Overcoming legal barriers to fair labour practicesParkland Institute 2015 Conference, 22 November 2015
Bob Barnetson,
barnetso@athabascau.caHey, I’m Bob and I teach labour stuff at Athabasca University. What I’m going to talk about today are changes to Alberta’s labour laws that should help reverse declining union density in Alberta. As most of you likely suspect, Alberta has the lowest rate of unionization in Canada at 22%. And, in the private sector, Alberta union density is actually only 11%.
Union density matters for lots of reasons. Workers who are union members tend to have better lives. They earn more money. They have better benefits. And they are less vulnerable to capricious employers.
And jurisdictions with high levels of unionization tend to see relatively small wage differences and fewer instances of precarious work. These are important issues in Alberta, given the huge gap between the earnings of men and women.
More philosophically, union density is a fair measure of workers’ abilities to exercise their associational rights—the right to act in concert with other workers to better their lives. That’s a right that’s protected in the Charter.
One of the interesting things about union density is that about a third of non-unionized workers say they would like to be in a union. But—for lots of reasons—aren’t. What this means is that there is a large untapped market for union membership.
One factor that contributes to Alberta’s low union density is its regressive labour laws. These laws reflect the overt hostility of the Social Credit and the Conservative government towards workers and unions.
So what I’m going to do in the next 15 minutes is outline five ways that the current government could make it easier for workers to exercise their associational rights by changing the Labour Relations Code—changes that should increase union density. These reforms include card-check certification, first-contract arbitration, remedial certification, sectoral bargaining, and minority unionism.
I’m happy to take questions as we go but there will also be time for questions at the end. That sound alright?
Card-Check CertificationCanada’s current labour relations regime is based upon the US Wagner model. Basically the Labour Board is responsible for certifying a union as the official bargaining agent for a group of workers.
Unions can get certified in two ways. Alberta requires a mandatory vote of the workers that happens about 10 days after the union files its application for certification with the Labour Board.
Other jurisdictions allow a union to be certified solely based on a majority of workers signing union cards—that is to say, there is no vote required. This is called card-check certification.
Up until 1977, all Canadian jurisdictions used card-check certification. Presently, though, card check operates only in Quebec, PEI, Manitoba and in Ontario’s construction sector.
The evidence on card-check certification is really clear: its results in more organizing drives by unions and more successful certifications.
The most robust analysis is out of BC. BC moved away from card check to mandatory votes in 1984. This change resulted in a 50% reduction in the number of organizing drives and union success rates also declined by 19%.
BC returned to card check certification in 1993 and the number of organizing drives increases (for a time) and success rate of those drives jumped by 19%. Other studies show basically the same thing.
The reason unions run more organizing drives and are more successful under card check is that it card check limits the opportunity for the employer to put a chill on an organizing drive.
What this means is returning Alberta to card-check certification should increase both the amount of organizing in Alberta and its success—both things that will drive up union density. This is kinda of a no brainer.
Remedial CertificationIn addition to card-check certification, the government of Alberta could change the law to allow the Labour Board to grant automatic certification when employers significantly interfere with union organizing campaigns.
Remedial certification is necessary because up to 80% of employers overtly and actively resist union organizing efforts. This employer interference profoundly impacts workers’ ability to exercise their associational rights free.
For example, when employers engage in unfair labour practices—which is a subset of all forms of resistance—the success of certification drives drops by 14%. Remedial certification eliminates the incentive for employers to fool around because, if any employer pooches the vote, they’re gonna get certified anyhow. Ontario’s experience suggests having remedial certification significantly reduces unfair labour practices during organizing drives.
Now Alberta’s Labour Code currently allows the Labour Board to remedially certify a union. But that certification has to be confirmed by a vote of the affected workers. Since the purpose of employer interference is to pressurize workers into voting against the union, conditioning remedy on a likely poisoned vote is pretty nonsensical.
First-Contract Arbitration First contract arbitration is another way that the government could also enhance workers’ ability to exercise their associational rights.
Under first-contract arbitration, if a first round of collective bargaining reaches impasse, either side can apply for resolution via arbitration, rather than being forced into a strike and/or lockout.
The need for first-contract arbitration reflects that some employers will stonewall the union during the first round of bargaining in the hope breaking the union. Basically, the employer uses the first round of bargaining to refight the certification vote that it just lost.
Now the purpose of collective bargaining is actually to reach a mutually agreeable collective agreement—employer reps might want to write that down—not to re-fight the certification campaign. And first-contract arbitration addresses inappropriate employer behaviour by eliminating the incentive to stonewall.
First-contract arbitration is available in the majority of Canadian jurisdictions. Experience (particularly in British Columbia, Ontario and Quebec) suggests its availability so reduces employers’ incentive to stonewall unions that first-contract arbitration is rarely invoked. Instead, employers bargain like they are supposed to.
Sectoral BargainingThe final change Alberta could make to the Wagner model is expanding sectoral bargaining. Sectoral bargaining allows a union to negotiate a single contract that covers multiple worksites and/or employers. When new worksites or employers are unionized, they become subject to the master agreement.
