Human Resources Committee on April 18th, 2016

[The Chair, Liberal, Bryan May]

There's a bit of a glare, so I've been referring to my phone, if that's okay, because if you sit here, you can't really see it as it comes along the bottom.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Chair, just for future reference, I think what you're saying is that the time you're going to be using is your BlackBerry, and I thank you for that clarification.

[The Chair, Liberal, Bryan May]

Okay.

Now that that's figured out, I would like to welcome our new guests, our new panellists. Via video conference from Berkeley, California, coming to this committee as an individual, is Andrew C. L. Sims.

Thank you for joining us, sir.

[Andrew C.L. Sims, As an Individual]

Well, I'm actually here. I may look like an American, but I'm actually Canadian.

[Some hon. members]

Oh, oh!

[The Chair, Liberal, Bryan May]

Oh, I apologize. I'm reading this from the bottom up, apparently. Sorry.

In person, Mr. Sims, welcome.

[Andrew C.L. Sims]

Thank you.

[The Chair, Liberal, Bryan May]

Via video conference from Berkeley, California, also coming to this committee as an individual, is John Logan, professor, labour and employment relations, San Francisco State University.

Welcome, sir. Can you hear me?

[Dr. John Logan, Professor, Labour and Employment Relations, San Francisco State University, As an Individual]

Thank you.

[The Chair, Liberal, Bryan May]

Also by video conference, from West Vancouver, British Columbia, also coming to this committee as an individual, is Sara Slinn, associate professor, Osgoode Hall Law School, York University.

Welcome.

[Dr. Sara Slinn, Associate Professor, Osgoode Hall Law School, York University, As an Individual]

Thank you.

[The Chair, Liberal, Bryan May]

We're going to start with Mr. Sims' presentation. Please keep it under 10 minutes. Thank you.

[Andrew C.L. Sims]

I think I can accommodate you in much less than 10 minutes, Mr. Chair.

Let me introduce myself in terms of why I'm here and the experience I'm prepared to expose to you, should you want to ask questions.

My career for 42 years has been in labour relations. In 1984 I left a legal practice to join the ranks of the neutrals and became, first, a vice-chair for a year and then then chair of the Alberta Labour Relations Board until 1995. I was there 10 years. I continued as a vice-chair of that board until 2015. I've also served as a vice-chair of the Canada board for three years and, probably of most significance to your deliberations, chaired the 1996 task force to review the Canada Labour Code that resulted in the report, “Seeking a Balance”, which I'm going to make some brief reference to.

That report resulted in fairly significant changes to the Canada Labour Code, enacted in 1998. Those provisions, other than essentially the provisions we are discussing today, have been the framework for Canadian federal labour relations ever since 1998, through to 2016.

I want to speak first about process. When my colleagues and I—my colleagues Rodrigue Blouin from Quebec and Paula Knopf from Toronto—were commissioned to do the task force, we consulted very early with the parties to federal labour relations and on our own experience. We had three board chairs, three experienced arbitrators.

Our view, and the view of virtually everybody we consulted with, was that this was a successful tripartite system. We encouraged the parties to meet together not only to put their briefs forward, but to discuss things at a series of round tables. In a room like this, we had a consensus process that met about 10 times.

Probably the proudest day of my professional career was sitting in a room like this with a federal minister. It had been initiated by Minister Robillard, but it was Minister Gagliano by the time we were done. There were two groups, the representatives of federal employers and the representatives of the Canadian labour movement. They both said to us, and more importantly, to the minister of the day, “We don't agree with everything that is in this report.”

One side disagreed with a couple of things, and the other side disagreed with a couple of things—significantly, one of which was the card system—but both said very clearly and ultimately enthusiastically that it was a package deal, something they could both live with, and a framework that they could buy into and use to administer their labour relations. I believe the bill that came out of that was a successful revision to the Canada code. I think it has worked.

We said in our preamble, if you can pardon me for reading just a bit:

We want legislation that is sound, enactable and lasting. We see the too frequent swinging of the political pendulum as being counter productive to sound labour relations. We looked for reforms that would allow labour and management to adjust and thrive in the increasingly global workplace.

We said further on, at page 40, in describing the criteria for reform, that:

stability is desirable and pendulum-like changes to the Code do not serve the best interests of the parties or the public; consensus between the parties is the best basis for advocating legislative change; recommendations should be enactable, long-lasting and premised upon the overriding concept of voluntarism.

