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Union certification: Developing a level playing field for labour relations in QuebecQuebec is alone among the four bigprovinces in not requiring a secret ballot forcertification. Moreover, the card membershipevidence threshold required for certificationthrough a secret ballot is lower in Quebec, at35%, compared to 40% in Ontario and Albertaand 45% in British Columbia. Finally, theduration for which a union card is valid for aunion certification drive is longer in Quebec(12 months, compared to 6 months in Ontarioand 90 days in B.C.; in Alberta, signatures for acertification petition are valid for 90 days, whileproof of current union membership in goodstanding applies indefinitely).These two characteristics of the certificationand voting statutes and regulations, namely thecertification regime and the eligibility to vote instrike and final offer proceedings, are symptomaticof Quebec’s favourable bias toward unionization.In the next section, we will review the mainarguments that support or oppose this favourablebias as formulated by various labour relationsanalysts, focusing on the certification system issue.As regards strike votes and final offer votesin the private sector, Quebec is the only one of thefour big provinces where only current unionmembers are eligible to vote. In the other bigprovinces, all members of a bargaining unit areeligible to vote.16 Montreal Economic Institute
Union certification: Developing a level playing field for labour relations in Quebec3. Arguments forand against unioncertification throughsecret ballots orcard checksAs mentioned above, four provinces inCanada use the card majority certificationregime: Quebec, Manitoba, New Brunswick andPrince Edward Island. The federal jurisdictionalso uses the card majority certification regime.The rules for automatic certification vary amongtheses jurisdictions, though. The other provincesuse the mandatory secret ballot vote certificationregime when a union reaches a minimumthreshold of signed cards, which is generallylower than the percentage required for automaticcertification.Proponents of both systems use similarlanguage to support their positions. 1 Unionssupport the idea that card certification isnecessary to “avoid the campaign-style electionsprevalent in the United States and the influencethat the employer is perceived to have over itsemployees during such campaigns.” 2 They fearthat, under the mandatory secret ballot votecertification regime, employers can pressure orcoerce workers during the election campaign tovote against the union since they have privilegedaccess to workers.employer intimidation, “often ignores the veryreal existence of either peer intimidation orsubstantial peer pressure.” Furthermore, undercard check recognition, workers are exposed onlyto the union’s point of view. 3 This could lead toemployees being misled and pressured intosigning authorization cards without havingaccess to all relevant information. Also, it isimportant to note that there is no limit to thepressure that union organizers can exert on theircolleagues, in contrast to employers. Indeed, legalrules against “unfair labour practices” protectemployees from employers’ abuse. But there areno measures to limit the persistence of unionorganizers. “There is neither any restriction as tothe number of times that the union may visit noras to what can be told to the employee.” 4Another point of discord between theproponents of each system is whether a signedcard is sufficient proof of an employee’s desire tojoin a union. Given empirical evidence thatemployees often join rival unions, or join unionstwice, it may be that their choice does notnecessarily reflect their support for a union butmore their fears of being harassed or intimidatedby union organizers. In such cases, theuncertainty of employee support for a unionundermines the union’s capacity to negotiatewith the employer since its credibility is notproven: “to expect negotiations in good faith withthe employer to get under way, it is necessary thatthe employer be persuaded that the tradeunion does indeed represent and enjoy thesupport of a majority of its employees.” 5On the other hand, as pointed out by RoyHeenan, a well-known authority in labour law,card majority certification, which is said to avoid1. As mentioned in Gerald Mayer, Labor Union Recognition Procedures:Use of Secret Ballots and Card Checks, Congressional Research Service,April 2007, p. 18.2. Roy Heenan, Card Majority Certification, presentation before TheNational Finance Industry Employment Law Committee (Philadelphia),June 2007, pp. 1-2.3. Gerald Mayer, op. cit., footnote 1, p. 18.4. Danny Kaufer and Michael Grodinsky, The Employee Free Choice Act(EFCA): Lessons to Be Learned from the Canadian Experience,presentation before the American Employment Law Council, October2008, p. 19.5. Roy Heenan, op. cit., footnote 2, p. 6.Montreal Economic Institute17
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