“When you are threatened and interrogated because you stood up for your rights, it only confirms why you wanted a union in the first place”

-Erwin Espinoza , fired worker in Queens New York

 

There is so much misinformation and ignorance about unions.  Let’s look at the reality for workers trying to form a union since that is one of the flashpoints in the debate about the bill recently introduced in the B.C. legislature – Bill 30: ‘Labour Code Amendments 2019.’ Much of the debate concerned the card check system versus secret ballot processes for organizing a workplace .

Under the card check system, if an organizing drive is successful in signing up a certain percentage (it ranges from 50-60%), of workers, then there is an automatic certification and the union is recognized as the bargaining agent. This is standard practice in most provinces and prior to the 1980’s was standard practice in every province.  When I say automatic it is not necessarily quick, as employers will go the Labour Board to contest who is an employee and who is not, and whether or not the workplace is an appropriate bargaining unit. During that time period employers may try to pressure and coerce workers, who have signed a union card, into revoking their signature.

Under the secret ballot system even if a union signed up 100 percent of the workers there would still need to be another vote. Under the present legislation the election, with a secret ballot, would occur within ten working days. While two weeks is relatively fast compared to other jurisdictions, employers can and do engage in legal activities ranging from holding ‘captive audience’ meetings either in a group or one on one, distribution of anti-union material, promising wage increases or improved benefits  etc.  They can also engage in illegal activities like firing or laying off union organizers, disciplining union supporters in a discriminatory manner, threatening to close the business, infiltrating union organizing committees and supporting with money or materials anti-union workers, among other activities.

Some will argue that employers have a legitimate right to engage in all these activities as it is their private business. More reasonable individuals may argue that these are rare instances and that there is government legislation in place to prevent the worst abuses.

However these are not rare instances as anyone who has been involved in a union organizing drive can tell you. There is a reason that organizing drives are conducted in secrecy and why unions favour a card check system.  Most employers will and do use every tool they have to avoid sharing any power in the workplace with workers and their unions.

Statistics from a variety of Labour Boards both in Canada and the US back up anecdotal information. In BC between 1990 and 2007 there were 197 complaints filed against employers and 152 were settled in favour of the union members. 90% of those cases dealt with unlawful communication or termination of a worker.  According to a study out of Cornell University by Kate Bronfenbrenner of unfair labour practice complaints filed with the U.S. National Labor Relations Board,  in 57% of cases employers threatened to shut down the plant, 47% involved threats to cut wages and benefits, and 34% involved fired workers.

There are a number of stories in the recent past of how far companies will go.  In 2015, 100 workers who had organized at Sears in Belleville were all laid off as a result of “restructuring”. Walmart closed down its Jonquiere store back in 2004 rather than negotiate with its newly unionized workforce. It took 10 years and a Supreme Court decision but eventually the 190 workers won their case. In this case ‘won’ means they received some monetary compensation.

As the Walmart case illustrates, even if you win it is often too late. In most cases even if the employer has proven to have engaged in illegal activities the remedy is ineffectual. In some cases a second vote will be ordered but by then the damage is done and most workers will be reluctant to stand up for their rights again. For fired workers it may take 1-3 years to get their case heard and then in most cases they simply win their back pay.

Workers in a non-union work environment who have become so disenchanted with how they are treated, and contact a union about organizing their workplace, demonstrate real courage. While they won’t be murdered like in Columbia or the Philippines, they face real risks as illustrated by the statistics and stories cited earlier. Many of these workers are young or new immigrants, unaware of their rights. Being able to belong to a union is a Charter right, so it is incredibly important that governments get the legislation right.

 Bill 30 is the result of a report issued by the Labour Relations Code Review Panel, and discussions between the NDP and the Green Party. There are a lot of improvements in the bill but they are for the most part pretty modest.  On the issue of ‘card check system versus secret ballot’ the Panel split with two of the three panelists writing in favour of the secret ballot option. The Green Party threatened to vote against the whole bill unless the secret ballot was retained.  Thus the secret ballot option was retained.

There was a lot of posturing in the Provincial Legislature about democracy and the secret ballot. This is what the Panel had to say. ”While secret ballot votes are integral to our democratic political system, we recognize that certification votes occur in very different circumstances than political votes. Certification votes occur in the context of the power imbalance between employers and workers in the workplace. Employers control the operation of the business, have the right to fire employees and can curtail or close the business. Unlike political votes, Section 7 of the Code limits unions’ ability to communicate with workers during working time. Employers, on the other hand, have an unrestricted ability to do so throughout the work day. Political candidates have voters’ lists while, in the certification context, unions have limited information to determine the bargaining unit constituency”

It will now be incumbent upon the Government and the Labour Relations Board to ensure that the changes in Bill 30, which are meant to limit employer interference, are enforced and that remedies such as automatic certification and First Collective Agreement arbitration are used when employers violate the Code and workers’ right to form a union. Hopefully the Board and the Government will have as much courage as that new union member who just signed a union card.

 

Brian Charlton

Columnist, Tide Change