A Union Default Model to Improve Freedom of Association

Written by Professor Mark Harcourt, University of Waikato; Professor Gregor Gall, Visiting Professor, Leeds University; Professor Emeritus Margaret Wilson, University of Waikato

Unions have traditionally had a strong levelling effect on incomes, transferring money from capital to labour and particularly to the low-waged.  Thus, the fall in union membership and collective bargaining coverage over the last few decades has been strongly linked to widening disparities, particularly in the US, the UK, and New Zealand.  Yet, approximately half the workforce in these English-speaking countries says it still wants union representation.  And, if anything, workers now favour unions more than 20 years ago. However, organizing workers is difficult, particularly in the case of many low wage precarious jobs in industries that collective bargaining laws were never intended to reach, including in retail and other service sector work and platform, so-called “gig” work. 

This article proposes the adoption of a union default system to overcome some of these problems.  Below, we outline how this might work in Canada. 

What is a union default?  A union default would default all employees, via an automatic enrolment process, to union membership within a given bargaining unit.  Once the enrolment process was completed, employees would then be free to opt out if they wished.  

Is a union default compatible with freedom of choice?  A union default would recognize the freedom not to associate with a union; workers would not be obliged to stay members, even if defaulted into unions.  More importantly, a union default could be designed to greatly enhance and strengthen the freedom to associatewith a union by making it a lot easier for unions to organise new workplaces.  More about this is revealed below.  

How would a union default work?  A union default could be introduced to Canadian workplaces by subdividing union certification into two phases.  In phase one, a union would recruit at least 10% (or a flat number of workers, whichever is the lower) of a proposed bargaining unit as members.  Once this threshold had been satisfied, the appropriate labour board could then certify the union to bargain collectively on behalf of only membersin the bargaining unit. 

In phase one, the certified union would also be granted default status.  As a result, all workers in the bargaining unit, and any worker hired later, would be defaulted to membership in the certified union. However, each worker would still have a right to opt out of membership, in preference for an individual contract with the employer.  

What would happen if a second union is also able to recruit 10% or more of the same bargaining unit as its members?   It, too, could be certified to only bargain on behalf of its members.  What would happen to the union default then?  The labour board could award default status to the union with the most members in the bargaining unit, likely to be the first union to obtain certification.  

In phase two, a union already certified in phase one could apply to become the sole and exclusive bargaining agent for union and non-union workers in the same bargaining unit. The labour board would then supervise a ballot, with all workers in the bargaining unit entitled to vote. If a majority of those voting supported the idea, the applicant union would then be given sole and exclusive representation rights. 

How would workers be defaulted to the certified, default union? The employer would carry out a simple, standardised electronic enrolment process, established by the labour board for all such situations.  There could be a legal presumption that every worker in the bargaining unit is a union member, until the enrolment process has been completed and the individual worker has subsequently followed another simple, standardised, electronic process to opt out. For example, a worker would receive a standardised message (via mobile phone/email/mail) informing them of their auto-enrolment and a similar later notification of the electronic opting out process (e.g., click on a weblink and fill out a short form). Failure by an employer to comply with the requirements to distribute the notices would be an unfair labour practice.  

Why would employers bargain in good faith with newly certified unions?  Employers and the newly certified unions would be subject to the legal duty to bargain in good faith and would have access to government conciliation. A protected right to strike would apply as per the usual rules in Canadian labour relations statutes, perhaps with the option of first contract arbitration if bargaining reaches an impasse.  

If workers could opt out, wouldn’t many leave the union? In U.S. right-to-work states, where open shops are mandatory, recruiting and retaining members when they can free-ride is extremely difficult.  Why would a union default be any different?  Free-riding is a real concern and it would still happen under a union default model.  However, it would be significantly reduced by the so-called default effect. Past research from several fields (e.g., medicine, marketing, insurance, law) shows that, when an option is set as the default, it greatly increases the chances that particular option will be chosen. In other words, individuals tend to stick with defaults, whatever they may be.  This why the conservative, anti-union Alberta government has opted to require workers to “opt in” to the payment of the portion of union dues spent on “non-collective bargaining” activities.  

People tend to stick with defaults for four main reasons. First, individuals tend to stay with a status quodefault because of the forces of inertia, indecisiveness and procrastination, especially where they are unsure of the costs and benefits of one alternative versus another.  Second, individuals often interpret defaults as norms they should follow:  what is socially acceptable (injunctive norms) or what is preferred by a majority of their fellows (descriptive norms).  Third, defaults are often used as starting reference points for judging the ‘gains’ and ‘losses’ of any particular choice.  Since individuals are much more averse to ‘losses’ (what you’re giving up in relinquishing a particular option)  than attracted to equivalent ‘gains’ (what you’re getting in moving to a different option),  they generally prefer to minimise their ‘losses ‘by sticking with a status quo default. Finally, the time and trouble, or switching costs, associated with making a choice dissuade individuals from doing so and they therefore remain with the default.  Of course, the default effect has, in the past, long worked to induce workers to stay with what is, in reality, the status quonon-union default. 

Would a union default be compatible with industry bargaining? A union default combined with a low threshold of membership support (e.g., 10% or a particular number) would make it much easier to organise entire sectors, especially sectors with lots of smaller businesses and hard-to-reach employees. It would also make it easier to maintain union membership across entire sectors. Labour boards would have to re-visit how bargaining units are crafted to incorporate new principles.  These could include: the preferences of the union (as a freedom of association issue), economies of scale in union servicing, and community of interest across, for example, a shopping mall, a franchise, or a supply chain.  

With private sector union density in Canada falling to about 15%, it is appropriate to consider such a far reaching proposal to increase union density so that unions can once again fulfil their role as ‘swords of justice’ in the labour market and wider society.

Mark Harcourt, Gregor Gall, Margaret Wilson, “A Union Default Model to Improve Freedom of Association” Canadian Law of Work Forum (July 17 2020): https://lawofwork.ca/?p=12874