Sectoral bargaining addresses the challenges of organizing small workplaces. Organizing and then subsequently servicing a unit in a small workplaces is a relatively high-cost undertaking (for both the union and the employer).
In addition to those higher costs, there is a lack of organizational distance between workers and employers in small enterprises that reduces the anonymity of union supporters. This makes organizing drives in small workplaces riskier for workers and more prone to failure.
These are important problems because 98% of all employers have fewer than 100 workers and small enterprises employ two-thirds of private-sector workers.
Most provinces (including Alberta) use sectoral unionization in the construction industry, where often employers are small and work is transitory. Quebec’s labour legislation also provides for decrees that extend provisions of collective agreements across an industrial sector, such as the automotive services sector in Montreal.
To date, there has been no research I could find about how sectoral bargaining affects unionization rates. Mostly likely that’s because there have been no “natural experiments” to observe. But the logic of sectoral bargaining is really compelling.
Allowing unions to negotiate multi-employer agreements reduces the costs associated with organizing small workplaces—so there will likely be more organizing drives. And combined with card-check certification provisions that reduce the risk of certification to workers in small workplaces, sectoral bargaining should increase the ability and willingness of these workers to organize.
Minority UnionismSo far, I’ve talked about ways to improve the existing model of labour relations. If the government wanted to look beyond Wagnerism, it might well consider minority unionism.
Under the current Wagner system, unions are organized on the principle of exclusive majority unionism. Basically, a union has to be selected by a majority of workers in a bargaining unit to represent those workers.
One effect of that requirement is that there tends to be a gap between the demand for union representation and workers’ access to it. For example, some workers will want to be represented by a union but they won’t be able to convince a majority of their colleagues to go along with that so the union supporters will remain non-unionized. That dynamic explains, in part, the union representation gap I mentioned at the beginning.
Some academics suggest that legislation allowing only exclusive majority unionism may actually be unconstitutional because those laws deny some workers any way to meaningfully exercise their freedom of association.
An alternative to exclusive majority unionism is some form of minority unionism. Minority unionism allows unions representing less than a majority of workers to negotiate and administer collective agreements for those workers that they do represent.
This allows workers to meaningfully exercise their associational rights even when they can’t achieve certification under the Wagner model.
Minority unionism also allows unions to organize workers at lower cost and lower risk. If a union doesn’t think its going to win a certification drive, it might choose to organize a unit on a minority basis. And worksites organized in that manner could then be converted to certified worksites in the future.
Minority unionism might legislatively build upon provisions in the US National Labour Relations Act that protects persons engaged in “concerted activity” for the purpose of “mutual aid or protection.” These concerted-activity provisions would extend protection to non-unionized workers, such as those workers involved in the recent Fight for 15 campaigns. At present, these protections are not available to Canadian workers—unless they are trying to certify a union.
DiscussionSo what are the politics of changing Alberta’s laws to make it easier for workers to exercise their associational rights?
The least controversial changes entail strengthening workers’ abilities to unionize under the Wagner model. For example, card-check certification is a well established process which significantly increases the number of organizing drives and their success rate.
Employers will likely oppose card check by spuriously arguing that it is an undemocratic process because there is no vote. Politically, one way to undercut that criticism is to make the threshold for card-check certification a bit higher than a simple majority. Manitoba, for example, uses 65% as the threshold.
The politics around minority unionism are likely to be much more interesting. Some unions may see legislated minority unionism as threatening, both to their existing monopoly status and their method of operating.
Presently, the only protected way for workers to work in concert is via certification. There are no protections for workers acting together unless they are trying to form a union. This drives workers who want to better their working conditions towards established unions.
Minority unionism would lower the cost of entry for new worker organizations and increase the power of grassroots unions such as the Wobblies. I would think that would be pretty threatening to established unions that have a virtual monopoly on representation under the Wagner model.
Unions that engage with minority unionism will also need to cope with the free-rider effect. That’s to say, the majority of workers in a workplace might well receive most of the benefits achieved by the members of the minority union (because employers typically standardize pay and benefits) without contributing to those efforts. That could place a significant strain on union resources and, I think, would also be threatening.
Finally, unions typically have to internally navigate a tension between their espoused beliefs (i.e., everyone should be organized) and the realities of resource constraints—that it just isn’t economical to organize everyone.
At present, most Alberta unions have an urban-industrial bias. Basically, most of their members work for large, often urban, employers whose don’t aggressively resist the union. There are exceptions, but the general principle seems to hold and leads to economies of scale in terms of representation.
The process of certification under the Wagner model helps to constrain the number of organizing drives for uneconomical bargaining units. Few of these workplaces will ever be certified.
But minority unionism allows for self organization. And successfully self-organized minority units are likely to eventually seek certification in order to gain power in the workplace and access to greater resources from an existing union.
So the question is how many uneconomical bargaining units will unions take on before they starts to feel the pinch? And how would a union reconcile the tension between its espoused beliefs and the realities of union resource limits? That tension creates a profound political and moral quandary for union leaders.
These kinds of considerations may well affect the degree of support the government might receive from organized labour for minority unionism and, thus, the political viability of that option.
So those thoughts bring me to the end of my talk. And I’d be happy to take questions or speeches disguised as questions.
-- Bob Barnetson
