IRE244H — Weeks 4 & 5 Unionization Process in North America + Certification under the OLRA (Ontario)

1) Why workers join unions: classic reasons and the “experience good” model

  1. Four traditional reasons: social custom, economic incentives (wages/benefits; wage–effort bargain), voice in the workplace (representation on conditions), and workplace/legislative requirement (agency/security clauses or statute).

  2. Experience good framing (Gomez & Gunderson, 2004): people join when net value (V) is positive; costs are visible upfront but many benefits are only learned after joining. Baseline: (V=R-C). Extended: (V=θ·R - C) where θ ∈ [0,1] captures incomplete information about benefits; V>0 join, V=0 indifferent, V<0 don’t join.

  3. Why “experience”: benefits like job security, insurance against arbitrary action, pensions, and voice are revealed in use; switching costs can make membership durable.

  4. Implications: unions are hard to “sell” to non-members; early first-hand experience boosts long-run propensity to join; some propose default enrollment to overcome inertia. Empirical determinants (Freeman & Medoff, 1984): job dissatisfaction, perceived inequity, lack of influence, union power, priors about unions, and legal ease of obtaining union services (e.g., U.S. right-to-work states show low density).

  5. “Benefits of unions”: slides underscore better jobs and less inequality at the societal level (figures/tables referenced).

2) Supply side: when and where unions can form

  1. Opportunity depends on industry/location, the organizing strategy of the incumbent union in that sector, public policy, and the degree of employer opposition.

3) Unionization in North America: traditional vs new forms

  1. Traditional campaign example: Amazon Bessemer (Ala.) mail-in election; workers voted 2-to-1 against unionizing despite national attention (Biden/celebrities); over half cast ballots. Highlights logistical and employer-resistance hurdles.

  2. New independent/grassroots model: Amazon Labor Union (ALU)—an unaffiliated union started by worker Chris Smalls—achieved the first successful U.S. Amazon warehouse certification (Spring 2022).

  3. Unions as social movements: contemporary mobilizations link labour to social justice, climate, human rights (e.g., the revived Poor People’s Campaign), showing how 20th-century civil-rights energy extends into 21st-century union activism.

4) Hyman’s “Geometry of Trade Unions”: class–market–society triangle

  1. Eternal triangle: unions vary by orientation toward class (challenging capital), market (bargaining within the system), and society (broader social reform).

  2. Identity & evolution: union strategies reflect the interaction of the three vertices, adapting to class relations, economic and political change (including de-/re-globalization and technology).

  3. Variable geometry: no single form—sectoral context shapes whether unions are more bargaining-centric (market) or movement-centric (society). Slides pose: Where does Canada sit? (prompt for analysis).

5) The Ontario legal regime (OLRA): who, what, and baseline principles

  1. Certification = OLRB recognizes a union as exclusive bargaining agent for an appropriate bargaining unit; employer must bargain in good faith; unfair labour practices (ULPs) prohibited (e.g., firing supporters; threatening closure).

  2. Exclusions from OLRA: managerial employees; domestic workers; hunters/trappers; certain professions (architects, dental, land surveyors, legal, medical), and (technically) police. Agricultural and horticultural workers covered separately by AEPA, 2002.

6) Constitutional backdrop: associational rights and strikes

  1. 2007 — BC Health Services: Freedom of Association (Charter s.2(d)) includes the right to meaningful collective bargaining (not necessarily a strike right; arbitration could substitute).

  2. 2015 — SFL v. Saskatchewan (SCC): right to strike constitutionally protected; Saskatchewan’s PSESA absolute strike ban for designated “essential” employees infringed s.2(d) and was not justified under s.1.

7) Special case: agricultural workers in Ontario

  1. History: 1994 right to unionize → repealed 1995; Dunmore v. Ontario (2001) held the exclusion from OLRA unconstitutional and demanded legislative change; province enacted AEPA (2002)—associations allowed, no duty to bargain.

  2. Fraser (2011, SCC): AEPA constitutional; s.2(d) protects freedom of association, but scope for collective bargaining is restricted under AEPA. Bottom line from slides: FOA protected, not necessarily full collective bargaining.

8) Appropriate bargaining unit: OLRB criteria

  1. Board weighs: employer/union wishes, community of interest, nature of work, conditions, skill, organizational structure, avoiding unnecessary fragmentation, and typical separation of office vs production staff.

