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Changing Workplaces Review (Part 1): A Look at the Unionization Proposals

May 26 2017

The long-awaited final report of the Ontario Changing Workplaces Review (CWR) was released this week.  The Report was written by two experienced labour lawyers representing both sides of the labour law bar.  Michael Mitchell is a former partner at the union-side law firm Sack Goldblatt Mitchell, while Justice John Murray represented employers for many years before going to the bench.  Right away, this balance lends the report a high level of credibility, contrary to say the recent process in Saskatchewan, where no attempt was made by the government to engage in a balanced consultation with the labour relations community before ramming through extensive changes to work related laws.  [FYI, see my discussion of one-sided versus balanced labour law reform in this review of Saskatchewan's recent Bill 85, pages 3-6]

A New Mega-Labour Statute

The Ontario government will now decide what to do with the 173 recommendations made in the report.   Recommendation 1 is to consolidate the Employment Standards Act, Labour Relations Act, and Occupational Health and Safety Act into a new statute called the Workplace Rights Act.  While I understand the thinking behind this, I’m not a big fan, mostly because I find the Canada Labour Code (267 sections) and the relatively new Saskatchewan Employment Act (230 pages), which work this way, to be a pain in the ass to deal with.  On the other hand, I have argued that the strict silos between the various statutes should be broken down creatively to improve compliance, so maybe putting the ESA and LRA in one statute helps signal that move.  More on that in later posts.

This entry will look quickly at some key proposals to the collective bargaining regime (Part IV of The Law of Work) relating to the unionization process, as considered in Chapters 10 and 11 of CWR.  Call it part one of my review of the CWR.  I will look at bargaining structures and the interesting proposals on franchises in a later post, as well as proposals respecting the Employment Standards Act.

EXCLUSIONS (Chapter 10)

Keeping with a theme in the Review, the authors propose eliminating some long-standing exclusions from the LRA, including lawyers, doctors, and other professionals, as well as “homeworkers”.   Most notable is the proposal to include “agricultural workers” in the LRA.  It is notable because the Ontario government has just spent nearly 20 years defending this odd exclusion in extended Charter litigation, leading to Supreme Court of Canada decisions in Dunmore and then Fraser.

The government’s long-standing argument that agricultural workers employed by a giant agri-corporation should not be able to engage in collective bargaining because a need to protect the “family farm” is ludicrous and the experts call the government on this.  They suggest that for true small family farms, certain exclusions could be carved out.   There may also be good reasons to limit the right to strike in some cases where the crops would be threatened by a work stoppage, but that limitation would need to be justified under Section 1 of the Charter in the post Saskatchewan Federation of Labour world.

If these changes are implemented, expect unionization of many large agri-operations as well as government lawyers, who have thus far attempted to bargain outside of the LRA.

ACCESS TO COLLECTIVE BARGAINING AND THE UNIONIZATION PROCESS (Chapter 11)

Chapter 11 of the CWR zeros in on the unionization process.  Crucial to understanding the recommendations in this part is the experts’ requirement that the recommendations be treated as a complete package.  If one or two proposals are cherry picked from the group of recommendations, then the experts presumably no longer endorse the model.  This will put extreme pressure on the Liberals to justify a rejection of the complete package.

In particular, the experts’ recommendation that the government retain mandatory certification votes rather than re-introduce card-check based certification (see chapter 39 of The Law of Work) is conditioned on their various other proposals being implemented to protect employees.  Without the whole package, the experts may very well feel that card-check is preferable since they generally reject employer concerns about card-check as a system while accepting that employers respect vote outcomes more.

Access to Information During Union Organizing Campaigns

The experts recommend that employers be required to provide a union actively organizing its workers with a list of employee names and contact information (work location, address, phone number, and email address).   To obtain this list, the union must apply to the Labour Board and demonstrate the appearance of at least 20% employee support. (Recommendation 149)  Also, the experts recommend that once a union had received the list, any employee can also request a copy of the list.  That will likely cause some serious push back, since many employees probably do not want coworkers to have their personal contact information.

This proposal is pretty much exactly what I recommended should happen back in this 2014 blog post about Toyota, right down to the 20% figure.  In that post, I explained how stupid it is that we make unions guess how many employees are in the bargaining unit, rather than just tell them. In our existing model, in order to obtain a unionization vote, the union needs to establish it has the support of at least 40% of the bargaining unit employees.  But how is the union to know how many employees that is in a large workplace with various part-time, seasonal, and temporary workers?

The Toyota situation I describe in that earlier post demonstrates the lunacy of making a union guess the number of employees, as if this is some great trade secret.  The union applies with what it thinks is 40%, the employer then hires lawyers to respond by showing that there are more employees than the union thought, so the union withdraws its application and returns to sign up more people.  How is that a sensible use of resources and time for everyone concerned–union, employer, and labour board?  Employers will hate this proposed change, because anything that makes union organizing harder is preferable to them.  But if the model is intended to let employees freely choose whether to support unionization, then the law should facilitate the ability of unions to actually communicate with workers.

