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
look like for today’s world if you could start from scratch.
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.
Nova Scotia (in 1977) was the first to introduce mandatory ballots, followed by B.C. (1984) and Alberta (1988), 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 Conservative government. As a general rule, conservative leaning governments (including the BC Liberal Party and Saskatchewan Party) introduce mandatory ballots and NDP (and sometimes Liberal) governments introduce Card Check. 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 or Chapter 8 of the special Industrial Relations version).
Instructors 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: The 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. However, within months, the newly elected Conservative government reversed the changes so that Ontario is back to mandatory ballots in every sector except construction. We will have to wait and see whether the Conservatives will switch to votes in construction. Ideologically, we would expect them to do so, since they argue that only votes are reliable. On the other hand, some construction unions (including the Labourers’) have been sucking up to the Conservatives to encourage the government to look the other way.
To conclude, as of December 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 (in construction only), P.E.I., Quebec.
Jurisdictions with mandatory ballots are: B.C., Nova Scotia, Manitoba, Saskatchewan, and Newfoundland & Labrador.