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 its 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)).
So our model creates a contest to win the hearts and minds of employees about the benefits or drawbacks of collective bargaining. It pits unions and their supporters against the employer (which usually doesn’t want collective bargaining) and employees who also do not want a union. One might think that the law would have as a central policy goal during this contest the availability to the employees of as much information as possible. However, that is not at all what the law seeks to achieve. Instead, the law is structured to ensure that employers have almost unfettered access to the employees during the organizing campaign and lead up to the vote, and unions have virtually no access to employees except insofar as they can somehow reach the workers outside of the workplace, since union organizers are not permitted on employer property.
But Canadian law provides no aid whatsoever to make it easy for unions to do this: unions have no right to make a speech to workers ahead of the vote, as they do in Britain. And unions have no right to receive contact information for the employees so they can speak or send out literature, as is required by U.S. labor law. Nothing. It is time for Canadian labour law to enter the 21st first century.
The requirement for the union to have 40% support in the proposed bargaining unit creates a situation in which the union is required to flat out guess at the number of employees in that unit. In a small workplace, of say 50 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. It’s stupid.
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. The union can spend days or weeks studying 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?
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 than 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!
So, to recap: both the union and employer have so far retained lawyers, and spent time preparing legal forms and plotting strategies, only to get to a point where the union finally learns 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? Union Access to Numbers and Names
How is the policy goal of allowing workers to make an informed decision about whether collective bargaining is right for them 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? 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 employees or more. 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.
Further, we should follow the America law, which requires the union be provided with a list of employee names and contact information (ie email addresses for example) to enable the union to actually communicate with voters. In Canada, political parties are given a list of voters and their addresses in political elections, but the preferred policy in labour law is to ensure that only employers have the voters contact information, not unions. The system is designed 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.
Employers argue that it is a gross interference with employee privacy to be required to give out employee contact information, such as email addresses, to a union that is attempting to organizing the workplace. I entirely understand why employers don’t want unions to be able to contact their employees. It is great being the only party with easy communicative access to the voting constituency! But let’s face it, nowadays that argument is nonsense: I get 50 junk emails a day from companies that have been given my email address by some business or another. If I’m not interested in the email, I just delete it. How is it harmful for employees being asked to make an important decision about unionization to receive an email with information from the union and a way to contact the union for more information?
Because I Have All the Answers
In my proposed model, the union can apply to the labour board once it has obtained a certain threshold of employee support, say 20%. At that point the employer must provide the union with the names and number of employees in the bargaining unit so the union knows how many employees it needs to get to a majority. Again, there is nothing about that information that proprietary and no reason to hide this number except to make life difficult for unions. For smaller workplaces, the union can calculate this number easily just by talking to the workers. The challenge is large workplaces and workplaces with large contingent workforces. There is no policy reason to justify making unions guess how many employees are in the bargaining unit.
Secondly, the union must be given email addresses to enable them to send information to the workers. Again, there is no policy reason that justifies making it difficult for unions to communicate with workers. Employers can simply walk around the workplace chatting up workers, or hold a “captive audience meeting” requiring employees to listen to all the reasons the employer thinks unionization would be band. And of course employers already have the phone numbers and email addresses of the employees so they can send anti-collective bargaining messages that way too. Unions should at the very least be able to send the voters emails making the union’s case for collective bargaining. Workers who don’t support collective bargaining can just delete the email, like I delete and block emails every single day. What’s the problem?
Issues for Discussion
I have argued that the law should make it easier for unions 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. My proposal is that unions which can satisfy a low threshold (say 20% employee support) should be entitled to receive a list of names of employees in the bargaining unit and contract information.
Can you think of an argument against my proposal that is NOT just that employers would rather unions be required to guess the number of employees in the bargaining unit and not be able to communicate with those employees through emails?