9) How certification can happen (Ontario): three routes

  1. Voluntary recognition: rare; common in construction and at U of T (Faculty Association treated as union without certification). Opt-out available in year one via OLRB; risk is lack of proven majority.

  2. Card-based (historical/sectoral) and vote-based models (details below).

10) Card-based model (pre-Nov 1995; plus later sector-specific revivals)

  1. Pre-Bill 40 (to Dec 1992) and Bill 40 era (Jan 1993–Nov 1995): unions could be certified by cards alone at high support; otherwise a vote. Thresholds: automatic if >55% cards; vote if 45–55% (pre-Bill 40) or 40–55% (Bill 40). Certification if >50% of ballots cast vote YES. Rationale: reduce employer intimidation (acknowledging risk of union pressure).

  2. Bill 40 facilitation measures: allowed FT + PT in one unit; $1 fee waived; allowed organizing on third-party property with public access (e.g., malls); lowered vote-trigger threshold to 40%; interim relief—reinstatement during drives.

  3. Bill 144 (2005): restored card certification for construction; restored interim relief; restored remedial (penalty) certification eliminated by the “Walmart amendment.”

  4. Bill 148 (2017): card certification extended to home care & community services, building services, and temporary help agencies; required remedial certification where employer misconduct taints votes; union access to employee contact info at ≥20% support (names/phone/personal email). Added first-contract mediation with arbitration if mediation fails.

11) Vote-based model (since Nov 1995 in general)

  1. Bill 7 (1996, PC): repealed many Bill 40 provisions; eliminated card certification; mandatory secret-ballot vote in every application; removed interim reinstatement power; 1998 “Walmart amendment” removed remedial certifications.

  2. Current mechanics: union files; if >40% cards in unit, OLRB orders a secret-ballot vote within 5 days; union certified if >50% of votes cast are YES. Rationale offered: truer employee preferences, counter-speech by employer, and sufficient support for viable bargaining.

12) Organizing drive mechanics and obstacles

  1. Process: contact → card signing to reach ≥40% → OLRB unit determination → vote within 5 days (vote model) or direct certification at >55% (card model, where available).

  2. Difficulties (Foodora and others used as prompts): cost to union; unknown unit composition; no right of access to premises; no employee list; fear of reprisals; employees can’t abstain in small groups; and the general experience-good barrier (θ<1) making adoption harder.

13) Political cycles and the OLRA “pendulum”

  1. Six periods (approx.): Pre-Bill 40 (Liberal, 1985–92) → Bill 40 (NDP, 1993–95) → Bill 7 (PC, 1996–2003) → Bill 144 (Liberal, 2004–2017) → Bill 148 (Liberal, 2017–2018) → PC rollback post-2018 (no new OLRA beyond rollbacks noted). Pattern: NDP most pro-union; PCs more pro-business; Liberals “balancers.”

14) Empirical evidence: what legal regimes change

  1. Certifications (Martinello, 2000): relative to Jan 1987–Aug 1990 (Liberal, Pre-Bill 40) → NDP/Bill 40 (1/93–6/95): applications attempted +23.6%, success rate +9.1%; PC/Bill 7 (11/95–5/98): applications −19.4%, success rate −11.9%.

  2. Election delay (Campolieti, Riddell, Slinn, 2007): delays reduce certification success, both where time limits didn’t exist and where they were often breached. Mandatory votes (Slinn, 2004) had a highly significant negative effect on the probability of certification in Ontario (1995 change).

15) Unfair Labour Practices (ULPs)

  1. Purpose: keep certification free of undue employer or union influence. Examples: firing organizers, threats to close/relocate, changing terms after application; unions also cannot intimidate workers to join/avoid other unions. Remedies include reinstatement, cease-and-desist, and in serious cases remedial certification (now compulsory under Bill 148 when taint proven).

16) First Contract Arbitration (FCA)

  1. Provision since 1986; minimum CA duration 2 years. Granted where employer refuses to recognize authority, bargaining is uncompromising, or parties fail to make reasonable/expeditious efforts.

  2. Rationale: first contracts often see hostility after acrimonious campaigns; FCA avoids strikes, functioning like a “trial marriage” so parties acclimate. Concern: strikes could just shift to second contract, but cooling-off may help.

