns. Unions can now make an application to the Labour Relations Board for an order requiring an employer to provide a list of its employees to the union. A number of successful applications for employee lists have already been made since the new provisions came into force on January 1, 2018, demonstrating the promise of this legislative development.

The new provisions are contained in section 6.1 of the Act. In order to obtain an employee list, the Union must demonstrate to the Board that the employees in question are not already represented by a union and that they can form a unit appropriate for collective bargaining.[1] The application to the Board must include a written description of the proposed bargaining unit, an estimate of the number of individuals in the unit, a list of the names of the union members in the unit and corresponding evidence of union membership, such as union membership cards (evidence of union membership is confidential and is not revealed to the employer).[2] If the Board determines that the employees are in fact unrepresented by any Union, that the proposed unit could be appropriate for collective bargaining and that twenty percent or more of the “estimated number of individuals” in the proposed unit “appear to be” union members, it will order the employer to provide a list of employees to the union.[3]

When the Board orders the employer to provide an employee list to the Union, the list must include the name of each employee and his or her phone number and personal email address, if the employer has this information.[4] The Board also has the discretion to direct the employer to provide additional information, including the job title or business address of each employee and any other means of contact that an employee has provided to the employer other than a home address.[5]

An employer faced with an application under section 6.1 can oppose the application by giving notice to the Board within two days of receiving notice of the union’s application that it disagrees with the union’s proposed bargaining unit description or the union’s estimate number of employees in the unit.[6], the Board is not required to hold a hearing or consult with the parties, and may determine the application based only on the written information provided by the union and employer.[7] In every one of its reported decisions to date, the Board has determined section 6.1 applications on the basis of written submissions alone and in doing so has expressly recognized the need for quick decisions in 6.1 applications. [8]

A review of the Board’s 6.1 applications to date show that the Board intends to take a more lenient standard in determining the appropriate bargaining unit for a section 6.1 application compared to an application for certification. In Markham Stoufville Hospital, the Board explained that the distinction comes down to the fact that a decision to grant bargaining rights triggers significant consequences for the union, the employer, and the affected employees, whereas an application under section 6.1 asks for something much more limited — a list of employees “and nothing more.”[9]

The developing case law on this issue suggests the Board is not inclined to impose a heavy burden on unions who seek an order pursuant to section 6.1, and efforts made by employers to avoid being ordered to provide employee lists have, so far, met with little success. For example, in Markham Stoufville Hospital, where the union and the employer disputed the number of employees in the proposed bargaining unit, the Board went with the estimate that would result in a favourable outcome for the union, suggesting a permissive and flexible attitude toward section 6.1 applications.

It is important to note that section 6.1 does not apply to employers in the construction industry, a limitation found in subsection 6.1(17).[10] However, the new provision can still be useful to unions who represent workers who work in both the construction and non-construction sectors. In Miller Paving Limited,[11] the Board ruled that section 6.1(17) did not prevent a union from seeking an employee list for non-construction employees in circumstances where an employer performs both construction and non-construction work.

Employers will certainly continue to make creative arguments in an attempt to avoid being ordered to provide crucial information to unions who seek to organize their employees. In the meantime, unions should take advantage of the Board’s permissive posture towards applications for employee lists under section 6.1 of the Act, and develop strategic uses of the new statutory provisions.

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[1 ] Labour Relations Act, 1995, section 6.1(1)

[2] Labour Relations Act, 1995, section 6.1(3)

[3 ] Labour Relations Act, 1995, section 6.1(6) and (7)

[4] Labour Relations Act, 1995, section 6.1(9)

[5] Labour Relations Act, 1995, section 6.1(10)

[6] Labour Relations Act, 1995, section 6.1(4)

[7] Labour Relations Act, 1995, section 6.1(8)

[8] Markham Stoufville Hospital, 2018 CanLII 1101 at para. 19.

[9] Markham Stoufville Hospital, 2018 CanLII 1101 at para. 18.

[10] Labour Relations Act, 1995, section 6.1(17)

[11] Miller Paving Limited, 2018 CanLII 2622