Ontario’s OPSEU pushes to reintroduce card-check
But lawyer says system gives unions too much advantage
By Liz Foster
Saying it would close the wage gap between men and women, Warren (Smokey) Thomas is calling for a return to the “card-check” method of certification.
“Unionization narrows the gender wage gap, so making it easier to unionize should make narrowing the gap easier as well,” said Thomas, president of the Ontario Public Service Employees Union (OPSEU).
“The gender wage gap is narrowest in the most highly unionized sector of the economy: The public sector.”
The card-based certification system — commonly referred to as card-check — allows a union to be certified in a workplace based on union membership cards. If a union files membership evidence that it represents more than 55 per cent of employees in the proposed bargaining unit, the Ontario Labour Relations Board (OLRB) can certify the union without a representation vote.
In 1995, the Labour Relations Act implemented a mandatory representation vote system in all sectors. As a result, a union had to prove at least 40 per cent of employees in the proposed bargaining unit were members of the union before the OLRB ordered a representation vote.
Employees participating in a vote through the mandatory representation vote system made their decision whether or not to support the union in secret. If the majority of ballots cast in the representation vote were in favour of the union, the union could be certified.
In 2005, however, Bill 144 — the Labour Relations Statute Law Amendment Act — reintroduced card-check in Ontario’s construction industry.
“Card-based certification in construction makes sense because the work is often mobile and projects are limited in duration, so conducting a representation vote as you would in a regular, non-construction workplace becomes difficult,” said Janet Deline, a spokesperson for the Ontario Ministry of Labour.
Eighty-eight per cent of construction workers are male, according to OPSEU. By implementing card-check in all industries, it would be just as easy for a woman to join a union as it is for employees in male-dominated workplaces, said Thomas.
OPSEU is currently examining its legal options with respect to what it calls the pro-male bias of the Ontario Labour Relations Act.
Ultimately, bringing card-check back to industries across the province would significantly improve the quality of work for all employees, said Thomas.
“The problem with the mandatory representation vote system boils down to one thing, and that’s employer interference,” he said.
“During the time between the announcement of the vote and the vote itself, the employer has ample opportunity to influence the workers’ decision. Employers have been known to use coercion and intimidation during votes to prevent employees from unionizing.”
Because card-check continues to be used throughout Ontario in the construction industry, it would be relatively simple to re-instate the practice in other sectors, said Thomas.
“There is no need to change the way it works. The only change needed is the legislation to make it legal across the workforce.”
However, in implementing card-check on a provincial basis, changes could be made to update the system to recognize technological advances, he said. And allowing employees to sign their cards electronically would further simplify the process.
Ultimately, the change would be beneficial for employers as well as workers, said Thomas.
“On the one hand, employers would no longer have an opportunity to interfere in employee choice as to whether or not to be unionized. On the other hand, employers would be spared the disruption caused by workplace votes.”
Undue pressure by unions
However, accusations of undue pressure have also been levelled against unions, said John Hyde, a partner at Toronto’s Levitt LLP.
“If an employer can get certified simply by the signing of a card, all it takes is for the union or a union sympathizer to put undue pressure on an individual to sign a card,” he said. “There’s already too much misrepresentation in this process.”
The card-based system of certification gives too much advantage to unions, he said.
“It’s a systemic advantage,” he said. “Organizations could secure a 50-plus-one-per-cent threshold for automatic certification without the employer even knowing about it and all they have to do is convince employees to sign membership cards. Often, they subject employees to intimidation or coercion both on and off the job site.”
The construction industry is an entirely different animal, said Hyde, and it should not be used as a template for the reintroduction of card-check in other industries.
“People move often from employer to employer, so you look at who’s employed as of the application date as having a right to be involved in the vote. You’re looking at an employee group that is very transient. It’s a different animal.”
Ultimately, the very nature of card-check goes against the democratic values unions extol, he said.
“The bottom line is it’s undemocratic. You think about these unions and their constitutions. They talk about ‘essential democratic participation.’ Why would unions now say, ‘We don’t want the democratic process,’ i.e. a vote system? How can unions legitimately support card-check, which is absolutely prima facie undemocratic? Card-check is, by its very nature, inconsistent with those democratic values.”
System under review
The card-based system of certification is currently under review in Ontario, said Deline.
“The Ministry of Labour is currently conducting a review of Ontario’s system of employment and labour standards to consider reforms that reflect the realities of modern economy,” she said.
“Card-based certification is one of the many issues being examined in the review.”
The Changing Workplaces Review is considering how the Labour Relations Act, 1995 and the Employment Standards Act, 2000 could be amended to best protect workers while still supporting businesses in a changing economy. It is being led by two special advisors: Michael Mitchell — formerly of Sack Goldblatt Mitchell — and John Murray — a former justice of the Ontario Superior Court.
They conducted public consultations in 2015, travelling to 12 locations in the province to listen to public testimony and receive written input from organizations and individuals.
The review is much needed, said Thomas.
“On a broader level, labour laws in general need to be strengthened,” he said. “Unions are the key to creating an economy based on shared prosperity.”