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Union certification: Developing a level playing field for labour relations in Quebec“The first is the marked long-term decline inthe organized labor movement in the U.S. and, toa lesser degree, Canada and most otherindustrialized nations.” 4 By the late 1990s, policymakerswere concerned about the widening gapbetween the portion of employees who wished tobe represented in their workplace and those whoalready were. To confront this situation, twooptions were available to them: make unionrepresentation more accessible or encouragealternative non-union forms of representation.“A second trend […] is the popularization ofnew forms of management and work organization,variously referred to as participativemanagement, employee involvement, and ’highperformance’workplace.” 5 Because of heightenedcompetition, skill-intensive production systemsand greater employee expectations of involvement,the traditional “command-and-control”system has given way to more decentralizeddecision-making schemes and enhanced employeeparticipation. By creating channels throughwhich employees can have their voices heard,employers are able to insure productivity andemployee satisfaction in the workplace whiledecreasing the incentives to unionization.“A third, and uniquely American, development[…] is the ongoing political debate overreform of the NLRA” adopted in 1935. 6 Alsoknow as the Wagner Act, this piece of legislationimposed a ban on most forms of non-unionemployee representation. Even though Canadianlabour legislation resembles the U.S. NLRA, thequestion of non-union representation is treateddifferently in the two countries. In Canada, nonunionemployee representation is legal as long asit is not used to handicap or limit unionorganizing. The major difference between the twobodies of legislation is that Canada has adopted a4. Daphne Taras and Bruce Kaufman, “Nonunion EmployeeRepresentation: Introduction,” Journal of Labor Research, Vol. 20,No. 1 (Winter 1999), pp. 1-8, on page 1.5. Id.,p.2.6. Id.different definition of the concept of labourorganisation. “To avoid banning non-unionforms, Canadians lawmakers concentrated oncreating narrow and structural definitions oflabour organizations.” The result of thisdifference has led to a greater number of nonunionemployee representation schemes inCanada.“Finally, a fourth trend that has worked tovisibly raise interest in NER is the important rolethat such representation plays in the industrialrelations systems of other major industrialcountries outside of North America.” 7 Indeed,there are many European countries that haveadopted legislation strongly encouraging nonunionemployee representation. For example,work councils are very popular in Europe.Japanese companies have also innovated in thissector by adopting several different forms of nonunionemployee representation. More recently,Central and Eastern European countries thathave recently adopted market economies havealso brought additional diversity into industrialrelations systems.Non-union employee representation is a farmore diverse and complex institution than thestereotypical ”company union.” 8 The diversity ofnon-union forms of employee representation canbe partly explained by the fact that non-unionforms of employee representation have nocomplex body of statutory rules, agency regulationsor procedures for court rulings, in contrastto unions.To map out the diversity of non-unionemployee representation and understand itbetter, Taras and Kaufman start by arguing thatNER varies along six distinct dimensions: form,function, topics, representational modes, extentof power and degree of permanence. Secondly,they emphasize the fact that individual opinions7. Id., p.5.8. Daphne Taras et Bruce Kaufman, op. cit., note 3, p. 514.24Montreal Economic Institute
Union certification: Developing a level playing field for labour relations in Quebecon non-union employee representation dependon the perspective or the “frame of reference” thatis used to evaluate them. The authors identifyfour different perspectives that represent thedifferent dimensions or realities of non-unionemployee representation.The first perspective is an evolutionary one,in which non-union employee representationschemes are considered as a mere step in theevolution of employee-employer relations. Thisimplies that non-union employee representationis considered as “an unstable form of voice” thatwill be supplanted by genuine industrialdemocracy.The second and more positive perspective isto consider non-union forms of employeerepresentation as means to unify the interests ofboth employees and employers. Proponents ofthis method of regarding non-union employeerepresentation believe that, in contrast to unionsthat generally foster a confrontational relationshipbetween management and employees, nonunionemployee representation encouragescooperation and the pursuit of commoninterests. Non-union employee representationoffers a venue for promoting employee involvementand empowerment while providing aforum to build outcomes providing mutual gain.The third perspective is to consider nonunionemployee representation as a way to hinderand limit union introduction in the work place.Proponents of unions consider non-unionemployee representation as a way for employersto succeed in blocking certification attempts.Indeed, many cases were identified whereemployers suggested non-union employeerepresentation in reaction to union drives. Ofcourse, union avoidance is an important criterionwhen management considers adopting a nonunionform of employee representation in theirorganization, but empirical evidence seems tosuggest that it is not the only reason, since nonunionemployee representation has been implementedin organizations where the threat ofunion certification was low.The fourth way of considering non-unionemployee representation is to view it as acomplement to trade unionism and not asubstitute. This idea of complementarity hasbeen observed in Europe, where work councilshandle plant-level issues while trade unionstackle industry-wide matters.This last perspective can help us understandwhy non-union employee representation coversonly a small percentage of workers in Canada andthe U.S. Indeed, for non-union forms ofemployee representation and unions both toflourish, it is necessary for policy-makers toadopt a legislative framework that “promotes theoptimal mix of the two forms of voice”. 9 Andsince this type of legislation is unlikely to beadopted in either country in the short or evenmedium term, the future of non-union employeerepresentation in North America remainsuncertain.Also, even though non-union employeerepresentation would avoid some of the flaws ofunions, they are not perfect. Here are some of themain problems: “Most forms of non-unionrepresentation are ‘management dominated’. [...]NER generally lack independence frommanagement and real-decision making power:they consult rather than bargain.” 10 Also, suchprograms are often “merely management’sattempt to gain knowledge possessed by workersin order to increase productivity, reduce workrules, and in general, gain concessions fromunions without sharing decision making.” 11Furthermore, in a study regarding systems ofcollective employee representation in non-unionfirms in the U.K., the author states that, in many9. Id., p. 533.10. Mark Harcourt and Helen Lam, op. cit., note 1, p. 336.11. Id.Montreal Economic Institute25
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