Monday, 24 December 2007

Why Card Majority can be more democratic than “so-called” Secret Ballot

(Remember, in Canada, 5 out of 11 jurisdictions use mandatory secret ballot systems and 6 out of 11 use card majority systems for union certification)

Of those jurisdictions in Canada that use the mandatory secret ballot system for union certification, most require 50% plus 1 of “those voting” as the threshold for majority support. They normally set quorum at 50% plus 1 of “total eligible voters” who must vote in order for the vote to be accepted.

So, if 50% plus 1 voters of 50% plus 1 of total eligible voters cast a ballot in support of a union, the workplace can be certified with just marginally over 25% support of the total eligible voters (let’s say 26% for the sake of the argument).

Put another way, you have 100 employees. In order for a secret ballot vote to be legal, at least 51 of them must vote. And in order to have a majority of the 51 voters, 26 must vote in favour. So in the secret ballot system with “majority quorum” – 26 voters can make the decision for 100.

Under the card majority system – the lowest possible number of employees who must support a union out of a workplace of 100 is 51. (That’s 25 more than the above system). Some jurisdictions set a slightly higher threshold. In other words, an absolute majority of “all eligible employees” must be achieved through a card sign-up.

Now given this, why do unions prefer the card majority system to the other system?

Because, under the “so-called” secret ballot system, the fact is – it really isn’t a secret ballot.

You see, employees must usually come to a balloting location to cast their vote. Or send their ballot in through a system that identifies the voter, but not the vote. The employer inevitably (and by law) has a representative there to observe employees who come to vote, or send in ballots. (In fairness, the union has someone there too). BUT, if an employee does not come to vote – the employer knows, for absolute certain, that the particular employee DID NOT vote in favour of the union. If the employee does come to vote – the employer knows that the particular employee had a 50 - 50 chance of being a union supporter.

With any union drive, there will be those employees who are vocally opposed to unionization of the workplace. Management is well aware of who those people are, it is no secret. If you know who voted, and you know who will vote against a union, it doesn’t take much, through the process of elimination, to figure out who the supporters are. There are lots of cases where workers have been fired for being union supporters.

Furthermore, using our example of 100 employees – management is at a significant power and strategic advantage if only 26 people out of 51 voters voted to support – because the other 49 workers are too fearful to come out to vote and risk being thought of as a union sympathizer by the boss. Especially if the boss is openly hostile to unionization, and has been able to send that message through “expressing their opinion”.

And this says nothing of the whole issue of the anti-union tactics that 94% of employers already admit they are using when they find out that the employees are considering unionization. (12% of whom readily admit that what they are doing is illegal). See Sara Slinn's: Anti-union intimidation is real.

Let’s at least be honest about the reasons why the Sask. Party is proposing to change the certification process in Saskatchewan – it hasn’t got the slightest thing to do with “workplace democracy”.

25 comments:

Mike The Greek said...

Union intimidation is also real

http://www.bizjournals.com/philadelphia/stories/2004/03/15/daily18.html

Also, can oyu quote your source that states 94% of employers use anti-union tactics?

Finally, in an effort to learn, since you claim the Sask Party moves have nothing to do with workplace democracy, could you explain the real reason for this move at this time?

Looking forward to your response...

Richard_Cranium said...

The card sign up is akin to buying a vaccum cleaner from a high pressure salesman. At least with the vacuum the law gives you time to change you mind after said salesman is gone. That same law in union terms would be secret ballot after being given time to think of all the angles, rather than signing a union card after an organizer is done their polished spiel.

Paul said...

Larry, what a crock of crap!

When a registered voter appears at a polling station to cast their ballot, their name is stroked off the list of eligible voters. Now, this does in fact show that Mr. Paul Decker has cast a ballot, but it does not show that he voted for the Sask Party, the Liberal party, the Conservatives, or the New Democratatic Party.

Using your logic, all those who did not vote, must be in favor of anarchy or do not want any government.

Since when is voting intimidating?

Two wrongs do not make a right, and creating a so called system to correct what labor considers injustices, is not justice. If its good enough for Federal elections, Provoncial elections, and referendums that can tear our country apart, it ought to be good enough for the Union brethern too.

But then again, true democracy scares the living crap out of folks like you and the rest of the so called labor movement leadership.

RoadBoss said...

It seems to me that once it has been established that a vote will take place, it should be mandatory for all employees to vote. That's the only true measure to the mindset of the workplace. Am I wrong? FYI, I dislike unions and the majority of lazy "Pavlov Dog" attitudes that they create.

Richard_Cranium said...

I agree that once a certificatio vote is called that there is mandatory voting. This decision directly affects the livelyhood of every member, so all must take part in the decision. I am not at all opposed to adopting the Australian rule that you MUST vote or risk a fine.

Larry Hubich said...

Paul,

Thank you for participating in this blog.

