From labour lockouts to unfair practices – how legislation changed the face of unionization
With union action seemingly happening every other day now, Canadian employers are navigating a challenging environment. The current mood, inspired by government policies, seems to have fostered a pro-union atmosphere – one which could keep HR leaders busy at the bargaining table.
Speaking to Matthew Certosimo, partner at Borden Ladner Gervais, he says that changes to the labour laws continue to impact the overall Canadian employment environment – and they stem from the US.
Implementation of the Wagner Act
“It's important, at least from my perspective, to keep in mind the context of the origins of the North American model in the US was the adoption of the Wagner Act in 1935,” Certosimo says. “That ushered in a whole new era of labour relations in North America. Before this, there was significant labour disruption, work stoppages, lockouts, unfair labour practices – it had all the makings of Marlon Brando’s On the Waterfront.”
However, with the adoption of the Wagner Act came a five-part model designed to achieve labour peace. Employees had the right to join any union of their choice, they could bargain effectively through that union, employers had a duty to bargain in good faith with the employees, and union employees had a right to freedom from coercion, interference and unfair labour practices.
“Furthermore, there was a new thing called the National Labour Relations Board to enforce the law,” says Certosimo. “More importantly, perhaps, no strikes or lockouts, no work stoppages were permitted during the life of a collective agreement. So, the theory was we achieved labour peace through the regulation of the labour management relationship during the life of the collective agreement, with the economic power of the respective parties after the expiry of a collective agreement to act at the ultimate check against workplace chaos.”
Pendulum of changing public policy
An understanding of this Wagner model, as Certosimo says, is fundamental to understanding North American labour relations – mainly because Canada adopted the tenets first federally and right across the country in the provinces following World War Two.
“And since World War Two, changes to this model, changes to labour legislation have been incremental,” he tells HRD. “In Ontario, we had the election of the provinces, first pro-labour NDP government in 1990. Shortly thereafter, famously, Bill 40 was passed, and it was admittedly designed to support the union movement. However, in public policy, much like in science, every action has a reaction.”
Essentially, following the defeat of the NDP government in 1995, the newly elected Ontario Conservative government replaced Bill 40 with their Bill 7 - designed to support employers in their fight against unionization and clearly pro employer.
“For example,” says Certosimo, “if an employer were to fire union-supporting employees, before the Walmart amendment, the Labour Board would have had the ability to award certification without a vote to try to remedy the effects of the employer going over the line. The Wagner Act tenants included protection against employer unfair labour practices and the right to join a union of your choice [and] if an employer tried to interfere with those, the Ontario Labour Relations Board had had the ability to remedy it.”
Legislation prevents ‘coercive’ control
However, this was summarily taken away by the Conservative government in the 1990s.
“The pendulum swings back and forth,” says Certosimo. “Eventually, the 1998 adoption of Bill 31 was replaced by the 2005 Liberal government adoption in Ontario of Bill 144, which restored remedial certification. This all effects things on the ground because when the Walmart amendment was in effect, there were examples of employers going way over the line to prevent unions from succeeding - knowing that they could try to defeat a union's attempts to organize a particular workplace without any risk of the Board interfering.”
One case Certosimo cites famously included an employer hiring a gang to come into the workplace and physically threaten workers against voting for a unionization. This level of coercion and interference was permitted as a result of the Walmart amendment – which in turn has had a knock-on effect on the ground in Canada today.
HR’s role in unionization talks
Which brings us summarily back to the here and now. So what recent changes have inspired and added to this pro-union environment? Well, according to Certosimo, it’s still intrinsically linked to that Wagner Act.
“Across North America, the model traditionally has been that the union sign people up. And when they get to a certain threshold, they petition for or apply for a vote. Then, the workers in the defined bargaining unit have an opportunity to vote on whether they want to join the union or not. If they get over the threshold of 50% in favour of joining the union, then the employer has to negotiate or bargain with that union for a first collective agreement.”
And, if the union receives over 55%, there’s no vote needed. At that point, they can become the certified bargaining agent of that workplace. For employers, it limits the chance of persuading employees during a vote to reconsider their support for the Union.
“It’s during this time, the campaign to vote, when a lot of the education and persuasion can occur,” adds Certosimo. “By this I mean legal persuasion – not coercion – about the pros and cons of unionization. This takes place in the workplace between representatives of the employer and representatives of the union - but it also takes place within the proposed bargaining unit, amongst coworkers themselves. Just like an election for a government would.”
Throughout the campaign, this is when your employees are really paying attention. When unionization is new ground, people need all the resources and backgrounds they can possibly get to make an informed decision. Furthermore, it’s incumbent that HR leaders don’t try to push employees away from voting pro-union. To learn more about HR’s role in unionized environments, listen to Certosimo’s full podcast here.
