By David Bush and Jason Edwards
Wages, working conditions and fair treatment are, above all else, determined by workers’ collective power. For the majority of workers, collective power, and consequently industry standards, is defined in large part by their ability to bargain collectively. The uneven power relations between workers and employers within the capitalist system is both regulated and enshrined by labour law. This regulation, which is the historical product of class struggle, has been both the source of immense advancements for workers and a concrete barrier in fighting to expand and strengthen the collective power of workers.
Currently, the full benefits of collective bargaining in Canada requires that workers build organizations that can engage in a strict legalistic labour-relations regime. In our experience as union organizers in Nova Scotia, no matter how much support a drive has, no matter how strong its legal position, no matter how clear its moral superiority, for most organizing drives overcoming the barriers presented by the Labour Board is paramount to the success of a campaign. Thus, having a concrete understanding of the labour board process in theory and practice can help workers and unions develop strategic demands in order to make it easier for workers to forms unions. The following is an examination of the process in Nova Scotia.
The Certification Process in Theory
The operations of the Labour Board of Nova Scotia are divided into two sides: labour standards and labour relations.
Concerning organizing new bargaining units, the Board’s operative function is to enforce the terms of the Trade Union Act. The Act’s stated purpose is to “recognize and support freedom of association and free collective bargaining as the bases of effective labour relations… in the public and private sectors of Nova Scotia.” The main thrust or “spirit” of the Act is to ensure that the wishes of workers are respected above those of managers, union representatives, or government bureaucrats.
The basic process for forming a new legally-recognized collective bargaining unit is not complicated. First, employees start to sign “cards” with the union they want to join. When at least forty percent (numbers vary in construction and federally-regulated industries) of the employees in the proposed bargaining unit have signed, the group files an application for certification with the Labour Board.
The function of the application is to trigger a vote “of the employees in the unit applied for to determine their wishes”. The vote is a secret ballot and takes place on the employer’s premises within five days of receipt of the application by the Board.
When the prescribed voting time has concluded, the ballot box is sealed. There is then a period of limbo that can span (in our experience) anywhere from a few short weeks to many long months. During this time the union and employer craft arguments as to the appropriateness of the bargaining unit and specific members’ status in it. Once the bargaining unit is decided upon, the votes are counted. If more than half of the votes are “yes,” the workers have gained their legal right to bargain collectively. If fifty percent or less vote for the union the effort is quashed and the workers must wait three months to file another application for certification.
The Certification Process in Practice
Problems with Labour Board practice are (not surprisingly) a function of the asymmetry of social relations in capitalism. Working people cannot marshal resources—time, money, etc. —to contend with members of the ownership class on an equal footing. What’s worse, like other state institutions, the Labour Board pays deference to the desires of employers over those of employees. The following are examples of how the Board stifles worker choice by catering to the undue influence and resources of the owners of capital.
The lengthy period between the outset of an organizing drive and certification favours the employers, as it gives them the chance to quell workers’ militancy and solidarity. Organizing comes with significant risk to workers. The vast majority of people work because they need to in order to meet their material needs. This is especially true for people doing arduous, low-wage jobs.
When something as important as someone’s livelihood is at risk, the status quo, no matter how bleak, is often easier to accept than to confront. The more time employers have to spread rumours, threaten, punish and offer false promises the harder it is to organize and maintain workplace solidarity.
It becomes even more difficult in workplaces with a high turnover, such as low wage jobs. This natural turnover of staff favours the employer. Every worker who moves on can be a supporter lost. Conversely, new hires generally take some time to develop a healthy criticism of their employer and a willingness to “rock the boat”.
Time Favours the Employer
Employers have little difficulty exploiting the Board’s lax certification process in order to fight back against worker power. In theory, an employer is not allowed to coerce workers against supporting the union. In practice, that provision is often ignored. We have yet to be involved in an organizing drive where an agent of the employer did not threaten or otherwise try to unlawfully dampen workers’ enthusiasm for collective bargaining. A “whisper campaign” can quickly spread radical falsehoods throughout a workplace, threatening things that would be unlawful if attributed directly to the employer. Employers will also engage in seemingly lawful forms of intimidation, for example, rather than directly threatening union-supporters with dismissal, employers will say, “the company’s competitiveness will be compromised.”
Worse still, owners will often use the extra time provided to engage in intimidation and bullying. These acts can range from cyber-harassment in the form of denigrating comments over a social network to direct intimidation, such as showing up at the homes of employees to berate them. In practice, workers are not effectively protected from these acts as it is difficult to prove that another employee is acting at the behest of management.