I won't go on and read more, but we went on at some length, first, about what we thought was the reason we were successful in getting consensus, and second, the importance that consensus plays in a labour relations system. I have not changed my views on that.

I have now been involved in administering labour boards, arbitration, and mediation in the federal and provincial industries. I've done a number of legislative reviews. I still believe firmly, even passionately, that political interventions that are seen as deliberately tipping the pendulum are corrosive of labour relations. They prompt the other side to go away from the bargaining table and common interests, and to pursue political solutions to gain an advantage. That is disruptive of our labour relations system, which ultimately requires both sides to face economic realities head-on and not use legislative advantages to try to defeat the other.

It's a fairly strong expression of views, but it is not simply my personal experience. It is founded on the last 30-year—and I think the most significant 30 years—review of the Canada code, and the people whose laws will be affected.

In my view, the two bills that are repealed by Bill C-4 failed to meet that criteria. They both had the air of one side seeking political intervention for more ideological, economic, or relationship reasons, and they have corroded the view that legislative reform at the federal sector is based on the tripartite model.

I have some specific comments, but I'm not going to go through them. I think I'm going to leave them for questions.

I will say one thing, and I think this is very important given the discussion I heard earlier. I heard several comments about every other country in the world. With our American partners, although their system is unique in many ways—unique is perhaps a euphemism—some of their system trumps ours.

[Voices]

Oh, oh!

[Andrew C.L. Sims]

That's a bad joke, isn't it?

The uniqueness of our system compared with the European system is this. You can have two unions in the European workplace, and people can choose which union or no union. You are each elected on a first-past-the-post basis within a constituency. We have a labour relations system based on the same approach. The union represents everybody once elected, and represents nobody if not elected. That is different from the European system. To compare the two without recognizing that difference, I think distorts the debate.

Those are my introductory comments, Mr. Chair.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you, Mr. Sims. I especially thank you for making sure we had a Donald Trump reference in the public record. I appreciate that.

On our way down to the States actually, we welcome Mr. John Logan, professor, labour and employment relations, at the San Francisco State University. Welcome.

If you wouldn't mind...your opening remarks, sir.

[Dr. John Logan]

Thank you.

I'll also keep my remarks brief and obviously my remarks are aimed at the U.S. experience with union financial reporting and with mandatory elections.

To a large extent, the Canadian bills we're discussing were based on the U.S. experience. It's certainly my experience that both the union financial reporting that was introduced during the Bush II administration, which Bill C-377 was based upon, and the experience of mandatory elections in the United States have really been a failure and researchers have demonstrated repeatedly that this has not been good public policy in the United States.

I published a number of articles on union financial reporting in the United States, most recently an article last year comparing the approaches of the Obama and Bush II administrations.

As I've said, the law governing union financial reporting in the United States was past in the late 1950s, but what we got in the early 2000s under the Bush administration was a significant departure from past practice, whereby they imposed far more detailed, far more complex, far more onerous reporting burdens on unions in the name of promoting greater accountability and transparency. They clearly have failed to achieve this.

As I've said before, it was those rules that Bill C-377 was largely based upon.

The Obama administration has reversed the majority of those rules and has adopted voluntary compliance programs with unions whereby it works co-operatively with unions at the national level to uncover cases of fraud and embezzlement. In fact, it has a much better record than the previous Bush administration in this regard. However, if the goal of the Bush financial reporting role was to impose a much more onerous administrative burden on unions, they certainly achieved that much.

Research done by two senior scholars at Cornell University and Penn State University in the United States—and I can talk in more detail about that research—demonstrated that unions were having to divert a great deal of personnel and of financial resources, and adopting new accounting methods, in order to comply with these new rules. It was, in fact, a very onerous burden that was placed upon unions, and in fact, a very costly burden that was placed upon the federal government, but one that had no apparent benefit for ordinary union members. In fact, I would say it was quite the opposite. I would say that ordinary union members were hurt significantly, because, ultimately, they were the ones who had to pay the cost of complying with these new complex reporting regulations. Union officials, whose time would previously have been taken up negotiating contracts, providing services, and doing other things that union members want them to do, were no longer able to do that. They were instead having to make sure that the unions were in compliance with the new reporting rules.

