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A Cross Country Update on the Card-Check versus Mandatory Ballots Debate in Canada

October 3 2018

I’m heading to Harvard Law School next week for the Clean Slate Project meetings to do a talk on the state of Canadian labour law, with an emphasis on the laws governing the union certification process.  The idea driving the Project is to imagine what labor law policy might

Harvard Law School's Clean Slate Program Will Re-Imagine Labor Law

Harvard Law School’s Clean Slate Program Will Re-Imagine Labor Law

look like for today’s world if you could start from scratch.  My role will be to discuss how we do things in Canada.   My view has long been that you could develop a strong collective bargaining model for Canada and the US by combining the best of the American and Canadian Wagner models.  I’ve done talks on this idea, but maybe this Project will motivate me to write up a paper.

One of the most significant long-standing labour law policy debates in Canada and the US relates to the process by which the state measures the level of union support.  In the US, the federal National Labor Relations Board has long required unions to demonstrate majority employee support by winning a “certification vote” [mandatory ballot].  In Canada, this issue falls primarily within provincial jurisdiction and so we have a lot of different models.   Historically, Canadian governments (of all political stripes) permitted unions to demonstrate majority support by submitting union cards on behalf of a majority of employees.  The cards indicated either that the employee was a union member or that the employee desired to be represented by the union in collective bargaining with the employer.   This ‘one-stop’ model is known as “Card Check”.

However, in more recent decades, conservative governments began to replace the one-step Card Check model with the two-step mandatory ballot model.  The ballot model requires the union to first submit evidence of substantial employee support (usually 40-45% of bargaining unit employees) in order to obtain a right to a certification vote, which the union must then win in order to obtain the legal right to represent the workers in collective bargaining.

Alberta and Nova Scotia were the first to introduce mandatory ballots, and other provinces later followed suit, including Ontario which introduced mandatory ballots for the first time in 50 years in 1995 under the Mike Harris government.  As a general rule, conservative leaning governments (including the BC Liberal Party and Saskatchewan Party) introduce mandatory ballots and NDP (and often Liberal) governments introduce Card Check when they can.  For example, the minority B.C. NDP wants to re-introduce Card Check now, but it is being blocked by the Greens and the Liberals.

Conservatives prefer mandatory ballots because unions have a harder time getting certified under a two-step model than a one-step model, and Conservatives oppose the expansion of collective bargaining.  The opposite reasoning applies to the NDP (and sometimes Liberals), which supports collective bargaining.  Industrial relations scholars have found that a move from card-check to mandatory ballots can reduce union success rates in certification campaigns by between approximately 10-20 percent.  That is significant and therefore the issue of Card-Check versus mandatory ballot has become highly politicized in today’s very polarized political climate.

I discuss all of this, including the various common arguments presented by the advocates of card-check and mandatory ballots in my Law of Work text.  I’m working on edition two of that book, and so I recently got around to updated the chart that summarizes the use of the two models (in Chapter 39 The Unionization Process).

Here is the revised chart (from Chapter 39 of D. Doorey, The Law of Work: Complete Edition), which I will putting up for discussion at Harvard.

Screen Shot 2018-10-03 at 3.48.08 PMInstructors using the text may want to refer to this version instead of the Table 39.1 in the book, which is now out of date.   It is out of date because four jurisdictions have switched their models since the book was published a few years ago!

They are:

Federal:   Switched from mandatory ballot to card-check after the Liberals defeated the Conservatives.

Alberta:  Recently switched from mandatory ballot to card-check after the NDP defeated the Conservatives.

Manitoba:   Switched from card-check to mandatory ballot after the Conservatives defeated the NDP.

Ontario:   Liberal government introduced Card-Check in three industries–building services, home care and community services, and temporary help–following the Changes Workplaces Review, adding to the construction sector which also uses Card-Check.  All other industries are governed by mandatory ballots.  Almost certainly, the newly elected Conservative government under Premier Ford will replace card-check with mandatory ballots across the board, as I noted in this earlier post.

Therefore, as of October 2018, six of eleven jurisdictions now have card-check union certification in some form  (Unless I have missed another change, in which case please let me know!):  Federal, Alberta, N.B., Ontario, P.E.I., Quebec.  

Jurisdictions with mandatory ballots are:  B.C., Nova Scotia, Manitoba, Saskatchewan, and Newfoundland & Labrador.

 

 

 

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2 Responses to A Cross Country Update on the Card-Check versus Mandatory Ballots Debate in Canada

  1. Wesley Emerson Reply

    October 4, 2018 at 9:35 pm

    I recall decades ago(1982-83)at Professor Harry Arthurs’ Advanced Labour Law seminar when Professor Paul Weiler was the guest seminar leader. We discussed this very issue and Professor Weiler opined one would never see the card check system as the USA loved ballots and democracy. It was a principle that – conveniently, coincidentally or not – benefited the Employer. For a non-scholarly look at anti-certification campaigns in the USA I recommend “Confessions of a Union Buster.” Most of the techniques were presumptively UFLPs in Canada.

    Spoiler alert: the author quits drinking and finds god.

  2. Bob Barnetson Reply

    October 5, 2018 at 1:06 pm

    If I recall the research correctly, there also tends to be a significant reduction in certification applications filed when votes replace card check (and vice versa). LIkely this reflects an lower expectation of success if employers are given time to interfere in employees’ choice.

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