The difference between voting in an election and voting in a certification application is that in an election there are more than 2 choices. Also, in an election there are several thousands of votes cast - in a certification application there are rarely more than a few humdred.

As for voting being intimidating - it's clear from your comment that you've never been involved in a union certification drive or an application for certification. It is very intimidating for an employee to cast a ballot to join a union when the boss is in the room. It's much easier just to stay away.

It's not "creating a system to correct what labour considers injustices" as you suggest. These things that I've pointed out have been reinforced and supported by decisions of the Supreme Court of Canada - several times.

But, don't take my word for it. For just one example read the Dunmore v. Ontario Attorney General case at:

http://scc.lexum.umontreal.ca/en/2001/2001scc94/2001scc94.html

Contrary to what you allege I'm not afraid of democracy at all. In fact, I welcome it - with open arms. What is being proposed by the Sask. Party related to union certification, essential services, and employer communication is as far from democracy as you can get.

Clearly the WORST of any other jurisdiction in Canada.

Paul said...

Larry, I have been involved in certification of the Union. Ours was one of the less than 50 percent votes that carried into certification under Sask. rules. Our membership then voted me into the role of Unit Chair. I've been through the entire routine.

But like you state, there are less than two choices. In an earlier post, that was my point, why not have MULTIPLE unions compete for members? Again, Unions have an opinion about that type of competiton.

Janice said...

I have been involved in a union certification drive. There most certainly is union intimidation.

I will have to look up the proposed legislation as I have read conflicting information. Is it 50% plus 1 of the workers voting that will result in certification or is it 50% plus 1 of the eligible voters?

Based on your figures, I would most certainly get out and vote if I was opposed to the union because if the only people voting are in favour of the union, the union will be certified.

Brian said...

I fail to understand how you come to believe employers perceive the position of employees who do, or who do not vote under a secret ballot system. You state "BUT, if an employee does not come to vote – the employer knows, for absolute certain, that the particular employee DID NOT vote in favour of the union" - that's true, but the employer also knows, with absolute certainty, the particular employee also did not vote in opposition to the union. In reality, all the employer (or union) really knows is that the employee did not vote. To draw any other conclusion is to assume, and I trust you know the old saying about assume - it makes an "ass out of u and me."

Ultimately, all an employer (or union for that matter) knows about someone who votes is that they voted. And all they know about someone who did not vote is, you guessed it, they did not vote. Anything else is an assumption or, at best, an educated guess. Let's not be making illogical conclusions and creating unwarranted fear of the process.

Larry Hubich said...

Brian,

Actually, in a system where quorum is 50% of "eligible voters" instead of 50% of "those voting" who must vote in favour of a union before it can be certified - someone who doesn't vote is voting NO.

Because if you need 50% plus 1 of "all eligible" then the only ones that count "Yes" are those that vote "Yes". Everything else is a NO.

There are no assuptions or illogical conclusions to that fact whatsoever.

Brian said...

As noted in my January 8, 2008 post at http://larryhubich.blogspot.com/2008/01/more-misinformation-about-labour-laws_05.html, Bill 6 doesn't create the problem you describe, any more than does The Trade Union Act.

Larry Hubich said...

Brian,

You are wrong.

Brian said...

Your rebuttal / retort is surprisingly short of detail. Would you care to enlighten us as to your rationale?

Brian said...

Perhaps readers of this blog would be interested in doing their own research - the links below represent views from both sides of this topic.

Unions' democracy talk is hot air
http://www.nationalpost.com/Story.html?id=130591

This article ends with: "Workers should possess the ability to organize collectively and gain representation through unions in a democratic process. The challenge for union leaders is to start living by their own words and principles."

Anti-union intimidation is real
http://www.nationalpost.com/Story.html?id=150832&p=1

The second article concludes with the following: "In sum, the choice of certification procedure is complicated and often subject to heated ideological argument, rather than rational debate. The real debate should be about how to design a better procedure to achieve our common goal: allowing employees to freely choose whether to have union representation."

Even though the articles are written from much different perspectives, their conclusions are very similar. Both are definitely worth reading - if for no other reason than to better understand the opposing view.

Larry Hubich said...

The National Post is hardly a reliable authority on union certification and labour legislation across this country.

It is the most biased and anti-union rag out there.

Brian said...

I understand your position on the National Post and their perspective on management / labour issues, and we'll probably "agree to disagree" on that issue.

My point, as noted in my post of January 15, is I believe it is incumbent upon both management and labour to be informed and understand the other party's perspective - even if we don't agree with it.

It has been my experience that knowledgeable parties who understand the issues and interests of the other party have more productive and far less acrimonious discussions and negotiations. A good book on the subject is "Getting To Yes: Negotiating Agreement Without Giving In" by Roger Fisher (http://www.chapters.indigo.ca/books/Getting-To-Yes-Roger-Fisher/9780140157352-item.html) - based on the "Harvard Negotiation Project."

