Wal-Mart and the announcement to close its store in Jonquiere, Quebec is still very much in the news. Reading the news reports, it seems that one of the difficulties that Wal-Mart has is with the labour laws in place in Quebec themselves.
As I understand it, the union was certified (or accredited) based solely upon the signed membership evidence submitted by the Union in support of their application. In other words, as I understand it, there was never a secret ballot vote among the employees in the proposed bargaining unit. In effect, a vote was not required under the legislation having regard to the level of membership support submitted by the Union in support of its application for certification.
The Return of Card Based Certification in Ontario?
The Ontario Liberal Government, under Premier Dalton McGuinty, introduced Bill 144 which would amend, in some significant respects, the Ontario Labour Relations Act, 1995. For a discussion of the Bill 144 changes see my article Liberal Government proposes Labour Law Reforms. One of the proposed amendments is permitting the Unions to elect, in the Construction Industry only, to proceed with their application for certification under either the "card-based" system or the "vote-based" system.
What is card-based certification? Simply put, the Unions' purpose through the organizing drive is to garner support among those that it seeks to represent. They demonstrate this support, most typically, through signed membership cards. In a card based certification system, the cards are submitted to the appropriate labour relations board, along with the application for certification and, if the number of cards exceed a specified threshold, the union is certified as the exclusive bargaining agent for the employees in the bargaining unit. Of course, the employer can contest various issues (such as the appropriateness of the bargaining unit, who is included in the unit, and whether the union has met the membership threshold). But, in a card-based system, the cards are a demonstration of the signatories desire to have the union represent him or her as his or her bargaining agent.
As mentioned, the Liberal's proposed Bill 144, would re-introduce the card-based certification stream into the Construction Industry. Wayne Samuelson, the President of the Ontario Federation of Labour ("OFL") has recently sent a letter to its members calling for a return of the "card-based" certification system in Ontario, generally, and irrespective of the industry or sector. You can access a printable version of Mr. Samuelson's letter here (the attachment to the letter is here).
As Mr. Samuelson notes, card-based certification was something that was in place in Ontario since the 1950's.
Card-based certification was repealed (along with the Labour Relations Act, in its entirety) by the Conservatives when they came to power and enacted Bill 7 (now the Labour Relations Act, 1995). Instead, the Conservative government opted for mandatory representation votes in every case where the union could demonstrate, through signed membership evidence, that 40% or more of those in its proposed bargaining unit wished to become members of the Union.
Arguments on Both Sides
I recall when we had card-based certifications in Ontario, employers balked at it and questioned the "democracy" of such a system where the "true wishes" of the employees were not really tested through a Ministry supervised secret ballot vote. In fact, employers were openly concerned that, once signed, the card was difficult to revoke. There was, in the eyes of some, a tremendous incentive on the part of the Unions to get the card signed and, of the more suspicious types, a concern that they might take some liberties in their zeal to have the employee sign the card.
In a "vote-based" system, the cards are simply used to get the union into a secret ballot vote position, where employees will express their true wishes in the sanctity of the voting booth. Union's do not like the "vote-based" system (and, by implication, like the "card-based" system). In the attachment to Mr. Samuelson's letter, the OFL puts it this way:
Having a card-based system for obtaining a union effectively reduces the temptation of employers to intimidate and coerce employees. To impose a vote, after a person signifies their desire for a union by signing a union membership card, known as a card check, leaves workers open and vulnerable to employer influence and pressure.
Between the signing of a card and a vote, anti-union employers all too often illegally intervene in an organizing campaign to persuade employees not to join a union, at best, and intimidate, coerce, threaten to close down their operation and terminate employees at worst. Far from adding democracy to the process of getting a union, forcing a vote on top of signing a union card functions to inhibit the democratic will of workers to join a union of their choice.
