Many employers do not know that their employees are only one online signature away from joining a union, and that if just 55% of them sign a ‘card,’ the entire staff could become unionized. The rules in place today make it that easy. Here is what all employers should know.
Card Check Certification
In the fall of 2022, the NDP Government removed the mandatory secret ballot vote, which had been in place since 2001 and required majority employee support in a traditional secret ballot vote in order for a workplace to become unionized. To be entitled to a vote, a union needed to show that 45% of the employees it was seeking to represent had signed union membership cards. If that threshold was met, then a secret ballot vote would be held to provide all employees an opportunity to indicate (privately and confidentially) whether or not they wanted to be represented by the applicant union. This vote was overseen by the BC Labour Board. The secret ballot vote requirement (which exists in most provinces) helped ensure that certifications were based on the true wishes of employees.
This vote model has been replaced by the ‘card check system’ where a union must only demonstrate the support of 55% of employees by simply having those employees sign a membership card—usually a virtual card, signed online. If this threshold is met, the union will be automatically certified without a vote.
Where less than 55% of employees have signed a membership card, the Board may still order a vote, as long as at least 45% of them have signed a membership card. However, not surprisingly, that almost never happens now. Unions always try to meet the 55% threshold to avoid the need for a vote.
“It is entirely possible for employees find themselves unionized without an opportunity to have their say.”
This new regime makes it entirely possible for nearly half of the employees in a workplace to find themselves unionized without an opportunity to have their say on the matter. This also eliminates an employee’s ability to make a decision about unionization privately. Union organizers and co-workers get to know who signed a card and who did not.
Employers are often skeptical of card check models. They fear that Union cards are signed under peer pressure or based on a misunderstanding, or even misrepresentation, about what signing a card really means. The concern is that the signing of a union card does not necessarily mean individuals want their workplace to be unionized. The conduct of a secret ballot vote provides employees with a fair chance to consider the issue and vote as they wish in a confidential manner.
Quite predictably, we have seen a remarkable increase in certification applications since this legislative change. Studies examining the shifts in union certification between card check and two-step models have found a significant increase in certifications in jurisdictions which utilized the card check system.
“There has been a remarkable increase in certification applications.”
The divergence between card check and mandatory secret ballot models have been most impactful in the private sector, and specifically in workforces with fewer employees and more transient workforces. The study found that industries with less of a traditional union association, such as the service sector (including retail), saw far more organizing activity under the card check regime than with mandatory voting.
A year following the legislative change confirms this has also been BC’s experience. Just a casual glance at the BC Labour Board hearing schedule illustrates a remarkable uptick in applications for certification over the past several months. Notably, several employers in the BC private liquor retail sector have experienced active union organizing for the first time in the history of their operations—it is no coincidence.
What Can Employers Do?
An employee’s decision to join a union is a statutorily protected right in BC. Interference with this freedom of choice by an employer may amount to a violation of the Labour Code. However, that does not mean there’s nothing an employer can do about the matter.
Many employers prefer to deal with employees individually rather than through a third party. That preference is not unlawful. In our experience, the best strategy is to proactively ensure that employees do not feel they need others to speak on their behalf to solve workplace problems.
“The best strategy is to proactively ensure that employees do not feel they need others to speak on their behalf.”
There is no time to wait—no meaningful opportunity to talk to employees effectively about their workplace and the potential decision to unionize after learning that union cards are being signed, or after learning a certification application has been filed. By then, it is too late.
Think about your relationship, and your managers’ relationships, with employees today. Are you taking the right steps to ensure they won’t be persuaded that their workplace experience will be better if they become unionized?
Consider the following:
- Are you providing a competitive, equitable, and transparent compensation package?
- Are your managers visible, engaged, and available to employees?
- Do employees believe they are treated fairly, with dignity and respect?
- Do you provide a safe workplace?
- Do employees know they have a voice and that their employer will respond promptly to any concerns they might raise?
Proactively nurturing positive employee relations is the best strategy. It is essential to stay plugged in, at the ground level, so that signs of discontent can be recognized and addressed immediately. Employers can’t please everyone, but missing or ignoring signs of trouble may inevitably lead to employees, and the employer, experiencing the card check model.