Last week, industry lobbyists launched the latest salvo against workers’ rights in Nova Scotia, which in the past year has seen the Liberal government dramatically attack collective bargaining rights and the right to strike for healthcare workers. The provincial arm of the Merit Association, a nation-wide wage-depression lobbying group, released its campaign to get unions out of the construction industry.
No more construction unions is, of course, good for contractors: no meaningful protection for workers who refuse unsafe work or report safety violations; no need to provide “just cause” for firing workers; no need to pay fair wages to young and women workers; no need to pay higher overall wages. However, lower wages and worsened working conditions will only exacerbate out-migration, which is a pressing issue in Nova Scotia.
The Merit Association, making up less than three percent of the province’s contractors, wants to change the Labour Board union certification process to make it harder for workers in the construction industries to choose their bargaining agent.
Across the province, construction sites open and close every day. Because the construction industry is so dynamic, it has its own rules for union certification: Part II of the Trade Union Act.
In order to form a union, construction workers must get a certain portion of the designated workforce to sign union support cards. If they get between thirty-five and fifty percent of the group to sign cards, this will trigger a certification vote. If the votes cast are more than fifty percent in favour of the union, it is certified.
The vote takes place five days after the certification was filed with the Labour Board. Only workers who were working on the day the certification was filed are permitted to cast a ballot in the certification vote. This is known as the “snapshot” approach and it enjoys a broad consensus across Canadian jurisdictions.
If more than fifty percent of the designated workforce signs union cards, the union is certified without a vote. This is called the “card check” method of certification.
Card check allows employees to decide whether or not to join a union without the interference of their employer. By avoiding a vote, workers escape the five day period between the delivery of the certification to the Labour Board and the ballots being cast. It means they can make the decision to vote “yes” or “no” based on their own opinion, free of coercion.
Merit wants two changes to the certification process: (1) no more certifications via card check, and (2) allowing all of a contractors’ employees to vote, whether or not they were working on the day the certification was filed.
These changes would open the certification process up to unfettered employer abuse.
Merit wants to eliminate card check because it knows employers have incredible power over their employees that they can leverage to influence the vote. The five days between a certification being delivered and a vote taking place can be difficult for employees as their bosses will stop at nothing to elicit “no” votes. Sadly, coercion, intimidation and threats are commonplace. Complaints about these behaviours are very hard to prove at the Labour Board and will often not be heard until months after the vote is cast.
The Association’s suggestion that all employees, not just those present, be allowed to vote is likewise an attempt to skew the process in favour of the employer. There is no way to regulate how many employees are actually employed by a contractor, or who those employees are. If any alleged employees are permitted to vote, contractors could easily stack votes with known anti-union workers, forepersons, supervisors, friends, and even family to garner a favourable outcome. The only way to regulate the voters is to make the day a certification is delivered to the Board as the baseline.
Merit has tried to characterize construction contractors as David versus the Goliath that is construction workers.
At its press conference, the lobby group invoked the November 27 Labour Board decision CanMar Contracting Ltd. v LIUNA, Local 615. There, two employees were not included in the Board’s calculation of the percentage of supporters because they were not at work on the day the application was filed. Thus, the union certified the nine-employee worksite.
In its reasons the Board quoted from a seminal 2011 decision:
“determining union membership in terms of employees working in the trade on-site at the date of application, is a rational, practical and effective way to determine the issue, which is consistent with the needs of construction industry labour relations to be able to have certification issues determined in a predicate, speedy and efficient manner.”
Merit’s President, Michael Kydd, reportedly called the decision “one of the biggest and most serious miscarriages of justice in the history of Nova Scotia labour law.” We can only assume he is unaware that this has been the law in Nova Scotia for years, and that he has not heard of the multitude of Board and court decisions that came to the same conclusion but involved dozens of employees, not just two.
The changes Merit has proposed are designed to undermine the dwindling amount of democracy that exists in the union certification process and push more jobs into the low-wage sphere
If the proposed changes to the certification process were adopted, the nine-worker site in CanMar would never be certified, regardless of the workers’ wishes. The employer would simply have a list of twenty “employees” who never work, but are counted in the Board’s calculations and eligible to vote. Thus, reaching the thirty-five or fifty percent thresholds would be impossible.
For Merit to paint construction contractors as the victims of an unfair system is not just absurd, it is insulting to the public. Bird Construction is doing fine. Conversely, it has long been recognized that construction work is incredibly precarious. Construction workers are faced with constant uncertainty as to whether or not they will have work the next month, week, or day. Despite that fact, they are excluded from a large number of important employment standards, like mandated vacation pay and termination notice.
The changes Merit has proposed are designed to undermine the dwindling amount of democracy that exists in the union certification process and push more jobs into the low-wage sphere. It is a transparent effort to attack some of the most precarious workers in Nova Scotia, and merits nothing more than contempt.
Rod McVicar is a construction electrician who has been an organizer for more than ten years in construction and industrial industries. He has organized across the country, from Alberta to Nova Scotia.
Jason Edwards is a former union organizer and current student of Labour and Employment Law at Osgoode Hall Law School.