I think it was clear that the only people who really benefited from these new rules were certain organizations who were hostile to unionization and to collective bargaining. In fact, in the article I mentioned, the comparison of financial reporting under the Obama and Bush administrations, I cite several examples of organizations that are hostile to unions that make clear that they benefited tremendously from these new complex regulations, but ordinary union members did not benefit.

As I said, overall I think it is very clear that the reporting regulations that Bill C-377 was based upon were a failure in the United States. They did not bring about greater transparency or accountability. They did not uncover more cases of corruption or embezzlement. However, they did impose a significant administrative burden on unions, and they did prevent unions from providing better services to ordinary union members.

Second, and just briefly, on the mandatory elections.... The United States, of course, has several decades' experience with mandatory certification elections, and it has not been a positive experience. The United States is widely recognized among advanced anglophone countries to have the largest representation gap, i.e., the gap between the percentage of employees who say they would like to have union representation and the percentage of employees who actually have it and who are able to get union representation under the system of mandatory elections.

The person who perhaps has studied this the most is Harvard economist Richard Freeman. I will quote briefly from a study that Freeman did a few years ago. He says, “The gap between what workers want and obtain in representation is greater in the United States than in any other advanced English-speaking country.”

According to Freeman, about one half of non-union workers in the United States desire union representation but don't have it, a figure that is significantly larger than the 25% to 35% gap we see in Canada and in other advanced anglophone countries. Mandatory elections in the United States have not delivered union representation to those workers who want it. In fact, the record in the United States is far worse than it is in Canada or in other advanced anglophone countries.

The other consequence of mandatory elections is that the United States has an appalling record when it comes to unfair management practices during certification campaigns. The organization that has studied this most thoroughly is the Center for Economic and Policy Research, based in Washington, D.C. One of their recent studies estimates that workers were illegally fired in approximately 30% of union certification elections in 2007, and that 96% of U.S. employers engaged in anti-union campaigns of varying levels of aggressiveness and illegality.

Again, these are significantly higher levels than we find in Canada. Anti-union campaigns are not unusual in Canada, but more American employers engage in anti-union campaigns. More American employers engage in illegal actions during anti-union campaigns. In part, this may simply reflect the fact that Canada is a more civilized country, and I am perfectly willing to concede that this is in fact part of the explanation. However, there is also the issue that Canadian employers, because of the mixed system of card-check certification and elections, have far fewer opportunities to engage in illegal practices than do their American counterparts.

I'll finish by quoting from the Centre for Economic and Policy Research study from 2012 I cited earlier, which concludes, “Compared to Canada, many workers in the United States are not able to exercise their right to freely join and form unions and participate in collective bargaining, in large part due to employer opposition, which current labor policy fails to adequately address.”

In conclusion I would say that far from Canada learning from the U.S. experience when it comes to the issues of union financial reporting and union certification, perhaps it's the United States that has much to learn from Canada when it comes to these two critically important public policy issues.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you, professor.

Now on to Sara Slinn, associate professor, Osgoode Hall Law School, at York University coming to us from West Vancouver, British Columbia, welcome.

[Dr. Sara Slinn]

Thanks very much.

I'll focus my comments on the representation procedures, reflecting my research experience in this area, and will address two aspects of these procedures: the nature of votes, and the academic research on the effect of choice of procedure on certifications.

In terms of the nature of representation votes, first of all, the confidential nature of votes shouldn't be overstated when assessing the reliability of mandatory vote representation procedures. Both employers and the union know which employees voted and which did not, in every vote, and know how many ballots were cast for and against unionization. This encourages employers and unions to draw conclusions about individual employee's choices and likely discourages some employees from voting, particularly in smaller units or where fewer ballots are cast.

Secondly, there is a faulty political election analogy at work here. Mandatory vote supporters commonly rely on a political election analogy founded on the view that certification votes are analogous to political campaigns and elections. The attraction of this argument is understandable, appealing as it does to ideas of free speech and informed choice and workplace democracy, but it's a false analogy.

The nature of union representation is not analogous to government power or political representation, and as a result, the nature of decision-making in a union vote is not analogous to that in a political election. First, the nature of the decision is different. Certification doesn't transform the employment relationship. It simply introduces the union as the employee's agent for the limited purpose of bargaining and administering any collective agreement that the union may be able to negotiate. The employer's overriding economic authority over employees continues in any event.

