No Bluff: British Columbia Government Introduces Card-Check Certification, Stacking the Deck in Favor of Unions | Stickman Elliott LLP

The Government of British Columbia has proposed amendments to the Labor Relations Code that will, among other changes, eliminate a secret ballot vote by employees in favor of automatic “card-check” certification where 55% or more of employees sign union cards

On April 6, 2022, the Government of British Columbia introduced Bill 10, the Labor Relations Code Amendment Act, 2022 (the “Act”), which proposes changes to the Labor Relations Code to permit automatic or “card-check” certification of workplaces without a vote where 55% or more of the employees in a bargaining unit sign union cards. However, if between 45% and 55% of the employees sign union cards, the Labor Relations Board (the “Board”) must hold a secret ballot vote to determine whether the employees want to unionize.

In addition, the Act proposes to permit unions to request, after they have applied to certify a bargaining unit, that a secret ballot vote be taken before the Board determines the appropriateness of the bargaining unit. The ballots would be sealed and not counted, pending the Board’s determination of the appropriateness of the bargaining unit.

Finally, proposed amendments under the Act will impact the construction sector by permitting employees the right to switch unions annually. Current provisions prevent employees in the construction sector from changing unions for a period of three years, which is often longer than the life of most construction projects.

The Act passed first reading on April 6, 2022, and is likely to pass third reading and receive royal assent in a matter of weeks.

Takeaways for Employers

The introduction of an automatic card-check system will see British Columbia join a minority of other provinces, such as Quebec, New Brunswick and Prince Edward Island, as well as federally regulated employers. Card-check certification typically makes the union certification process easier for unions by providing a more simplified, expeditious process as compared to a two-step system that includes a secret ballot vote. Card-check systems have been criticized for creating an opportunity for employees to be coerced into signing union cards against their will, without the safeguards of democratic choice, free of influence from the employer, the union and co-workers. Indeed, data indicates that employees who sign union cards do not necessarily vote to become unionized and that union certification drives are, on average, 19% less successful where a secret ballot is involved.

The ability of a union to request a vote prior to the determination of the bargaining unit will make it easier for unions to press for a speedy vote by all employees in a potential bargaining unit, even if it is not the ultimate bargaining unit applied for. Practically, this will allow unions to strike while the iron is hot and reduce the length of time an employer may otherwise have to respond to the union’s campaign.

Finally, the changes to the construction sector will make it easier for unions raids to occur. In particular, employers who are currently unionized by more pragmatic and business-friendly unions may find their workforces becoming targets for raids by other unions.

We will continue to monitor developments respecting these proposed amendments, but it is expected that they will easily pass and be proclaimed into law.

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