Newfoundland & Labrador Introduces Unionization Card-Check Model

June 25 2012
Newfoundland & Labrador’s Conservative government is amending their labour laws.  Here is Bill 37, An Act to Amend the Labour Relations Act, which I believe just passed Third Reading, meaning it is on its way to becoming law.  Here is a nice chart summarizing the changes.  Comments from those with expertise in N&L labour law (which is not me) would be greatly welcome.  Here’s what I can distill from reading the Bill.
Some of the revisions appear to move N&L closer in line with other provinces.  For example, section 83.1 of the Act is amended to introduce the final offer ballot option, the right of an employer to request that their final offer be put to the membership in a vote supervised by the state, but this can only be done once.  This mirrors the present Ontario law, and the law in other provinces.  Section 81 is amended to introduce potential access to first contract interest arbitration, on the labour board’s discretion.  Section 25 is amended to confer on employers the right to engage in non-threatening, non-coerceive speech.  Section 123 of the Act is changed to grant the labour board extended remedial powers to deal with unfair labour practices, including breaches of the duty to bargain.
There is an interesting new requirement for employers and unions to introduce a “labour management committee” upon the request of either party (Section 85.1).  Once the committee is formed, a new clause is read into the collective agreement that says the following:

At the request of either party the parties shall meet at least once every 2 months for the purpose of discussing issues relating to the workplace in order to promote effective communication between the parties bound by this agreement.

The idea here, as I understand it, is to improve dialogue between workers and employers on ongoing basis.  No doubt somewhere down the road there will be litigation about what “issues relating to the workplace” means, and whether ‘discuss‘ includes any substance beyond nodding along, in the same way we are now tied up in endless Charter litigation about the meaning of the “duty of an employer to consider employee representations in good faith”.  My recollection is that this was something proposed in the Report of the Voisey’s Bay Industrial Inquiry Commission from 2011.  It will be interesting to see if this concept gets picked up elsewhere in the country.
Not doubt the most controversial revision is the introduction of ‘card-check’ based certification when the union submits evidence that 65% or more of employees in the bargaining unit wish to be represented by the union in collective bargaining.  In the case, no certification ballot is required.  This was the approach to testing employee wishes throughout most of Canada until conservative provincial governments began introducing mandatory certification ballots in the 1980s and 1990s in order to try and slow the spread of collective bargaining.  By introducing card-check certification, N&L joins the Federal jurisdiction, Quebec, Manitoba, and the construction industry only  in Ontario (!?).   It’s interesting that it is a Conservative government in N&L.  The new legislation provides:

47. (1) Where an application for certification is supported by at least 65% of the employees in the unit at the time of application and the board is satisfied that the other requirements for certification under this Act have been met, the board shall certify the union as the bargaining agent for the employees in the unit.

Studies indicate that success rates in union organizing campaigns increase somewhat under a card-check system, but why that is is hotly contested.  Proponents of a card-check model argue that this reflects that fact that under a card-check, the ability of employers to campaign against unions and make threats is curtailed, so that card-check is a safer model for testing employee wishes free of employer interference. Opponents of a card-check argue that it is because, under a card-check model, union organizers are running around threatening and tricking employees into signing on.  That’s a theory, but there is precious little evidence to support it.
For my part, I doubt that tricking and threatening workers into signing cards is an often-used strategy by unions.  For one thing, threatening workers is illegal, and could result in the union’s application being thrown out in its entirety, which would not win the union organizer any kudos at the union’s awards dinner.  So there is a built in disincentive for organizers to threaten workers as a tool for getting signatures on union cards.  Secondly, and more importantly, there is little benefit to a union in making outrageous promises to employees to get them to sign a union card, only to then enter into bargaining and be able to obtain none of the things promised.  That will almost certainly result in the union being decertified.  Remember that all that being certified gets the union is a chance to try and bargain a collective agreement that the employees will support.  Part of getting that to happen involves keeping the employees’ expectations at a reasonable level.  The real test for the union comes when they have to try and sell a first collective agreement to the membership with the hope that the workers will see value in what the union bargains.  If the union can’t do that, then having been certified was just a waste of resources and reputation for the union.
Anyhow, we will have to see how things evolve in Newfoundland & Labrador.  Don’t expect some great surge in unionization there because of these laws.  The effect of tweaks in labour laws like this are never as dramatic as those engaged in the debates suggest.

What do you think of this new requirement for employers to create a Labour Management Committee upon request by the union?
Do you like the idea of a card-check option when 65% of employees sign a document saying they would like to be represented by a union, or should the state insist on a ballot no matter what level of support the union documents?