Saturday, 5 January 2008

More misinformation about Labour Laws published in Regina Leader-Post

Today, (Sat. Jan. 5, 2008), an individual named Brian Fergusson had a letter to the Editor of the Regina Leader-Post published bemoaning Saskatchewan's labour laws, and supporting the Brad Wall government in their recent attack on workers' constitutional, charter and human rights. You can read the article here entitled: Predictable reaction.

I have subsequently received a copy of a response which has been submitted to the Leader-Post by a reader who sent me a copy. It is reproduced below:

Sent to Editor, Regina Leader Post, Saturday, January 05, 2008

Brian Fergusson’s letter of January 5, 2008 shows a complete lack of understanding of what the Saskatchewan Party’s labour legislation revisions are all about. Mr. Fergusson wonders what is wrong with secret ballots. The answer is simple: not a thing. Unions use secret ballots for all sorts of decisions within the union. It is the administration of a secret ballot vote during a union organizing drive that is at issue. Under the proposed legislation, employers will know which of their employees cast ballots in any union certification vote. Therefore the workers will have been divided into two easily identifiable groups, those who either voted for or against the union and those who most certainly are against the union because they did not vote.

There is a huge incentive for employees to not vote in a system where their potential loyalties can be so easily revealed to their employer. Most people agree that it would unfair if a union were voted in or out solely on the basis of a majority of votes cast. In this case, the legislation requires that a majority of eligible employees must vote in favour of joining the union in order to determine whether union certification is warranted.

If voting can be discouraged in the first place, by an employer who makes it known that "not voting" is the preferred option for its employees, anyone brave enough to show up at the polls will be identified immediately as being a possible union supporter. The new legislation allows employers to "freely communicate" with employees in such cases. It allows employers to "advise" its employees of all the down sides to unionization that the company can dream up, including, as Mr. Fergusson pointed out, warnings about jobs being "lost forever", that a union might provide an "impediment" to competition. How fair is that?

The current system of secret card signing as a method to determine how many employees want a union was devised specifically to prevent employers from finding out which of their employees are potential union supporters. It was enshrined in law because it protects employees from being targeted by employers.

Mr. Fergusson talks about Saskatchewan Federation of Labour President Larry Hubich as if he is a gangster, referring to the people who elected him (by secret ballot!) as "his cronies". I would like to know what we ought to call Mr. Fergusson’s colleagues?

- Gary Schoenfeldt

For more information on this topic click here.

Update Jan 11, 2008 - Gary's letter has now been printed (in edited form) in the Leader-Post entitled: Workers could be targeted by employers

26 comments:

Janice said...

"The current system of secret card signing as a method to determine how many employees want a union was devised specifically to prevent employers from finding out which of their employees are potential union supporters."

If that was true, why are unions allowed to elect bargaining committees BEFORE they are even certified? The current LRB does not consider being told "If you don't sign a union card, you will have no say in who is on the bargaining committee" to be intimidation.

What we need are less union rights, less employer rights and a lot more WORKER rights.

Richard_Cranium said...

These voters are all employees. Simply make voting mandatory. If they decide to write a poem on the ballot, and spoil it, so be it. At least then no one has any idea who did what. And I find it illogical how it can be assumed that all who did not vote are against union formation.

Janice said...

If I were against the union, I would certainly vote to ensure that my voice was heard.

I have heard union arguments against secret ballot voting before, this is the first time that I have heard such a lame reason.

Larry Hubich said...

Janice,

Thank you for participating in this blog.

Unless "voting" during a certification vote is mandatory (which it currently isn't under the Trade Union Act - and as I read things there is no proposal to make that the case) - then changing the quorum to require 50% plus 1 of "all eligible voters" means that "not voting" = "voting no".

With respect to your first point - people who are not members of, oh, let's say employer associations, - don't get to vote on who's on the employer's bargaining committee. I don't know of any organizations who allow people who are not members - to vote on who will sit on their committees.

Just a question, do you think the Saskatchewan Association of Health Organizations (SAHO) or any such other employer association would let me have a vote on who should be on their bargaining committee? Not if I'm not a member.

David said...

Larry, you guys aren't going to win this one. I know you have to put up a fight, but public opinion is overwhelmingly against you on this. I wonder if you privately acknowledge even a morsel of truth in the criticisms of Saskatchewan labour laws. Unions are terribly unpopular right now so a government that doesn't rely on your support can only benefit from rattling your cage for a couple years.

It's just not as apocalyptic as you make it sound. Big labour will get along just fine.

Janice said...

You may have missed my point, Larry. The Bargaining Committee -- the people who represent the workers at the bargaining table -- was elected BEFORE the union was certified to represent us. We were forced to sign a union card, even though the union was not certified to represent us, or we would have no say in who represented us at the table.

Democracy or coercion? Be honest.

On the other issue, I do not believe that workers will be afraid to vote. Being identified as a union supporter protects ones job because the company will be accused of anti union bias if they make a move against you.

I read LRB decisions.