  3. Evidence (Weinberg, 2015): FCA associated with 20–37% fewer decertifications; automatic/fault forms most robust; mediation–arbitration may have the largest effect; FCA + card-check yields best outcomes for durable bargaining relationships.

17) Successor rights

  1. If a business is sold, the new owner inherits the union (and related obligations); the OLRB can find substantial continuity even if the new entity is legally distinct (e.g., same type of business, same location). Richtree™ Eaton Centre (2013–14): closure and reopening with non-union staff led to OLRB ruling in favour of UNITE-HERE, enabling bargaining and potential employment for displaced workers.

18) Decertification: how a union is removed

  1. When: union inactivity; no first contract in year one in jurisdictions without FCA; employer closure; or employee-initiated petition.

  2. Process: ≥40% support triggers application; must be filed in the open period (last 2 months of CA); majority vote to decertify.

  3. Evidence (Martinello, 2000): relative to the same Liberal baseline → NDP/Bill 40 (1/93–6/95): applications −21.4%, success −12.7%; PC/Bill 7 (11/95–5/98): applications +32.2%, success +3.7%.

19) The Walmart saga in Canada (illustrative case law/policy dynamics)

  1. Entry: 1994–95 acquisition of Woolco; Walmart did not buy ~¼ of unionized stores (those were closed).

  2. Windsor, ON (1997): employees initially voted against union; OLRB found illegal shutdown threats and issued penalty (remedial) certification; a contract was negotiated but litigation followed; eventually employees decertified.

  3. Jonquière, QC (2004–2014): certified Aug 2004; union sought first-contract arbitration (Feb 2005); Walmart announced closure within a week (profit-target rationale). Quebec LRC held closure was to avoid the union; after appellate reversal, the SCC (2014) restored the arbitrator’s decision: closure was an unfair labour practice; compensation owed to terminated employees. The closure chilled organizing at other stores.

  4. St-Hyacinthe, QC (2005–2009) and Gatineau, QC (2010–2011): certification and FCA-imposed contracts (e.g., $0.30/hr increases for two years in St-Hyacinthe); later decertification at Gatineau.

  5. BC & Saskatchewan: Terrace, BC (2004) vote void (<45% card support due to managers in unit); SK LRB compelled document disclosure over Walmart objections; courts upheld LRB’s authority.

20) U.S. reform attempt: Employee Free Choice Act (EFCA)

  1. Proposed 2008/2009 (Obama): shift to card certification, first-contract arbitration option; not passed. In U.S. debate, Canadian-style protections sometimes framed as “ambush election rules.”

21) Timelines & regime comparisons (Ontario)

  1. Pre-Bill 40 (to 1992): $1 membership fee; no third-party-property organizing; auto-cert at >55%; vote at 45–55%; OLRB remedial cert power.

  2. Bill 40 (1993–95): FT/PT combined units; fee waived; third-party property access allowed; vote-trigger lowered to 40%; interim relief reinstatement powers.

  3. Bill 7 (1996–2003): mandatory voting; no card-check; removed interim relief and remedial cert (via Walmart amendment).

  4. Bill 144 (2005): construction card-check restored; interim relief restored; remedial cert restored.

  5. Bill 148 (2017–18): mandatory remedial cert if taint; card-check in home care/community, building services, temp help; 20% data-access rule; first-contract mediation → arbitration.

22) Full process maps (side-by-side)

Card system (where available / historically):

  1. Seek EE support via cards → 2) If >55%, automatic certification; if 40–55%, secret-ballot vote → 3) >50% of ballots cast YES ⇒ certified.

Vote system (default since 1995):

  1. Seek support via cards → 2) If >40%, OLRB orders secret-ballot within 5 days → 3) >50% of ballots cast YES ⇒ certified.

23) Consolidated exam prompts you can answer from these notes

  1. Use (V=θR−C) to explain why union selling is hard and how policy (Bill 148 data access) or default exposure can shift θ upward.

  2. Contrast card-check and mandatory vote with empirical outcomes (Martinello; Slinn; Campolieti/Riddell/Slinn).

  3. Lay out ULPs and remedies, including remedial certification (pre/post Bill 148).

  4. Explain FCA purpose, criteria, and evidence on decert reduction and stability.

  5. Analyze Walmart cases (Windsor; Jonquière; SK/BC) to show interaction of law, strategy, and outcomes.

  6. Situate ALU vs Bessemer within Hyman’s triangle and “unions as social movements.”