Originally published April 4, 2014.
You may have seen in the media that Unifor (the old Canadian Auto Workers) applied this week to represent employees at Toyota’s three plants in Cambridge and Woodstock. The media stories said there is approximately 6500 employees employed in the potential bargaining unit. That number was an estimate based on information in the company’s public materials, including its website, which says that there are approximately 7000 people employed in the plants. Unifor would assume that a segment of the 7000 would be excluded employees (such as executives, managers, and other office staff). So 6500 would be a reasonable guestimate.
However, when the employer responded to the union’s application for certification, it claimed that there were in fact 7500 employees in the proposed unit and not 6500. If that is true, then the union is concerned that it’s level of support will fall below the 40% threshold that is required in Ontario to get a certification vote. Unifor has around 3000 union membership cards. Using 3000 as the number, in a unit of 6500 employees, the union would have about 46% support. But in a unit of 7500, the percentage falls dangerously close to 40%, creating the risk that the application for certification could end up being dismissed. So, Unifor decided yesterday to withdraw the application and try to sign up some more members before reapplying.
The Legal Model and the 40 Percent Threshold
Sadly, this scenario is not unusual, and it results from what I think is a silly and unnecessary design flaw in our labour laws.
Here’s how the model works. The law first requires the union to satisfy the government that “40 percent or more of the individuals in the bargaining unit proposed” by the union “appear to be members of the union at the time the application was filed” (Section 8(2)). If the union satisfies that test, then the Labour Board orders a certification vote, held one week later. If the union wins the vote, it becomes the bargaining representative of all employees in the unit (Section 10(1)).
Stupid Certification Law Number 1
In one of the stupidest laws in the history of labour regulation, the statute also requires the Board to dismiss an application if at some later point it turns out that the union only had 39% actual support in the bargaining unit when it applied. Follow along: there are 100 employees in the bargaining unit. The union applied when it got 40 union cards (40%), but later on, after the vote, it becomes clear that a counting error was made and it really only submitted 36 cards. Before that counting error becomes known, the Board held a vote and all 100 employees voted for the union. Under the asinine Ontario law introduced by the Mike Harris government (and preserved by the Liberals to this day), the results of the vote must be disregarded and the application dismissed. And they call it democracy, as Bruce Cockburn once sang.
Stupid Certification Law Number 2
But that nutty part of the law isn’t the purpose of this post. There’s even more stupidity to our union certification process. The requirement for the union to have 40% support in the proposed bargaining unit creates a situation in which the union is required to hazard a guess at the number of employees in that unit. In a small workplace, of say 50 or maybe even 100 or fewer employees, unions can usually figure out the number of employees with a high degree of confidence. The union asks workers to count, to make lists. Sometimes employees take photos of schedules with their phones, or sneak out employee lists that have been posted on bulletin boards. The legal model encourages this sort of (possibly illegal) behaviour by making unions sneak around trying to determine how many employees are in the bargaining unit.
In a large unit involving thousands of employees, including multiple shifts and large numbers of temporary or part-time workers dispersed over several locations, plus people on disability leave—like Toyota–the task of counting the number of employees becomes extremely difficult if not impossible for a union. It will study publicly available records, like websites, securities filings, and so forth. But in the end, the union is really just taking an educated guess at the number of employees.
Why Do We Make Unions Guess the Number of Employees?
In my mind, this is all a ridiculous waste of time and resources for unions, employers, and the government (i.e. “taxpayers” in the common lingo). Look what’s happened in the Toyota case.
The union filed an application based on its best guess of 6500 employees. The employer now has to pay lawyers to prepare its response. Senior Toyota management will have been huddled in an office with the lawyers for two days plotting their strategy and completing the mandatory legal forms. Those forms include what are known as Schedule A [a list of employees in the union's proposed bargaining unit] and Schedule B [list of employees not in the union's proposed unit, but in the unit the employer believes is appropriate]. In the Toyota case, Schedule A would have presumably included some 7500 names with job classifications and start dates. It takes considerable time and work to fill in a form like that. It’s a very hurried and stressful couple of days for employers.
The Union receives the Schedule A two days after it applied to represent the workers. It looks at the numbers, and says ‘crap, there’s more employees then we thought‘. So, it decides to withdraw the application and return to organizing more workers, but now at least it knows how many workers it needs to win over. It also knows everyone’s name and where they work. This is valuable information for a union organizer. Toyota is pissed that the union has the list of employees and in an amusing twist, has asked the union to return the Schedule A! Here’s what a Toyota executive said yesterday:
“We’re asking Unifor to return that list without delay. We’re going to take it up as a serious privacy issue under privacy legislation. We have a responsibility and a duty to protect our team members.”
[I'd suspect that privacy argument will have no legs. Schedule A is a legally required document that gives out no personal information except the name of a worker, their job, and start date. There's no contact information or information about their pay, etc. In a smaller workplace, the information in Schedule A would be freely available to anyone working there].
So, to recap: both the union and employer have so far retained lawyers, and wasted a couple of days on preparing legal forms and plotting strategies, only to get to a point where the union knows the size of the bargaining unit. It withdraws the application and goes back to sign more cards. It will then file a new application if it can get more support and this process starts all over again. In the meantime, the tensions and disruptions of an organizing campaign continue for a longer period.
A Better Legal Model?
This whole scenario raises a serious policy question that has baffled me since Ontario’s introduced mandatory certification ballots in 1995. How is the policy goal of allowing workers to decide if they want collective bargaining advanced by a rule requiring unions to guess at the number of employees in a bargaining unit. Why is this very basic information a secret? Why do we make unions and employees waste so much time trying to research how many employees there are? In a small workplace, this is basic information easily ascertained, as are the names of each employee on the voters list. This is not valuable proprietary information.
Imagine instead that our law permitted a union to make a request to the labour board for an order requiring an employer to provide the number of employees in a proposed bargaining unit. We could limit this right to proposed units of, say, 50 or 100 or more employees. Maybe there’s a threshold level of support the union needs to show, like having at least 20 union membership cards or the appearance of 20 percent support, just to demonstrate that there is a campaign underway. The employer is then required to tell the Board and the union the number of employees in the union’s proposed bargaining unit. This should be easy for the employer. It’s a number that the employer will know. We could further and follow the America law, which requires the union be provided with a list of employee names and contact information to enable the union to actually communicate with voters. We do this with political campaigns, but the preferred policy in labour law is to put up as many roadblocks as possible to stop unions from speaking with employees. It is a very odd system if the goal is to promote an informed choice of whether to support collective bargaining.
In my proposed model, the union and the employees know how much support is needed to meet the threshold 40% before it applies for certification. If the union can’t reach the 40% threshold, it will move on without ever filing an application for certification. Or, it will collect cards until it is comfortable that the 40% threshold will be met, and won’t apply for certification before that point. This simple law would eliminate the wasteful and time-consuming scenario happening at Toyota right now.
The first listed purpose of the Labour Relations Act is to: ”facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.” This purpose would be better advanced by a more transparent system in which everyone knows the level of support that is required for a union to represent the workers. Making unions guess at this number and until it files a formal legal application for certification is silly. Just tell the union the number so it can determine more easily if there is adequate support of collective bargaining or not. This is common sense, no?
Issues for Discussion
I have argued that the law should make it easier for everyone to learn how many employees are in a proposed bargaining unit, rather than make unions guess at this number or file applications for certification in order to learn it.
What is an argument against my proposal? Put differently, is the existing legal model better than my proposal? Why?