WDW 244H1F 2003W

1
WDW 244H1F 2003W

• LABOUR RELATIONS
• Professor Frank Reid
• Centre for Industrial Relations
• Week 4
• Certification of Unions under the OLRA
• Course website http//individual.utoronto.ca/fran
  kreid

2
Announcements Oct 1, 2003

• Election today hope you already voted!
• Part 3. Union Certification and Labour Relations
  Legislation
• - weeks 4 and 5
• Midterm Test in two weeks
• October 16, 2003 (Week 6)
• - written in this classroom,
• - One hour, approx 620 p.m. to 720 p.m.
• - Format essay style, may be choice of
  questions
• - See tests for previous two years on course
  website
• Arbitration Assignment
• distributed October 23, 2003 (week 7)
• Due November 20, 2003 (week 11)

3
The Systems Framework

• Outcomes
• Union Recognition and Security
• Collective Agreement
• Due Process
• Strikes / Lockout

Ecological Economic Technological Political Le
gal Social

• Interaction
• Mechanisms
• Certification
• Bargaining
• Mediation / Arbitration

Govt
Goals Values Power History
Mgmt
Union
Feedback loop to Internal / External Inputs
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Outline Wk 4 October 2, 2003

• Why join Unions?
• Union Certification
• Process of Unionization
• Appropriate Bargaining Unit
• Process Legislation Then and Now
• Empirical Evidence
• Unfair Labour Practices
• Decertifications

5
A Brief History of Certification

• 1872 Trade Unions Act passed by Canadian Govt
• previously unions were considered an illegal form
  of collusion among workers
• Unions had to engage in recognition strikes to
  force the employer to bargain with the union
• 1907 Industrial Disputes Investigation Act passed
  by govt of Canada
• Required compulsory conciliation before a strike

6
Wagner Act (1935)

• 1935 National Labor Relations Act (Wagner Act)
  passed by Govt of United States
• Established the National Labor Relations Board to
  determine whether a majority of employees wanted
  to be represented by a union
• If a union was certified the ER was required to
  bargain in good faith with the union
• Prohibited unfair labour practices
• E.g. could not fire employees for joining a union
• 1944 Principles of Wagner Act enshrined in
  Canadian legislation by PC1003

7
Why Join a Union?

• Main reasons for joining a union
• Economic incentives
• Higher wages and better benefits.
• Ensure members are paid fair wages, ie.
  wage-effort bargain.
• Voice in the Workplace
• Unions represent workers interests in dealings
  with management, eg. Improvement in working
  conditions.
• Workplace / Legislative Requirement
• Workers are forced to join union as required by
  their workplace or government statutes.

8
Union Certification

• What is certification?
• Recognition that a particular union is the sole
  bargaining agent for all employees in a
  bargaining unit.
• Who grants certification?
• The Ontario Labour Relations Board.

9
Unionization Process

• The Dissatisfaction Gap
• Persistence and widening of the
  expectation-achievement gap.
• Union Organizing Drive
• Process begins with employees contact union or
  union representatives contact employees.
• Organizers seek employees support within the
  bargaining unit through the signing of membership
  cards.
• Board determines what is an appropriate
  bargaining unit.

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Basic Principles of Certification

• Labour Relations Board will certify a union as
  the exclusive bargaining agent if a majority of
  employees indicate support
• Employer required to bargain in good faith once
  union is certified
• Unfair labour practices prohibited
• e.g. cant fire union supporters
• cant threaten to close if unionized (Wal-Mart)

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Appropriate Bargaining Unit

• Criteria used by the Board
• The wishes of the employer and the union.
• Community of Interest among the employees.
• Nature of work performed
• Conditions of employment
• Skills of the employees
• Organizational structure of the employer.
• The desire not to split the workforce into too
  many bargaining units.
• Separation of office staff and production workers.

12
Recent Modifications to OLRA

• Three major political parties in Ontario
• Liberal Party (center)
• New Democratic Party, i.e. NDP (left)
• Conservative Party (right)
• Three main legislative periods in last 10 yrs.
• up to 1992 Pre-Bill 40 (Liberal Party)
• 1993-1995 Bill 40 (NDP)
• 1996 to 2003 Bill 7 (Conservative Party)

13
Methods of Certification

• Three ways
• Voluntary Recognition
• Card System up to 1995
• Vote System 1996 to present

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Voluntary Recognition

• Simple but RARE.
• Common in the construction industry.
• In the first year, employees can opt out by
  applying to the OLRB.
• Rationale union doesnt represent the majority
  of the employees.

