Certification Application Dismissed By ALRB for Union Misrepresentation

Since the advent of COVID, labour boards across the country are increasingly willing to accept electronic support evidence as part of the union certification application process. Such employee support evidence, including the identity of employees who have signed memberships or petitions, is kept confidential from employers as a protective measure. In a recent decision from the Alberta Labour Relations Board (the “Board”), unions are reminded that this protection carries a corresponding obligation to be forthright and accurate in respect of the materials filed in support of the certification application.

In General Teamsters, Local Union No. 362 v Hertz Canada Limited, 2026 ALRB 69, the Board determined that “a failure of credibility of a particular individual in a [union organizing] campaign can render unreliable all support they gather.” In a case argued by the authors John Gilmore and Nathan Fournier, the result of this “failure of credibility” on the part of the union was that the entire certification application was dismissed, notwithstanding the union’s submission that the procedural flaw could be cured by simply removing the one petition and then ordering a vote if the 40% support threshold was met.

Background

The union filed a certification application to represent certain car rental employees at the Calgary Airport location. The Employer brought unfair labour practice complaints concerning the union’s organizing activities in the organizing drive, and in addition, the Employer objected to the union’s electronic petition evidence due to the lack of procedural safeguards.

In the course of challenging the union’s electronic petition evidence, it was uncovered during cross examination of the union organizer that the union had failed to remove one petition from an employee who had reached out directly to the union organizer and sought to withdraw his petition. The union organizer had filed with the certification application an accompanying Declaration stating that:

1. the evidence of support submitted “takes into account… all resignations or revocations of membership” – which included revocations of support on a petition; and
2. the application represents evidence of the support of the number of persons included on the form.

As is typically the case, the Board acknowledged that the Employer had “no way of knowing whether a particular employee was or was not included in the support provided to the Board by the union” because “that information is kept confidential by the Board pursuant to section 14(6) of the Code.”

Board Decision

The Board found it more likely than not that the subject employee had repeatedly reiterated his desire to have his petition card removed directly from the union organizer, despite the union organizer’s evidence that the employee had only sought clarification about the process.

After considering the evidence, the Board was satisfied that the union organizer knew or ought to have known that the subject employee wished to remove his petition, and that the “Declaration sworn was incorrect: that the support submitted to the Board did not account for all revocations of support and the number submitted was not accurate.”

The union argued that even if the one petition was flawed, the Board should simply remove that one petition and then determine whether the 40% support threshold was met in order to order a vote.

However, the Board dismissed the union’s certification application in its entirety stating as follows:

[113] The Board is satisfied that there is a fundamental policy basis to ensure that a misrepresentation of the nature disclosed here in the Declaration of Union Organizer cannot be countenanced by the Board. It undermines the trustworthiness of the application as a whole. To suggest such an issue can simply be cured by a subsequent representation vote gives no substance to that concern. In this case, the Board is satisfied that the evidence of 40% support has been fatally undermined by the issue.

The Board also specifically noted that the sufficiency of the reason given by any employee for the removal of a petition is irrelevant, and that if “an individual expresses a desire to remove their support in advance of submission of the certification application to the Board, it must be removed.”

Conclusion

This decision provides helpful guidance about the importance of honesty and integrity in the union certification application process, particularly given that an employer cannot verify the accuracy of the membership support evidence filed by the union in respect of same.

Please do not hesitate to reach out to a member of McCarthy Tétrault’s Labour & Employment Team if you have any questions regarding this decision, and in particular John Gilmore and Nathan Fournier in our Calgary office who ably argued this case on behalf of the Employer.