After amending the Labour Relations Code (the “Code”) in 2022 to allow for automatic card-check certification, 2023 saw the highest number of union certification applications in British Columbia since 2001.
B.C. Labour Relations Board’s Annual Report Proves the Deck is Stacked in Favour of Unions
The NDP’s 2022 amendments to the Code re-introduced single-step “card-check” certification in the province. This system permits automatic certification of a union without a representation vote where the union can demonstrate support of 55% or more of the employees in a bargaining unit. For details on the full amendments, see our initial blog here. Based on the Board’s recent data, our prediction that the amendments would “stack the deck” in favour of unions has proven correct.
In its annual report for 2023 (the “Report”), the Board provided a tally of certification applications filed last year. Leaving aside the artificial surge in applications in 2004 (when bargaining units were required to be recertified), 2023 saw the most certification applications since 2001; coincidently, the last year the province was under a card-check system. 2023 also saw the highest number of certifications granted since 2005. By the end of last year, unions sought to certify a staggering 22,000 employees in British Columbia, with 8,996 employees certified so far.
The Report confirms that the rise in unionization in the province comes on the heels of the card-check amendments. Indeed, out of the 194 certifications granted in 2023, 179 were successful through card-check (i.e., 92%). While a union’s membership support is not typically disclosed in the certification process, the Report reveals that card-check certifications were granted with an average of 76% membership support (i.e., 22% over the threshold for a vote).
Additional Updates from the Labour Board
The Report also provided the following interesting updates on certifications generally:
- Along with the rising trend in certifications, the Board identified an increase in unfair labour practices complaints over the previous year;
- The Board received 19 requests for remedial certification in connection with an unfair labour practice, but only one was granted;
- The Board acknowledged longer delays in processing applications and issuing decisions. The Board warned that if the increased activity continues in 2024, it expects these delays to grow; and
- 62% of Board hearings were conducted virtually in 2023, demonstrating a possible permanent shift in favour of virtual proceedings.
Takeaways for Employers
The card-check system has brought an increase in union organizing activity in the province as unions are often able to gather signed membership cards undetected, prior to filing for automatic certification. As noted by the Board in its Report, union organizing has also become more sophisticated with the use of new technologies and practices, which also makes these activities much harder to detect than traditional organizing.
Under this system, employers are often caught by surprise by a union’s certification application and are denied the opportunity to discourage unionization (through statements of facts and reasonably held opinions) following receipt of the application. Employees may therefore be left with one-sided information from unions, and, in cases of union intimidation or coercion, without an ability to express their true wishes on union representation through a secret ballot vote.
It is important for employers to take proactive and measured steps to address the growing possibility of unionization at their workplace under the card-check system. If a workplace is already experiencing an organizing drive, employers have strict obligations to avoid interfering with, or compelling, employee choice in respect of unionization.
Employers should seek legal counsel if they need assistance with possible or ongoing union organizing activity at their workplace, particularly given the increase in unionization in the province and the significant implications of the card-check system.
[View source.]