The certification process, in Ontario, currently is as follows:
- The union signs up members (it wants 40% or more support (signed membership cards) of those employees in its proposed bargaining unit as I will discuss in a moment)
- The Union then serves on the employer and files with the Ontario Labour Relations Board its application for certification
- The Ontario Labour Relations Board will review the evidence submitted by the Union to confirm that they have 40% or more support
- The employer has two (2) days to respond to the application (and can make submissions on a variety of issues including the bargaining unit description, the number of employees in the proposed bargaining unit, who is (or should be) included or excluded from the bargaining unit, and whether the Union has 40% or more support)
- If on the Union's information, it has 40% or more support, the Board will order a mandatory secret ballot representation (certification) vote among the employees
- The vote itself will take place on the fifth day after the application was filed with the Board (excluding weekends and days on which the Board is closed)
- An officer from the Board supervises the vote
- Any issues between the Union and the Company are resolved after the vote, through the Board's "mediation" processes or, depending on the issues, a hearing or written submissions
Mr. Samuelson's point, I believe, is that while the vote takes place quickly, after the application is filed, this does not, in any way, address unlawful employer practices between the signing of the membership card or from the time that the employer becomes aware of the certification efforts, and the vote.
He's quite right. The legislation, currently, attempts to address this concern through the unfair labour practice provisions and the remedies that are available to the Board. Specifically, where the employer commits an unfair labour practice, and the results of the representation are likely not to have reflected the true wishes of the employees, the Board has the power to order a second vote along with expansive remedies (such as, for example, requiring the employer to provide the Union with an office on its premises, to meet with employees during working hours, to pay the organizing costs of the union, and to determine the date of the second vote). In other words, the Board, through its remedies, will try (so far as is possible) to "right the wrong".
Furthermore, if the Liberal Government has its way, the Labour Relations Act, 1995 will be amended by reintroducing the "automatic certification" provisions that had been repealed by the Conservative Government in 1998 (largely as a result of a Wal-Mart case, hence the "second-vote" provision is widely known as the "Wal-Mart Amendment").
The Liberal amendment would provide that where an employer, an employers' organization or a person acting on behalf of an employer or an employers' organization contravenes the Act and, as a result:
(a) the true wishes of the employees in the bargaining unit were not likely reflected in a representation vote; or
(b) a trade union was not able to demonstrate that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appeared to be members of the union at the time the application was filed and, thus, get themselves into a mandatory representation vote position under the Act.
Where either of these circumstances exists, the Ontario Labour Relations Board has three (3) options:
- order that a representation vote be taken and do anything to ensure that the representation vote reflects the true wishes of the employees in the bargaining unit;
- order that a second representation vote be taken and do anything to ensure that the vote reflects the true wishes of the employees; or
- certify an appropriate bargaining unit if no other remedy would be sufficient to counter the effects of the contravention.
While, it is correct to say that labour Board's across Canada have used automatic certification quite sparingly to remedy unfair labour practices committed in the certification process, it is certainly not unheard of.
The argument for the return of "card-based" certification is premised, as the OFL notes, on the assumption that the employer will engage in unlawful conduct and commit unfair labour practices. To use the words of the OFL:
To force such workers to go through a vote, with its likely companion employer interference, is to deny many workers access to collective bargaining.
I find such a broad assumption difficult to accept. A review of the Ontario Labour Relations Board cases suggests that most applications for certification are relatively straightforward affairs, which are not marred by unlawful employer conduct. I am confident that there are statistics on this, though I have not found them.
If, my assumption is correct, as I believe it is, then what is the merit of returning to a card-based certification system, when any unfair or illegal employer conduct can be remedied appropriately through the creative use of existing remedies or, if Bill 144 becomes law, through the automatic certification procedures?
The flip side, is that there are very few cases of union impropriety in the organizing phase (ie. in soliciting membership cards), and so, why not bring back the card-based certification system?
A compromise is the free vote. I emphasize free, because for the vote to be truly free, both employer and union must respect the wishes of the employees, and not influence them through "intimidation, coercion or undue influence" (to quote from the unfair labour practice provisions). Where the vote is not free, the Board has, at its disposal, remedies to rectify the unlawful conduct.