Janice said...

I finally got around to reviewing Bill 6, as well as the Trade Union Act. I came across the following:

Quorum for vote
8 In any such vote a majority of the employees eligible to vote shall constitute a quorum and if a majority of those eligible to vote actually vote, the majority of those voting shall determine the trade union that represents the majority of employees for the purpose of bargaining collectively.

It appears that a majority of employees is not required to certify a union, it is a majority of those voting.

What I couldn't find in The Trade Union Act was the clause that gave the unions the right to automatic certification under the card signing process.

Larry Hubich said...

Janice,

Certification based on card majority support under the Saskatchewan Trade Union Act is granted pursuant to Section 5 a. through c. of the Act.

With respect to Quorum, I would argue the same as you - that Section 8 sets quorum on the basis of 50% plus 1 of those voting.

There is an argument, however, that Section 6 (as amended) could take precedence over Section 8. Further, the Premier is on record stating that the changes are intended to create a system whereby quorum would be based on 50% plus 1 of eligible voters.

My question then, is which one is it?

It is also very clearly on the record that the now Minister of Health stated (pre-election) that the Sask Party would "Not legislate Essential Services" - that has been contradicted by the Premier who seems to have prevailed.

Given the thrust of these (and the other) amendments to the Trade Union Act, and the new legislation regarding Essential Services - I do not have the same confidence you seem to have.

There are too many unanswered questions for me.

Thank you for your comments and for sharing your perspective.

Brian said...
This comment has been removed by the author.
Brian said...

"There is an argument, however, that Section 6 (as amended) could take precedence over Section 8."

Just who, exactly, is making that argument, and on what basis? I've read Bill 6 in detail, as well as The Trade Union Act, and my opinion is there is no ambiguity there - the quorum provisions of The Trade Union Act remain in effect.

The 45% test provisions of the proposed clause 6(1.1) only apply to determining whether a secret ballot will be held, the ballot itself still goes by the provision of section 8.

For what it's worth, if "the Premier is on record stating that the changes are intended to create a system whereby quorum would be based on 50% plus 1 of eligible voters", I'd like to see the source and the context before accepting that statement at face value.

Larry Hubich said...

Brian,

"In your opinion there is no ambiguity there...." Are you relying on independent legal advise in that regard? If so, can you reference some citations I could canvas?

There is a digital recording of the Premier speaking during the scrum in the rotunda following introduction of the amendments to the Act. He speaks to the question. It's pretty clear.

You seem to be fairly certain of your interpretation - have you been speaking with the authors of the legislation? And are they saying something different?

Janice said...

Section 8 clearly states what it takes to 'win' a vote. You figure that some off the cuff statement that may or may not have been made in the rotunda would take precedent over a section of the Trade Union Act?

Janice said...

Oh, I meant to point out that in your earlier post, you used the word 'quorum' when I assume you meant majority. Quorum required for a vote to be valid is the majority of eligible voters, which would be 50% plus 1.

What is needed to win a vote is laid out in Section 8 - a majority of those voting.

Brian said...

Correct, Janice, and both 'quorum' and what it takes to win the vote are laid out in section 8 of The Trade Union Act - and that section is unchanged by Bill 6.

Larry Hubich said...

Janice and Brian,

Thank you both for your comments.

I am glad that you are convinced that Section 8 takes precedence over Section 6 related to the establishment of quorum and what constitutes a majority for the purposes of the matter.

I view it in exactly the same way. So we are on the same page in that regard.

But, whether you accept it or not, there are those who disagree with our collective interpretation - and they have said so. And (no doubt) would be prepared to advance such an argument infront of a Labour Relations Board. Been there, heard that, got the T-Shirt.

If our collective interpretation is held to be correct then a system of "card majority" is a more accurate reflection of the wishes of the workforce.

Because in order to be certified with "card majority" 50% plus 1 must sign up for the union. Under a "mandatory vote" system with quorum set at 50% plus 1 of eligible voters voting to make a vote legal, and then only 50% plus 1 of those voting representing a majority - you only need 26% of total employees to vote in a union.

Card majority is more democratic than the other system.

See my previous post:

http://larryhubich.blogspot.com/2007/12/why-card-majority-can-be-more.html

Janice said...

I didn't bother to check your math, but in essence you are right in that less than a majority of the employees eligible to vote could, in fact, choose the union that would represent all employees.

Which is why I don't believe there would be any issue with employees not voting if they opposed the union. If they opposed the union, they would most certainly get out and vote, which seems to eliminate the SFL's main concern with the mandatory vote -- that the company could use the voting process to identify union supporters.

Larry Hubich said...

Janice,

Actually, the mandatory vote is only part of the "SFL's main concern". There are many additonal concerns - and each of them must not be taken in isolation of the others. Not the least of which is employer communication and "opinion" which is arguably in violation of the Freedom of Association provisions of the Canadian Charter of Rights and Freedoms.

The corporate lawyer(s) who drafted these amendments and the new "essential services bill" were very calculating in what they drafted (and in my opinion very anti-union).