15
Legislative Regimes
Under the Liberal Government
Under the NDP Government
Under the Conservative Government

1985
1990
1995
2000
1993
Pre-Bill 40
Bill 40
Bill 7

1
2
The Card System
The Vote System
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Union organizing drive

• Card support is difficult barrier for union
• organizers are substantial expense for union
• composition of bargaining unit unknown
• no right of access to employers premises
• no list of ee names and addresses
• fear of employer reprisals against supporters
• stressful because ees cannot abstain

17
Certification Before Bill 40

• Domestics and certain categories of professionals
  are excluded from the Act.
• One dollar minimum membership fee required when
  signing a membership card.
• Organizing activity not allowed on third-party
  property.
• Automatic certification if 55 of members in the
  bargaining unit support the union.
• Representation vote mandatory if support level
  was between 45 to 55.

18
Certification Under Bill 40

• Changes to OLRA to facilitate certification
• Allowed part-time full-time employees to be
  certified as a single bargaining unit.
• The one dollar minimum membership fee is waived.
• Organizing activity on their-party property to
  which the public normally has access is allowed.
• Reduced card support for mandatory vote from 45
  to 40.
• OLRB has power to certify union to remedy unfair
  labour practices even in situations without
  adequate membership support.

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Card Based Model

• Applicable to the period up to November 1995
• Pre-Bill 40 up to December 1992
• Bill 40 January 1993 to November 1995.
• Characteristics
• Views unionization decision as between employees
  and union.
• Unions can be certified automatically, i.e.
  without a vote.

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Process Card Based Model

• If gt 55 of the bargaining unit signed cards,
  then the union is certified.
• Rationale to eliminate employer intimidation.
• But (potentially) allowed union intimidation?
• If a certain threshold of support is obtained,
  then vote will be held.
• Pre-Bill 40 45
• Bill 40 40
• Vote takes the form of a secret ballot vote.
• Union is certified if gt 50 of votes cast are
  for the union.

21
Certification Under Bill 7

• The Conservative government repealed most of
• the Bill 40 provisions, specifically
• Certain professionals and domestics are not
  covered.
• Power of OLRB to certify union without adequate
  member support in situations of unfair labour
  practices removed was removed by later amendment.
• Representation vote required in every
  certification application.

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Vote Based Model

• Applicable to the period from November 1995 to
  2003 Bill 7.
• Characteristics
• Remove automatic certification.
• Permits employers opportunity to discuss decision
  with employees, counter union claims.
• Allows employees to express true wishes by
  secret ballot.
• Ensures adequate union support for viable
  collective bargaining relationship.

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Process Vote Based Model

• Union files application with OLRB.
• If gt 40 of unit signed membership cards, then
  vote will be held.
• OLRB holds secret ballot vote within 5 days.
• Union is certified if gt 50 of votes cast
  support the union.
• Once certified, the union becomes the legal
  representative for all employees in the
  bargaining unit.

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A Comparison Card vs Vote
PRE-BILL 40 BILL 40 BILL 7 Seek
EE support Seek EE support via cards via
cards If support If support If support
If support gt 55 gt 45 gt 40 gt 40
Both Pre-Bill 40 Bill 40 Automati
c Secret Secret Secret Certification Ballot B
allot Ballot Vote Vote Vote Certif
ied Certified Certified if support if
support if support gt 50 gt50 gt50
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Empirical Evidence

• Compared to the period 1/87 to 8/90 under the
  Liberals in the Pre-Bill 40 era
• NDP Bill 40 PC Bill 7
• 1/93 to 6/95 11/95 to 5/98
• Certifications
• Applications Attempted 23.6 -19.4
• Success Rate 9.1 -11.9
• Reference Martinello, F. 2000. Union Activity in
  Ontario, Canadian Public Policy, Vol. 26, No. 2,
  p. 17-33.

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Unfair Labour Practices

• The idea behind the prohibition of unfair labour
  practices is that the certification process
  should be free from any undue influence from the
  employer.
• Examples firing the organizer, threat to close
  or to relocate the plant, changing the TCs of
  employment after certification application, etc.
• See the Walmart Case GPT pages 175 177.
• Similarly, unions cannot resort to intimidation
  to compel anyone to join the union or refrain
  from joining another union.

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Decertification

• If no contract concluded in the first year after
  certification.
• Union becomes inactive and ceases to represent
  the interests of its members.
• If the employer goes out of business.
• If employees petition and vote in favour of
  decertification, either to
• Become non-unionized or
• Replace current union with another union.

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Process of Decertification

• Establish support for decertification from 40 of
  the members.
• File application with the OLRB during open period
  (last two months of contract)
• Decertification vote is then held.
• Union will be decertified if the majority of the
  members favour decertification.

29
Empirical Evidence

• Compared to the period 1/87 to 8/90 under the
  Liberals in the Pre-Bill 40 era
• NDP Bill 40 PC Bill 7
• 1/93 to 6/95 11/95 to 5/98
• Decertifications
• Applications Attempted -21.4 32.2
• Success Rate -12.7 3.7
• Reference Martinello, F. 2000. Union Activity in
  Ontario, Canadian Public Policy, Vol. 26, No. 2,
  p. 17-33.