BC NDP government’s “card check” unionization flip-flop raises workplace concerns

While there is no decision yet from the Supreme Court of Canada, given that certification after a secret vote already entails forcing the unwilling minority who voted against unionization to join, pay for and have to live under a union they did not want, it seems unlikely card check is a democratic way to impose unionization on the unwilling

In a dramatic reversal of policy and without any consultation, the BC NDP government introduced legislation on April 6 that will allow unions to be “certified” as a union based only on showing 55 per cent have “signed” a union card (“card check”).

The change will eliminate the longstanding requirement in B.C. and elsewhere that employees decide whether to unionize by a secret vote. Several years ago, an NDP-appointed expert panel recommended against card check. Scroll forward to an NDP majority and it is ignoring that and paying back its union supporters with “card check.”

What does card check mean?

With card check, union organizers need to get only 55 per cent of employees to demonstrate some support for the union by signing a card at no cost. Many sign a card figuring they will still get to vote. When the union has collected cards from 55 per cent of the employees, it applies to the Labour Relations Board (LRB) to be certified. The LRB does only a superficial check of the cards and does not ask the card-signing employees if they understood the consequences of unionization or have changed their minds. Assuming 55 per cent of what appear to be employees have signed cards, within days, the employer is told it is unionized and all employees are told they are now represented by the union. If the cards show only 45 per cent to 55 per cent support, a secret vote is still held.

Once unionized, the employees’ relationship with their employer is transformed, including:

unionized employees must deal with the employer strictly through the union e.g. an employee can no longer agree on his or her own to a revised schedule without union approval;

• all employees must pay union dues, a portion of which goes to political donations, usually to … the NDP provincially;

• the union will negotiate a first collective agreement that may or may not offer better terms of employment but will in every case give much more protection to seniority than to merit; and

• employees lose their (usually significant) non-union severance rights and instead typically only get skimpy employment standards minimum notice/severance.

This is not to say that unionization does not yield benefits for many workers, but only to say that not every employee may think unionization is a good thing and that most do not understand the pros and cons or the consequences of signing a union card under card check. This makes a secret vote so important.

The problems with card check

Unions point out that under the secret vote system, there is often a period when the employer knows organizing is underway and can try to persuade or even coerce employees not to vote for the union. Outright coercion is banned and rarely happens in B.C. these days. In my experience, often the employer learns of unionizing activity only when notified of the vote by the LRB of a vote a day or two later.

What unions fail to mention is that card check is subject to these common problems/abuses:

unions make bold claims to workers about what they will achieve with no contradictory information available from the employers and no real accountability for delivering on those promises. A client of mine ended up seeing a sister company with an immigrant workforce unionized after organizers told employees that they and their family members would get (government issued) visas and work permits if they unionized – a blatant lie that the immigrants were apparently unable to see was such;

• many employees, due to language barriers and lack of understanding of the unionization process, wrongly assume that signing a card just means they will get a chance later to vote in secret, which until now was a correct assumption;

• the union does not explain the consequences and costs of unionization, including union dues;

•when card-signers change their mind, there is no easy process for withdrawing support nor any LRB practise of confirming actual/continued support; and

• peer pressure can sometimes result in employees who don’t really support the union signing a card just to “go along” with others.

More problematically, in the author’s view, card check certification without a secret vote is likely unconstitutional as a breach of the freedom “not to associate” under the Charter of Rights and Freedoms.

While there is no decision yet from the Supreme Court of Canada, given that certification after a secret vote already entails forcing the unwilling minority who voted against unionization to join, pay for and have to live under a union they did not want, it seems unlikely card check is a democratic way to impose unionization on the unwilling.

Conclusion

These amendments will be law soon. Employers, particularly in harder to unionize service sector and higher turnover lower wage businesses, need to realize that card check will increase ease of unionization. By contrast, “decertifying” remains difficult and slow. Employers with even the slightest risk of unionization should be reviewing how to manage the enhanced risk of unionization with experienced legal counsel.

Both employers and employees who are concerned about freedom of expression and association in the workplace should consider contacting your MLAs to express your concerns – particularly if they are NDP.

This article is a general summary and does not constitute legal advice. 

J. Geoffrey Howard is principal and founder of Howard Employment Law.