In April, the British Columbia government introduced legislation that would change the Labour Relations Code and allow automatic certification in union organizing campaigns. This change would make it much easier for unions to become the legal workplace representative for employees. The usual pro-business pro-management organizations – Chambers of Commerce, the Canadian Federation of Independent Business, the Business Council of BC – are complaining that this change would “weaken the democratic right for workers to exercise choice through a secret ballot”. The Business Council has also sent a letter to BC Premier John Horgan with a lengthy list of complaints about the legislation’s potential impacts. And the “non-partisan” Fraser Institute has called the proposed legislation “unfair to workers”.
At best, these statements are misleading. At worse, they reflect an implicit belief that unions can only hurt businesses’ operations and profitability – a belief which is also highly inaccurate.
To understand why these statements are so troubling, it’s useful to know what automatic certification is. When a union conducts an organizing campaign in a BC workplace, workers who want to join the union sign a membership card. The union needs at least 45% of the workers in a workplace to join before the union can apply for certification. Certification is the legal recognition of the union as the employees’ workplace representative. After certification, the union represents employees’ issues and concerns to management, and bargains with management to reach a collective agreement that sets the rules for the workplace.
BC law allowed automatic certification in the past. But under BC’s current labour legislation, after a union has acquired enough support to apply for certification, the Labour Relations Board holds a secret-ballot vote – the “representation vote” – in the workplace. If a majority of workers (with “majority” defined as 50% + 1) vote to have the union represent them, then the certification is granted.
Under the proposed legislation, if a union signed up more than 55% of the workers, then certification would be automatically granted, without holding a vote. If the union signed up between 45% and 55% of the workers, the vote would be required and a majority would have to support the union for certification to be granted. Verifying the level of workplace support for the union involves reviewing all the membership cards that have been signed – for example, to make sure that that someone signing a card is an employee – so automatic certification is also called “card check” certification.
Here’s some of these organizations’ specific criticisms of BC’s proposal for automatic certification, and here’s why those criticisms are wrong.
- The 2018 expert panel review of the Labour Relations Code, commissioned by the government, “explicitly rejected card check”.
Not quite. The recommendation (on p. 17 of this report) was that “[t]he secret ballot vote be retained providing [my emphasis] there are sufficient measures to ensure the exercise of employee choice is fully protected and fully remediated in the event of unlawful interference.” Additionally, one of the three experts on the panel presented a dissenting opinion, stating that “employees should not be required to reconfirm their decision to join a trade union by voting. Card check certification should be restored.”
- “Workers also have the right to make this decision in a manner that is free from influence. The secret ballot is essential to protecting that right.”
No, it isn’t. Workers can make their decision by signing membership cards. Most union organizers are also very careful to keep the identities of the signers as confidential as possible, to avoid retaliation from anti-union managers or employers.
It’s also important to remember that the proposed BC legislation would not completely eliminate the secret-ballot vote. The vote would still be required if the union obtained support from more than 45% but less than 55% of the employees in the workplace. The vote would only be eliminated if more than 55% of employees signed membership cards to indicate they wanted union representation.
- “Card check clearly violates basic democratic norms.[…]This is why virtually all elections in modern democracies are held by secret ballot, protecting individual privacy.”
Two US labour law professors have called this kind of comparison “apples to oranges”. They explain that
“[i]n a political election, both candidates get to speak directly to voters, and then only if the voter is interested in listening to the candidate. In a [certification] election, the employer can keep nonemployee organizers off the premises, while requiring employees to listen to anti-union speeches and fire any employees who do not attend or who publicly disagree with the message. Such asymmetry would not be tolerated in politics, yet this is the standard in [certification] elections. The analogy between industrial democracy and political democracy does not work.”
(So-called “captive audience meetings” are not permitted in Canada, and firing employees during a workplace organizing campaign for supporting the union is also illegal, although it happens.)
- “When employees had the choice of a private anonymous vote, their support for unionization was markedly lower than under card check.”
Hmmm, why would that be? The answer is consistent across years of data and across multiple studies. It’s not because the evil union has coerced unwilling employees into signing membership cards, and the employees can only express what they really feel in the secret-ballot vote. It’s because employers – not unions – intimidate employees after the application for certification is filed and before the vote is held. That effect has been found in studies using data on certifications from the US, from both public and private sector US certifications, from across Canada, and from BC. One of these studies found that “the more time available to the employer [between the certification application and the secret-ballot vote], the more devastating its suppression tactics will be” and that “penalties for illegal employer coercion are largely compensatory, and management incurs few costs beyond what it would have incurred otherwise”. In other words, when employers have the opportunity to intimidate employees prior to a secret-ballot vote, and when they perceive minimal consequences for doing so, they take that opportunity.
Let’s be clear. The real reason these organizations are opposed to automatic certification in BC is not because they’re defending democracy or workers’ rights. They’re opposed to automatic certification because they’re opposed to unions, and automatic certification increases the chances that workers will unionize.
I sincerely doubt that every single employer and business represented by these organizations is anti-union, but those that are should think about this. Treating unions as sinister outsiders is a mistake – Starbucks in the US is currently discovering how ineffective that strategy is. Unions are the voices of their workers, and unions and employers have common interests – neither will do well if companies shut down and workers lose their jobs. Working with unions, rather than against them, truly demonstrates respect for workers and for democracy.