by Anna Dueck
by Anna Dueck
Written by Geoffrey Howard and Sebastian Chern
Howard Employment Law
In a dramatic reversal of policy and without consultation, the BC NDP has announced on April 6, 2022 that it will pass legislation that will allow unions to be “certified” and thus become the sole authorized representatives of an entire group of employees based only on showing 55% have signed a union card (known as “card check”). The change will eliminate the longstanding requirement in B.C. and elsewhere that affected employees have a secret vote on whether to unionize.
When they first came to power, the NDP threatened to reintroduce “card check”, which had only briefly existed in BC under a previous NDP government. After appointing three senior labour lawyers to consult on and review this issue and others under the Labour Relations Code, the NDP appeared to accept the conclusion of the Recommendations for Amendments to the Labour Relations Code report that the secret ballot method remain in place.
Scroll forward to the new world of NDP majority government today and the NDP are yielding to the agenda of their core supporters in the labour union movement by introducing “card check”. No attempt was made to “consult” again before introducing this major and controversial change.
What Does Card Check Mean?
Under the incoming card check regime, union organizers can approach employees and sell them on the benefits of unionization, usually when the employer is unaware of the unionization drive thus unable to discuss the merits of unionization. They ask sympathetic employees to sign or take out a union card at no cost. When the union has collected cards from 55% of the employees, it secretly applies to the Labour Relations Board, which only does a superficial check to see that 55% of employees appear to have signed cards. They do not check whether those employees understood the consequences of unionization or have changed their minds. Assuming 55% have signed cards, within days, the employer is told it is unionized and all employees, including those who refused to sign cards or were left out of the unionization drive thus were unaware unionization was even under discussion, learn they now represented by the union. If the cards only show 45% to 55% support, a secret vote is still held.
Once unionized, the employees’ relationship with their employer is transformed:
- unionized employees must deal with the employer strictly through the union e.g. an employee can no longer agree on her own to a revised schedule without union approval;
- all employees, even those who opposed or did not know about the union drive or disagree with the union’s strategies, must pay union dues;
- 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 e.g. for promotions, order of lay-offs and recall. Thus, in a downturn at a unionized business, a recent hire who is more reliable and productive will be laid off before an unreliable poor performer who was hired years ago; and
- employees lose their (usually significant) non-union “common law” severance rights and instead, if terminated without cause, typically only get skimpy Employment Standards minimum notice or pay under the collective agreement.
The Problems with Card Check
Unions point out that under the secret vote system, there is usually a period when the employer realizes union organizing is underway and can try to persuade or even coerce employees not to vote for the union. Outright coercion rarely happens, mainly because in most cases the employer finds out about union organizing too late and the votes are held within days of the union requesting it. Furthermore, employers are under strict rules about what they can say and do before the vote, unlike in the U.S. The sanctions for coercive employer “unfair labour practises” are tough, including “remedial certification” i.e. an order to certify despite a negative vote due to unfair employer influence.
What unions fail to mention is that card check is subject to the following common problems:
- 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 its 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 assess;
- 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 will not tell them their card signing is now a final “vote” on unionization;
- The union does not explain the consequences and costs (i.e. union dues, losing income when on strike etc. of unionization, talking only about higher pay and benefits);
- Although some card signers may change their mind, there is no process for checking on that or allowing them to revoke their cards or requiring Labour Board verification of the employee’s understanding of the consequences of signing the card built into the card check amendments; and
- Peer pressure can sometimes result in some employees signing a card when they are not really supportive of the union or do not understand the consequences just to “go along” or get rid or a pesky organizer. Again, the assumption that they could never be unionized without a secret vote often means they do not appreciate the consequences of signing the card.
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. 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 improbable that a card check system, with all its inherent frailties, is constitutional. After all, the rights and burdens of union membership versus an individual contractual relationship with an employer as a non-union employee are fundamental to our sense of self as workers.
While at the time of writing the card check amendments had not yet come into force, they will very shortly. Both employers and employees who are concerned about freedom of expression and association in the workplace should consider contacting your MLA to express your concerns—particularly if they are NDP.
Employers with even the slightest risk of unionization should be reviewing how to manage the enhanced risk of unionization with experienced legal counsel.
About the Authors
Geoffrey Howard is the founder and principal of Howard Employment Law where he provides strategic and practical advice on employment and labour law matters and represents clients in employment-related litigation.
Geoffrey has extensive experience representing both employers and employees in all aspects of the employment relationship, including employment agreements, termination of employment, and human rights issues such as discrimination and the duty to accommodate. Geoffrey also has considerable experience advising employers on benefit plans, including pension, disability and group insurance coverage and regulatory compliance issues. He advises companies and owners on shareholder disputes arising out of termination of employment.
A senior advisor to multi-national and regional employers in respect of their Canadian workforce, Geoffrey Howard helps clients solve workplace issues in a practical and cost-effective way.
Geoffrey’s clients come from industries ranging from high-tech, health care, biotech, and mining, to travel, retail and professional services. They stay for his expertise in managing relations between employers and non-union employees. He frequently advises on stock options, restricted stock units (RSU), pensions, bonuses, shareholder agreements and constructive dismissals. He also advises and represents clients in disputes over post-employment competition arising from non-compete agreements and restrictive covenants.
Sebastian Chern is an Associate with Howard Employment Law. Practicing in employment and labour law, Sebastian provides strategic and practical solutions and advice for workplace issues to both employers and employees.
He represents clients in employment-related litigation and disputes in the BC Supreme Court and Small Claims Court, the Human Rights Tribunal and the Employment Standards Branch, where he has appeared as counsel numerous times. Sebastian provides cost-effective service at HEL, particularly for employee clients.
Prior to joining Howard Employment Law, Sebastian practiced at Chilliwack boutique civil litigation firm Sorensen Smith, advising and representing a diverse range of clients with employment law problems and claims. He also represented parties in real property, construction, and corporate commercial disputes and litigation.
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