Secondly, there is no non-representation outcome possible in the political context. In political elections citizens vote between two or more possible representatives. There is no option to be unrepresented, so as Becker, for example, has pointed out, if union representation elections were to be analogous to political elections, then it would be a vote among different collective employer representatives with no option for non-representation. That's simply not the system that we have anywhere in Canada.

Finally, in terms of cards being a reliable measure of employee support, it's often contended that votes more accurately indicate employees' desire for union representation than cards, suggesting that card-based certification fosters union misconduct to compel employees to sign cards. Although this is possible, there is no evidence, either in academic studies or in the case law from jurisdictions that use this procedure, that it is a significant or a widespread problem. Anecdote isn't evidence, and certainly it shouldn't be a compelling basis for legislative change in the face of a lot of academic research finding that mandatory vote systems have negative effects on labour relations and that employer interference in certification is indeed a significant and widespread problem.

In terms of the academic research on the effect of the choice of procedure—vote versus card-based certification—you're likely already familiar with a lot of this so I'll be relatively brief and leave it largely to your questions if you want to go into more detail on these particular topics.

First of all, studies have consistently concluded that mandatory vote procedures in Canadian jurisdictions are associated with statistically significant reductions in certification application activity, including certification success rates. This is in the order of about 20 percentage points. Reduced organizing activity—that's applications as well as certifications—are found to be concentrated in typically more difficult to organize units where we're talking about weaker and more vulnerable groups of employees. The increased opportunity for delay and for greater opportunity for employer unfair labour practices are identified in the research as contributing to these effects.

Just on some earlier comments querying how it could be that employers could engage in unfair labour practices or anti-union activity in the vote procedure, it's clear how this can happen.

In every case, in a vote-based procedure, the employer is notified by the labour board that a certification application has been made. It then has the period between that notification and the date of the vote. In most jurisdictions in Canada, in all but two, there is a deadline for that vote. It's between five and 10 working days. Under the Canada Labour Code, there is no deadline for that vote.

This provides ample time for employers to engage in anti-union campaigns. Anecdotally I've heard of five-day plans where it's advertised what the employer must do on each of the days, for example in the five-day period in Ontario between the application and the vote, to defeat the certification. There's no evidence there isn't sufficient time for employers to respond between the application, the notification, and the vote.

Secondly, there's quite a bit of research on delay in the vote process. Representation votes, by requiring a vote in addition to submitting evidence, necessarily result in a longer certification procedure. It has been found that it significantly reduces the likelihood of certification where there's either no time limit—as is currently the case under the Canada Labour Code and other federal legislation—or the time limit's not well enforced. This is in the order of 10% to 32%.

These studies concluded that a combination of enforced statutory time limits and expedited hearings for unfair labour practices was necessary to satisfactorily offset these negative effects. Neither of these are currently available.

Delay should be a real concern under the current provisions, and it is something that Bill C-4 would in part address.

In terms of employer interference, the vote-based procedure gives employers a substantial opportunity to seek to defeat the organizing attempt. There are numerous studies showing this is not only widespread, but effective. A large percentage of managers surveyed in some of these studies admits to engaging in what they believe to be illegal unfair labour practices to avoid union representation.

Survey evidence by Lipset and Meltz has also found in Canada that non-union employees expect employer retaliation and expect anti-union conduct by employers. Research by Mark Thompson at UBC has found that Canadian employers are no less anti-union in their attitudes toward unions than U.S. managers. That is something also to keep in mind.

In terms of remedying employer interference, the dilemma with the mandatory vote procedure is that, on the one hand, quick votes are seen as necessary to protect employees from inappropriate employer interference, and on the other hand, holding a vote quickly might not allow labour boards an opportunity to effectively remedy employer unfair labour practices. The vote can be held before the unfair labour practice can be heard and a remedy awarded.

Employees require greater protection from employer interference under a vote system. These include access to expedited unfair labour practice procedures and more substantial interim remedies, but such necessary protections were not provided by Bill C-525.