Larry Hubich said...

Brian,

Thank you for your comments.

Ah indeed, the old stand-by: "Getting To Yes". Some valid points and suggestions, however the book is getting a bit dated.

I've been negotiating collective agreements since 1976, and in all those years only two times has the process resulted in a "strike" or a "lock-out".

I can also say without fear of contradiction, that the process has changed by a quantum leap in the past three decades. My assessment as to the reason for the change is the introduction of "lawyers" and/or "MBAs" representing the management side of the table.

Talk about creating an instant adversarial environment.

The best, and most productive, the longest lasting, and most respectful settlements are achieved when the person/people representing the employer actually has/have a clue about the workplace, and what jobs people are actually doing.

I'll take a hands-on manager who came up through the ranks, and who learned how to negotiate by dealing with employees daily, every time over a person who learned everything that they know about "negotiating" out of a textbook.

One of these days I'm going to need to get a perspective on Fisher and Ury from my good friend Dr. Elaine Bernard. Elaine is the Head of the Harvard Trade Union Program at Harvard Law School.

Brian said...

I'm not suggesting anyone go into ANY kind of negotiations with only the knowledge they gained from reading a textbook - that's a disservice to all parties involved. What I am suggesting is the Harvard Negotiation Project has identified negotiation techniques for the parties to accomplish what they need in a cooperative environment - rather than an acrimonious one. The book cited is an "easy read" for most people so they can gain an understanding of the techniques and how to apply them - not become an "instant expert".

The prerequisite to this, however, is a commitment by both parties to negotiate in such a fashion, to state their needs and constraints, to understand the needs and constraints of the other party, to freely and openly discuss such needs and constraints in order to get to a common understanding of the real issues, and to avoid position statements. I have experience in negotiating many agreements (CBAs and other agreements) in such a fashion, and not only does this process usually result in better agreements, but the relationships are not "poisoned " in the process.

NC from LabourTalk said...

Larry, interesting blog you have here... tough keeping these things fed and watered eh? At the risk of getting this thread/blog back on topic:

I am personally of the mind that secret ballot votes are good at all levels, but to argue your point...

Do you support the notion that if more than half of a work force sign a decertification petition there need not be a vote, just boot the union?

I await your answer.

signed,
nc@labourtalk.org

Larry Hubich said...

Hi NC,

Thank you for participating in this blog.

I guess if you could devise a system that guaranteed there was no employer interference or undue influence in the generating and signing of a petition I'd have to take a look at the proposition.

Until then, I'll stick with the Supreme Court of Canada's acknowledgement of the huge power and influence imbalance that exists between and "employee" and "the boss".

How are things going for you over at LabourWatch?

NC from LabourTalk said...

I know them well, We are not LabourWatch, We are LabourTalk... a significant difference.

Labourwatch.com, though a great resource, are a bit too shy of confrontation for our tastes. labourtalk.org was born of Telus in BC and Alberta. We have some stuff from Ekati and Stora Enso as well as some others, but for the most part we are Telus based.

I know from experience that you are plenty busy and would not likely deign to chatter to a bunch of corporate unionists, but the invitation stands (though we also have the nasty bad union supporters too) ;-) and we love them all like family.. I have linked here from our site, having just found it and hope to interact, and hopefully a few of our regulars will also come and debate.

Thank you for the kind welcome.

Closing this post, and back on track, I would put it to you that currently there are considerably more complaints of "power imbalance" between Unions and employees than employees and employers. Is that my skewed viewpoint or have you heard that too?

Larry Hubich said...

NC,

In response to your closing point, while there are some concerns being raised in certain areas, in Saskatchewan, we are not experiencing what you perceive to be occuring elsewhere to the degree you are suggesting.

Complaints against unions are nothing new. And most of them are rooted in sophisticated campaigns carried out by management designed to undermine the union in the eyes of the members.

Google "union avoidance" sometime. There are tons of professional union busters out there. Corporations pay big bucks for this stuff.

Brian said...

Larry wrote:
> "...sophisticated campaigns carried out by management designed to undermine the union in the eyes of the members."
> "There are tons of professional union busters out there. Corporations pay big bucks for this stuff."

So very true, but there are also many sophisticated campaigns carried out by unions designed to undermine management in the eyes of the members. Based upon my observations of 30+ years in the workforce, it's my guess that, collectively, unions spend more on undermining management than corporations do on undermining unions.

Let's not forget that, in the unlikely situation where management somehow gets rid of the union, they still have their employees. On the other hand, if unions lose the battle, they've lost their entire revenue base (dues-paying members).

Larry Hubich said...

"...it's my guess that, collectively, unions spend more on undermining management than corporations do on undermining unions."

Wrong!

Brian said...

Perhaps - but I doubt it.