Many Canadian provinces have in recent years transitioned to an expedited union certification vote system. Votes typically take place within five or 10 business days of a union application.
From the perspective of Canadian employers, this is better than the previous “card check” system that was in place in most jurisdictions and is still in place in some (such as the federal sector). But this does not mean that the expedited vote system in Canada is satisfactory.
There have been serious problems relating to the fairness of union certification votes and allowing for informed decision making. Never mind allowing for employers’ ability to protect their legitimate business interests.
This expedited vote procedure has also produced a high rate of success for unions. In Ontario, for example, during the three-year period from 2009-10 until 2011-12, union applications for certification had about a 70 percent success rate. In British Columbia, the union success rate hovered between 60 percent and 70 percent from 2010 to 2013.
Here is how the process basically works, again using the Ontario model as the example. (Each province and territory, and the federal government, has its own, specific rules.)
On the day a union files an application for certification with the Ontario Labour Relations Board (OLRB), it also notifies the employer by fax or hand delivery. It may use any fax number for the employer that is on record. It need not verify whether the fax machine is attended or whether anyone actually receives the documents.
The employer is required to immediately post notices of the application so that it is brought to the attention of the employees. Of course, if the employer’s managers don’t actually see the application immediately, the posting of notices is, as a practical matter, sometimes delayed. In any event, the first notice does not indicate the actual date and time of the vote.
The employer must then decide and declare its position on the makeup of the bargaining unit and the appropriate exclusions within two business days of “receipt” of the application. It must also provide employee lists within that time frame to both the OLRB and the union.
The OLRB then decides on the voting constituency, even if there are serious disputes about the makeup of the bargaining unit. That will usually be the broadest constituency either party proposes, with disputed ballots segregated to be dealt with later. The OLRB sends notices to be posted in the workplace, usually on the third business day after the application, advising employees of the date, time, and location of the polling station[s]. The vote almost always takes place on the fifth business day following the application.
The employer thus effectively has four working days, at most, to try to communicate with employees.
The timeline is equally hard on employees. They may not have been active in the organizing campaign. They must catch up in their understanding of the issues and the significance of their choice, as well as the procedures involved. They have almost no time to intercede.
These pressures are evident in the case law. Employers and employees have often sought an extension of the voting period or have objected to the outcome of a vote in which notice was thought to be inadequate. But they have rarely been successful.
The statutory procedure reflects a policy choice in favor of quick votes and limiting the opportunity for debate. The LRB of British Columbia, which has a 10-day time frame, describes the policy rationale this way in its Guide to the Labour Relations Code: “This short time frame minimizes the possibility of undue influence from the employer or the union.”
LRBs will only exercise their discretion to extend the five-day campaign period in extraordinary circumstances. The OLRB has noted that the statutory procedure contemplates that a full opportunity to participate may not always be available. It is “entirely normal” to expect that many employees will be absent on the date of the vote. Said the OLRB in one case involving a large Toronto hospital, Mount Sinai Hospital (1997):
“All this is entirely normal and, if the statutory provision is to mean anything at all, it is not something that in itself would cause the Board to determine that a five day vote would be inappropriate notwithstanding the fact that such employees would likely lose their access to the representation vote.”
The following two decisions from Ontario provide further indication of the problems encountered by employees and employers in a highly expedited process:
- In Pembroke Public Library (2012 Carswell Ont 9580) the employer requested that the time for the vote be extended from five to 10 business days to enable it to retain counsel, review documentation, and assemble a quorum of its directors during the summer vacation period. The OLRB concluded that the reasons given by the employer did not merit deviation from its general practice.
- In Sisters of Charity of Ottawa Hospital (1999), an intervening union objected to the result of a vote on the ground that less than 24 hours’ actual, written notice had been given of the vote. Approximately 250 to 300 employees were simply not at work between the posting of notice of the vote and the balloting. Only 52 percent of eligible employees voted. The OLRB dismissed the objection and confirmed the result of the vote. While it conceded that notice to employees was flawed, the OLRB found that the employees had received sufficient notice from an earlier OLRB document and union literature that had both correctly forecasted the date of the vote.
American employers have been accustomed to a reasonable degree of involvement in the certification process. This has included a reasonable period to communicate their message. In contrast, the Canadian approach, whether card check or expedited certification vote, accords the employer a limited role in the process. Importing the design features from the Canadian model is likely to have the same effect. The employer largely becomes a bystander.
Employees’ rights are sacrificed at the same time. But the unions win more often.