When I wrote the 2014 blog entry, a Liberal insider told me he liked the idea of employee list or at least a requirement that the union be told the number of employees in the bargaining unit, but was more reserved about the addresses, phone numbers, and email addresses.  Wouldn’t surprise me if the Liberals go part way on this proposal.  We’ll see.  I think some sort of employee list is coming to Ontario law.

The 40% Threshold to Obtain a Unionization Vote

The experts did not propose a change to the other “stupid union certification law” I mention in the Toyota blog entry.  That law (OLRA, Section 8.1) requires the Labour Board to dismiss an application for certification if it turns out that the union had only 39% support when it applied instead of 40%, even if a majority of employees voted for the union in a certification vote.  I always thought it should be good enough if the Board finds that the union “appears” to  have the support of 40% in the bargaining unit and then let the results of the vote determine employee wishes.  At least with the provision for an employee list the union will know how many employees it needs to get to 40%, so most of the guess work is gone.

Mandatory Votes or Card-Check as Test for Majority Support

This is one of the hot-button issues in labour law.  I love that the experts cut through the bullshit in this debate by calling a spade a spade:  unions want card-check certification because they win certification more often with this model, and employers want mandatory votes because unions lose more often under a vote model (read 316-319). Employers were very worried that the experts would propose a return to card-check certification that governed in Ontario for most of the 20th century until the decidedly anti-union Mike Harris Conservatives introduced mandatory votes “as a new and radical departure” in 1995.

I would not have been surprised if the experts recommended card-check but with higher threshold level of required support than in the past, such as 65%.  That is the route the Alberta NDP government is leaning towards as they consider labour law reform.  That model makes sense to me simply because in my experience, if a union applies with greater than 65% support it always wins the vote unless there is illegal conduct by the employer.  There is often some leakage in union support by vote time, but not 15 to 20% loss of support.  Therefore, a vote is mostly a waste of already scarce labour board resources.  However, the trend in Canada is away from card-check in any form since it drives employers ballistic.

Here is Chart 39.1 from The Law of Work that shows the current state of the unionization procedures in Canada today.

Screen Shot 2017-05-29 at 3.43.12 PM

The CWR experts have not proposed card-check, despite noting that they do not share the business communities’ concerns about card-check.  They write at page 322 that:

“The irony is that secret ballot votes, which are said by the employer community to be necessary to safeguard against the unreliability of the card-based proceed, are unreliable if there is employer misconduct.”

The experts proposed a revised model of mandatory certification votes intended to better protect employees from employer interference in those votes.  As noted, their support for mandatory votes is conditioned on the government implementing the rest of their proposals in this chapter.  Here is where we find some of the most important proposals in the package.

Remedial Certification and First Contract Arbitration

Firstly, they recommend beefing up the remedial certification section.  Remedial certification is ordered when the employer commits an unfair labour practice during an organizing campaign that effectively undermines the ability to conduct a fair vote.  It is rarely used, but acts as strong deterrent to illegal employer conduct, such as threatening workers if they vote union.   Under the current model,  remedial certification is only ordered if the Board believes a second vote is not feasible and the union has demonstrated “adequate support for collective bargaining”, a vague concept.  The experts reject the theory that a second vote is useful after the employer has committed an unfair labour practice and the need for unions to establish “adequate support”.  As the experts note poetically, “once everyone knows the well is poisoined, no one will drink the water”.   The reality is that unions don’t win second votes after employer unfair labour practices.

Therefore, Recommendation 145 is that remedial certification be almost automatic if an employer unfair labour practice occurs during an organizing campaign.  And then comes a novel, crucial new proposal likely to attract among the most hostile employer opposition.  Recommendation 146 is that a remedial certification order gives a union automatic access to first contract arbitration, unless the union engages in bad faith bargaining.   The first contract arbitration process would include access to a new “intensive mediation” mechanism described on page 330 of the Review.

These recommendations would overcome a huge obstacle to unions in putting down collective bargaining roots.  It is especially difficult for unions to obtain first collective agreements with resistant employers.  A model such as the one proposed by the experts would, for example, have aided the unions involved in the historical struggles for first collective agreements at places such as Wal-Mart in Windsor, where a remedial certification order simply commenced a multi-year battle by Wal-Mart to resist a first collective agreement.  Expect the Wal-Mart’s of the world to lead a pitched battle against this proposed reform.  Ironically, they will argue that access to first contract arbitration is a gross interference with the freedom to engage in “voluntary” negotiations.

Electronic Union Membership Evidence and Ballots

The two experts are generally supportive of moving towards electronic union membership and voting in union certification proceedings (Recommendations 150-152).   How do you think employers will respond to this proposal?

Issues for Discussion

1.    Do you think the experts’ recommendations for reform of the unionization terms of strike a reasonable and fair balance between the interests and concerns of employers, employees, and unions?