I am convinced that these legislative changes and the language enacting them were not written by representatives from the Department of Justice or the Department of Labour.

They came from somewhere else.

Janice said...

If the LRB had not gone so far overboard in regard to employer communication, a change to the Trade Union Act would not be necessary. Now, however, In order to invalidate the rulings against employer communication that are currently on record due to LRB decisions - and that are cited by unions to support their position - it is necessary to change the Trade Union Act.

It has gotten to the point where an employer saying "I can not discuss the union with you, if you have questions you should contact the LRB" has been ruled as the employer influencing the employee.

In meantime, as I noted elsewhere, the union is free to use whatever tactics are deemed necessary in order to get certified.

The mandate of the LRB is not to be a neutral party. It is to ensure that as many workers as possible are represented by 'the union of their choice'. Except, of course, we don't get to choose because the Canadian Labour Congress has a 'no raid' policy. why isn't that policy illegal?

Larry Hubich said...

Hi Janice,

Thank you for your comments.

I do not agree with your assertion that the LRB has "gone overboard in regard to employer communication". Their decisions in this regard are consistent with decisions of the Supreme Court of Canada which acknowledge the serious power imbalance that exists between the employer and the employee.

If what you were asserting was accurate there would be far more decisions of the LRB overturned by the courts.

My information is that in the past number of years there have been somewhere in the neighbourhood of 1200 - 1300 decisions rendered by the Board. Yet less than a dozen have been overturned by the courts. This illustrates to me that the Board is not biased or acting contrary to the law, or contrrary to the Charter of Rights and the Constitution.

The mandate of the LRB is to administer the Trade Union Act. And the purpose of the Trade Union Act is to provide the legislative framework around which workers can exercise their Constitutional and Charter Rights under the Freedom of Association provisions. i.e. to form Unions. And whether workers want unions or not is absolutely no business of the boss. Just as workers in a company have no say in whether "their company" joins an employer association.

And finally, I support the CLC policy against "raiding". However, if workers want a different union - that is their choice. And I have no problem with that, so long as it's not an "employer dominated union."

Brian said...

Larry Hubich wrote: "And whether workers want unions or not is absolutely no business of the boss."

I think we can all agree the decision about whether to form a union is the decision of the employees (a.k.a. prospective union members). I believe we should also be able to agree such a decision should be made by the employees on the basis of having accurate and complete information, and without fear of intimidation.

There are certainly many situations where employees feel intimidated, or where they're asked to make a decision (e.g. certification) on the basis of partial information and, while that may serve the interests of one party or another, it's usually not in the best long-term interests of the employee.

Neither employers nor unions have the right to intimidate employees, nor should they have the right or ability to mislead or misinform employees. Unfortunately, I believe certain members of both groups (employers and unions alike) have been guilty of such practices - and I find such practices unacceptable - regardless of which one is doing it.

Larry Hubich said...

The Saskatchewan Trade Union Act prohibits unions from engaging in the type of activity referred to above by Brian.

"Section 11

(2) It shall be an unfair labour practice for any employee, trade union or any other person:

(a) to interfere with, restrain, intimidate, threaten or coerce an employee with a view to encouraging or discouraging membership in or activity in or for a labour organization,"

Brian said...

Agreed - but there are laws prohibiting speeding, shoplifting and drinking and driving and yet, somehow, these things continue...

Larry Hubich said...

Just like the (at least) 12% of employers who readily admit that as soon as they find out about unionization discussions in their workplaces they engage in activity that they believe to be illegal.

The rest of them think their anti-union behaviour is within the law.

http://larryhubich.blogspot.com/2007/12/get-ready-for-steady-onslaught-of-anti.html

Brian said...

It would appear you believe: a) 12% of employers admit to illegal anti-union activity; and b) the remaining 88% are behaving illegally, just not believing it to be so.

This is a very cynical perspective on employers and, while I believe there are "a few bad apples", I certainly don't believe they're all as bad as you perceive them.

Is it not possible more could be accomplished for the labour movement by setting aside rhetoric and cynicism, putting the fundamental issues of both sides "on the table" and working on solutions? As my mother told me, "you catch a lot more flies with honey than you do with vinegar."

Larry Hubich said...

Brian,

The statistic quoted respecting the illegal activity of employers is from Professor Slinn's analysis.

As for setting aside "rhetoric and cynicism" - despite numerous offers from the SFL, the current government does not appear to be interested in such an approach. Instead they have chosen a much more confrontational option.

As my mother told me - 'you can lead a horse to water, but you can't make him drink.'

Brian said...

Larry wrote: "The statistic quoted respecting the illegal activity of employers is from Professor Slinn's analysis."

So true, but your statement of "The rest of them think their anti-union behaviour is within the law." is your illogical conclusion about the remainder. You exclude the possibility there might actually be employers operating within the law.

So, your opinion appears to go beyond "guilty until proven innocent" to "guilty, guilty, guilty..."