I'll make a comment regarding the Bill C-377 changes. Disclosure is already required for unions for all bargaining unit employees. I'd also like to echo Mr. Sims' comments that in Europe there is a very different approach to labour relations. The difference in the approach to disclosure and to union finances is embedded in a very different labour relations system. The Canadian and U.S. system is, in the broader international perspective, an extremely unique labour relations system, and it's inappropriate to consider transplanting one specific element of an interwoven very different system.

In closing, the Bill C-4 proposed amendments reversing the Bill C-525 and Bill C-377 changes, particularly to representation procedures, are a change that better protects employees' decision-making about collective representation.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you very much, Professor Slinn.

Our first question is from Mr. Barlow. Welcome, by the way.

[John Barlow, Conservative, Foothills, AB]

Thank you very much. It's good to be here, Chair, and good to meet all of you as well. I haven't had a chance to say hi to everyone, but thanks for having me today.

Thank you very much to our witnesses for spending some time with us today.

Andrew, I want to ask you some questions first. I kind of want the Canadian input.

We've talked a lot today about employers and unions, but we haven't talked a lot about union or potential union members. I think what this really should be about is what is best for union members.

From what I've heard from residents of my constituency, whether they're in carpentry or mining, or pipefitters in the oil and gas sector, they liked what was in Bill C-525 and Bill C-377. It could certainly be different in other communities. We did some pretty substantial polling, and we saw that well over 80% of union members supported the changes that were in these two bills.

I'm wondering if anything has been done more recently. I think our poll was 2014. How do we come up with saying we don't want these things, when the word we're getting from union members is that this is something they do want?

[Andrew C.L. Sims]

Polling like that is a bit like comments on Twitter. It's covered in 140 characters. It's the way you ask the question. Most union members, in my experience, and I've dealt with them for many years.... Sure, they want to know what the union is spending. Where's the forum to get that? It's from their union.

Now, that's entirely different than saying that they want their union not only to have to file these huge forms but to answer every question that comes from every person, whether a union member, or a busybody who is fussing around on the Internet trying to figure out why union president X paid $3,672 for an arbitration. It's a huge burden. I talk to these people daily, and not just the business agents. I talk to ordinary union members, and I don't hear them saying they want that sort of thing.

I'm sorry if that disagrees with your surveys, but it's not my experience.

[John Barlow, Conservative, Foothills, AB]

No, that's why we're here and we're asking these questions. We want to hear from you.

On the secret ballot, I've certainly had opinions on the secret ballot and I've definitely heard different ones on that. What is your feeling on their thoughts on the secret ballot?

[Andrew C.L. Sims]

I have experience with both systems, because in 1988 the Alberta labour code switched from a card system to a secret ballot system. I was certainly of the view that to make that work it was essential to have very early votes, no more than 15 days from the application for certification. I carried that experience with me when we went through the federal review.

Remember, the federal jurisdiction, though it's not obvious from the income tax provision, is limited to what I call the trains and boats and planes jurisdiction. Your bargaining units are largely huge cross-national bargaining units, and the voting system is a very impractical, time-consuming process. Frankly, though I'm quite open to both systems, in the federal system, based on the consultations we had, it wasn't worth the candle. It wasn't giving you more democracy. It was giving you much more delay and much more cost, and it wasn't anything that the parties we consulted with—not only labour and management, but the public as well—saw as a major issue. Management was in favour, and we recognized that in the report.

I want to say one more thing about the vote system that hasn't been mentioned. We did make a very significant change to the Canada code. Certification is only one step. The major step with unions and management is the decision to take a strike or lockout, and in 1998 we introduced a mandatory strike vote. That vote has to happen before you have the major feature of industrial action. Nobody is talking about that, but that is the main check, that employees support the union in the crucial position they're taking. That was new and that has worked well.

[John Barlow, Conservative, Foothills, AB]

Thank you. I'll go to our other two panellists, if you don't mind.

Sarah and John, thank you for taking the time to be here.

You both spoke about some of the studies you've done. John, I think you mentioned one with the centre of economic policy.

I have two quick questions. First, would it make a difference if we legislated a time limit on voting if we used a secret ballot?

Second, you talked about all of the influence and pressure from business owners to ensure that they stop unions from certifying, but I think we'd be naive if we didn't say that it also happens in the other direction. What kinds of studies have been out there in terms of influence, intimidation, and pressure from unions when it comes to the card-check system?