As the overseer of the certification process, the action—or more importantly, inaction—of the Board dictates the chronology of organizing. On the surface the Act demands a five day period between an application being delivered to the Board and a vote being held. In our experience, it is rare that a vote be held within five days. Rather, small problems that a reasonable person would assume are immaterial, delay the process. For example, we have had a vote delayed by a week because the Board’s agents could not find the employer’s office. Similarly, we have seen numerous votes delayed due to Board indecision on vote logistics such as time and location.
Justice Delayed is Justice Denied
Time is also a factor that hinders workers’ access to meaningful redress when they face unlawful retribution from their employer. Section 7 of the Trade Union Act stipulates that, during a union drive, “the employer shall not, without consent of the Board, increase or decrease rates of wages or alter any other term or condition of employment…” Unfortunately for workers, this “freeze provision” is oftentimes ignored and workers face unlawful retribution. Even when workers and their unions fight back against unlawful acts, extended timelines can make redress meaningless. Filing an unfair labour practice complaint can eventually lead to re-instatement and back-pay for the aggrieved worker. However, someone making minimum wage, and consequently living paycheque-to-paycheque, cannot wait months for justice. We have seen unlawfully-dismissed workers wait more than six months for redress, in the meantime falling behind on rent and other bills. Conversely, owners experience little, if any, personal consequences while waiting for the process to unfold.
In no other instance is the maxim “justice delayed is justice denied” more appropriate than when the parties involved sit in such obvious financial asymmetry.
Deference to Employers
Decisions made by the Board concerning the certification process take into account the facts of each specific case. To its credit, the Board will make serious efforts to accommodate a certification. We have seen Board Officers conduct votes outdoors, overnight, and in the cold of winter. This flexibility is a double-edged sword, however, as it can mean more often than not bending to the will of an employer rather than respecting the spirit of the Act and providing a fair certification process.
Often, in trying to account for the exigencies of a particular workplace, the Board relies heavily on information from the employer. Rather than subjecting the information to thoughtful criticism, the Board will assume it to be true. For example, we were involved in a certification where every employee of a rank below “non-working supervisor” – a term used by the company and board to denote supervisors whose jobs did not resemble in anyway those whom they were supervising- was included. When deciding which employees were non-working supervisors, the Board simply took the employer’s word as truth. Of about ten workers who had their votes excluded, only three actually met the threshold of being “non-working supervisor”. Had the vote been closer, those excluded votes could have changed the outcome. (When asked about the situation at a later date, some of these people were surprised to hear that their manager thought they were “non-working”.)
When communicating logistical information to workers, the Board relies on the employer. For example, when there is a vote the employer is responsible for posting clearly visible notices wherever prospective new members work. There is, at best, little oversight by the Board as to whether this standard is followed. This leaves lots of room for employers to actively choose which workers they would like to turn out for a vote, and which ones they would like to remain uninformed.
The Board’s reliance on employer-derived information not only undermines the integrity of the certification process, it makes little practical sense. In our experience, owners rarely have an intimate understanding of workers and their work. Organizers, especially coworkers, have a much deeper understanding of on-the-ground logistics at the workplace.
The Trade Union Act is designed with the express purpose of providing a framework for workers to freely exercise their right to bargain collectively. In reality the complex legalistic labour regime that has come to govern most labour-capital relations operates squarely on the side of employers.
However, that does not negate the need to fight for reforms that in the short term can make it easier for workers to increase their collective power and sharpen their social and political strategies. Reforms should aim to ensure that the entire certification process—from application to vote to the resolution of outstanding unfair labour practice complaints—is expedient and accessible as possible.
The Board’s agents need to act in a decisive, impartial manner. Rather than relying on its relationships with managers, the Board needs to consult workers and their chosen representatives to fit the certification process to the needs of the ones it is designed to enfranchise. Deference should never be paid to the class of people who directly benefit from undermining workers’ bargaining power. An effective Labour Board will not be able to overcome the economic asymmetry that is inherent in capitalism. It can, however, serve to make small material gains that will ultimately increase workers’ resources and improve our chances in building true class power.
Ideally, working people trying to bargain collectively would not require state sanction. Rather, the success of an organizing drive would rely entirely on grassroots solidarity. Unfortunately, we are not currently in an epoch where workers can effectively organize outside of capitalist state structures (at least from what we have seen in Canada or Nova Scotia). Workers, more often than not, are confined to exercising their collective power within a very restrictive, but temporary, legalistic paradigm. Making the Labour Board work for workers – or rather, less for the employers – is a small step in allowing workers to grow their power in order to bring about the real changes we need to see in our society.
Jason Edwards is a student at Osgoode Hall Law School, a Research Associate with the Canadian Centre for Policy Alternatives and a former union organizer.
David Bush is a co-editor of Rankandfile.ca and a former union organizer.