What is a “Sole Bargaining Agent”

In the process of a company becoming unionized a union “organizes” employees by seeking support usually in the form of  getting individuals to sign cards indicating they want to join the union. If the union gets enough cards (usually 40%) it can apply to the relevant Labour Relations Board for a vote. The union has to get 50% plus one, a simple majority, in order to become “certified” to represent the employees.

Certification means the Labour Board recognizes the Union as the sole bargaining agent for that group of employees. Thus the union enjoys the benefits prescribed under the Labour Relations Act to represent those employees in bargaining all matters relevant to their terms and conditions of employment.

Having the union as the sole bargaining agent is one of the important distinctions between being unionized and being union free. Once a union is certified the employer no longer has a direct contractual relationship with each one of its employees. Instead the employment contract for all the employees who are deemed members of  the union is the collective agreement.

The collective agreement is not a minimum standard. It provides the explicit terms and conditions of employment for all employees covered by the collective agreement. So the company cannot pay more or provide any other additional benefits unless it has negotiated to make changes with the union. Some terms and conditions can exist outside the collective agreement but the company is still obliged to discuss these with the union and to seek agreement when changes are being made.

As an employer, you are entitled to have any discussions with employees related to their work. You can give the work direction, provide feedback regarding performance and discipline employees when necessary. However, you cannot enter into any contractual arrangements with employees or even have discussions with them regarding the terms and conditions of employment. It is considered  an act of bad faith to make any attempt to bargain directly with your employees or try to bypass the union.

The sole bargaining agent has the right to represent employees on all matters. When an employee has a dispute with the company she can go to the union who will act on her behalf. Often, what  employers may not understand, and just as often employees also do not understand, is that when the union files a grievance on behalf of an employee the union “owns” the complaint. The company cannot settle the matter with the employee alone. The union speaks for the employee  and as sole bargaining agent must be a party to any settlement.

This also means that with very few exception an employee only has recourse in a dispute through her union. She cannot usually engage a lawyer to represent her in litigation even if she wishes not to have the union to represent her. Although it seldom happens, the union can refuse to represent an employee if it has good cause to do so (e.g. it does not believe the employee has a good case) and the employ has no other recourse to take action.

The union’s status as the sole bargaining agent fundamentally changes the employment relations to a three party arrangement. It is important to understand how this is different.