'No one, certainly not business, is arguing that employees shouldn't have the right to unionize'
Although thwarted by procedural delays by the Opposition Progressive Conservatives on March 20, Manitoba’s NDP government has vowed it will move ahead with anti-scab and automatic certification legislation.
“We know that the march towards progressive labour laws that takes into account the most vulnerable of workers across Manitoba — we know that this kind of work doesn’t come easily,” said Labour and Immigration Minister Malaya Marcelino.
“This legislation will pass. It’s got to because folks have been working for this moment for decades.”
Automatic certification in Manitoba
Anti-scab legislation has been grabbing headlines across the country as Federal Bill C-58 undergoes committee review in the House of Commons and Manitoba and Novia Scotia both propose anti-scab bills to join B.C.’s.
But the second part of Manitoba’s proposed legislation, automatic certification, is just as controversial and important for the well-being of employees, says Adam King, assistant professor of labour studies at the University of Manitoba.
Automatic certification is an essential part of preventing workers from being intimidated by employers after they’ve submitted signed cards, but before a vote, he said.
“For many workers, choosing to unionize is actually quite scary, and could involve considerable costs if they think that their job might be in jeopardy or they might face some sort of other retaliation from their employer,” said King,
“Asking them to go through that twice can be quite taxing.”
Why is card check certification on the table again?
Kinew’s government is planning to propose a simple majority threshold of 50% plus one for Manitoba.
Employer representatives on Manitoba’s Labour Management Review Committee (LMRC) suggested a 65 percent card signature threshold for automatic certification, Winnipeg Free Press reported.
“[It] was a compromise based on the theory, which would be mostly true, that if you hit a 65 percent threshold, you’re likely to have a majority of people who really want to be members of a union,” said Manitoba Employers Council chair William Gardner in the Free Press.
“No one, certainly not business, is arguing that employees shouldn’t have the right to unionize if that’s what they want.”
Automatic certification split LMRC in 2016
In 2016 the Pallister government threw out the card-check system that had been in place since 2000, which allowed automatic certification with a 65 percent majority. However, less than 65 percent, but more than 45, would trigger a secret ballot vote.
At that time, the LMRC provided its split opinion on discontinuing automatic certification; the Labour Caucus expressed confusion as to why the move was necessary seeing as how a secret ballot vote was already part of the Labour Code. It also pointed out that Manitoba was in a period of “relative labour peace” that had lasted for over a decade.
“Moreover, we are unaware of any broad-based employer lobby to change or eliminate auto certification,” wrote labour caucus chair Kevin Rebeck in the 2016 report to government.
The management caucus “whole-heartedly” expressed support for the move back to two-step certification. However, it did agree with the labour group that the time period between card submission and the commencement of a secret vote should be minimal to prevent issues and requested a review of that process.
“The argument from employers is that by having a separate step, the workers who might have felt coerced or unduly influenced to sign a card could then express their preference as a no vote secretly. That's the implication … but labour boards can't find any evidence that that takes place,” King said.
“Essentially, there is no benefit to having the second step, other than to allow employers additional time to try to influence workers to vote ‘no’.”
B.C. automatic certification, two years in
British Columbia returned to a card-check system in 2022, with a model of 45 to 55 percent of signed cards triggering a secret vote. B.C.’s Labour Relations Board released its 2023 annual report early this month, showing a higher number of union certification applications in almost 20 years.
Union applications rose 48% last year, thanks in part to the NDP government ending the unnecessary two-step system.
— Bea Bruske, CLC President (@PresidentCLC) March 26, 2024
It's amazing what happens when you remove barriers to worker power.https://t.co/v7itEyK8yJ
Those findings reflect other research that has shown the two-step process can lead to declining union certification levels, King said. The issue is highly politicized with right- and left-wing parties removing and then adding the second step – a “yo-yo effect” that leaves workers in the middle.
“We don't change our voting procedures in the political electoral arena every time there's a change of government, but we do it to people when it comes to choosing whether or not they want to be represented by a union,” King said.
“[Card check certification] recognizes the major power imbalance between workers and employers alike. When we vote in elections, we don't choose the political party under fear of job loss. But when workers choose to unionize, they often do face all kinds of consequences for their decisions. So having card check in place recognizes that power and balance.”
Neutrality important for employers during union organizing
If card-check certification does get implemented in Manitoba, there will be no direct impact on employers that are already unionized, King said, unless their bargaining units don’t encompass the entire workforce; if an existing bargaining unit can establish a “community of interest,” card-check certification can make it easier for them to petition for expansion.
Regardless of whether the jurisdiction is currently under automatic or two-step certification policy, he stressed that employer management remaining neutral is not only essential for maintaining strong employee relationships, it can help organizations retain staff if competition increases due to higher rates of unionization.
“Employers always have the option of voluntarily recognizing a newly formed union,” said King.
“Ultimately, employers should consider it in their long-term interests to respect the democratic decision of their employees to form or join a union. To maintain good labour relations, voluntary recognition may be preferable to objecting to or trying to obstruct workers from unionizing.”