2.    What effect, if any, do you believe the changes to the remedial certification and first contract arbitration provisions will have on employer behaviour during organizing campaigns?

3.   Do you agree with the experts’ decision to retain mandatory votes for union certification in Ontario?

 

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7 Responses to Changing Workplaces Review (Part 1): A Look at the Unionization Proposals

  1. Adrian Di Lullo Reply

    May 26, 2017 at 6:21 pm

    I am troubled by the proposed requirement to provide contact information along with the employment list once the union reaches a threshold level of support. I can only imagine the complaints from angry employees to their employer who will rail against the union getting access to their personal email(s) and phone number(s). These complaints will not be assuaged by a response that it is legally required.

    • Doorey Reply

      May 26, 2017 at 9:42 pm

      Hi Adrian. Note that the experts also recommend that employees too can get the list once the union has a copy. I agree that this proposal will cause controversy. Although I guess one could argue that our emails are already given out to companies all the time without our explicit consent, and many people’s homes and phone numbers can still be found in phone books or on Canada 411 website. Nevertheless, the concern you raise is why I mentioned that I would not be surprised if the Liberals resist full contract information, but still give unions a list of names and the number of employees in the proposed bargaining unit. In the UK, the union can give literature to the equivalent of our labour board and it mails out the literature to the homes of the employees. That way the workers get union literature, but the union does not get a list of home addresses, emails, and phone numbers. Another middle of the road option.

      • Adrian Di Lullo Reply

        May 29, 2017 at 1:56 pm

        I think the reviewers underestimated the number of employees who would be unhappy to hear from a union. Not suggesting that this is an overwhelming problem, or that it derogates from the logical reasons why a simple list is appropriate. I think its a valid practical problem, and one that the reviewers may not have appreciated from their vantage point as lawyers.

        At the end of the day, a lot of the recommendations are about keeping the employer out of the union organizing drive (which is not a bad goal), whereas the provision of contact information to the union (regardless of whether it is a legal requirement) would require the employer to get involved or appear to be involved.

  2. Lashley Ray Reply

    May 26, 2017 at 11:23 pm

    I was an union organizer in both the construction industry and industrial as well. The last campaign I worked on before retiring was settled with a remedial certification. It took nearly eighteen months of bargaining to get to a first contract. In that time the members wages were frozen and in spite of the union notification that it was not opposed to the raises. The company still took advantage of the freeze and in effect fomented much animosity towards the union and the company. Arbitration would have avoided much of this. The entire campaign was over four years from start to when the deal was ratified. The CS Wind campaign was without a doubt was the most adversarial of my career. The NLRB has the exclesior list in the States which is similar to the proposal.

  3. Ben Ziegler Reply

    May 27, 2017 at 3:44 pm

    Re: remedial certification – if the first collective agreement is based on an arbitrator(s) decision – how might the resulting employer-employee relationship differ from a voluntarily achieved first contract? (no matter if negotiations were hostile or not)…. What’s the research on relationship outcomes following remedial certification?

  4. Fernando Reis Reply

    May 29, 2017 at 3:05 pm

    I think these proposals will assist unions in organizing, however the real problem for unions is how to communicate effectively with workers so that workers can clearly understand the benefits of collective action. Unions have been far too dependent on the law to the detriment of a more “grass roots” approach. As I see it, there is less need to return to a card check system and more of a need for unions to be able to effectively communicate with workers and to build in real penalties for employers who attempt to thwart a union’s legitimate activities.

  5. Bradley Wight Reply

    May 31, 2017 at 10:21 pm

    Electronic Union Cards, as opposed to electronic voting, have been legal in Ontario for the past 15 years. It’s just no union has been willing to take the risk of setting a precedent.

    I have looked into the matter; there is no actual legislation that mandates the use of a ‘card’ per se, the practice is actually just a precedent that floated over from the US under PC 1003, along with the rest of the Wagner Act. Given the state of technology, it was all that was possible, but technology changed.

    In fact, the Harris government passed the Electronic Commerce Act, 2000 which expressly states that ‘in writing’ includes electronic means in all circumstances, if such means are sufficiently secure (in the receiving department’s view). The act also expressly binds the Crown and authorizes ministries to develop electronic forms, processes, etc. As one of the most frequent instances of government processes requiring written documents, you would have thought the OLRB and unions would have been all over this legislation, but it was ignored. I put it down to the fact that the labour law community focuses on the Labour Relations Act to the exclusion of all else. The law was changed at a far more fundamental level.

    Electronic Union Cards were accepted in BC in Working Enterprises Ltd. (BCLRB No. B67/2016), see http://www.lrb.bc.ca/decisions/B067$2016.pdf

    As far as I can tell, the law in Ontario is identical, but it has yet to be tested. I put it down to the fact that Ontario is so large it is seen as the ‘crown jewel’, so unions don’t want to risk change.

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