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BACKGROUND

A. The United Steelworkers in Ontario

B. The Attack On Employee Rights In Ontario: A Review

C. The Result Of The Progressive Conservative Attacks On Labour Rights

1. The Effect on Certification Numbers

2. The Reasons For The Drop In Certification Numbers

PROPOSALS

PART I: RESTORING CARD BASED CERTIFICATION

i. History And Rationale

ii. The Experience In Other Canadian Jurisdictions

iii. Conclusion

PART II: RESTORING THE POWER AND EFFECTIVENESS OF THE ONTARIO LABOUR RELATIONS BOARD

1. Restore the Unfair Labour Practice Certification Power

i. History And Rationale

ii. The Need To Eliminate Any Support Requirement

iii. Other Jurisdictions in North America

iv. Conclusion

2. A Restored Interim Order Power

3. Expedited Hearings in Certification Matters and Unfair Labour Practice Complaints

4. Renewed Independence and Budget for the Ontario Labour Relations Board

5. Lifting the All-Union Bar on Applications After an Unsuccessful Drive by a Particular Union

6. Increased Damages for Unfair Labour Practice Violations

PART III: AMENDMENTS TO ENSURE EMPLOYEES CAN MAINTAIN THEIR UNION

1. Restore Just Cause Protection while Awaiting a First Collective Agreement

2. Automatic Access to First Contract Arbitration

3. Successor Rights in the Contract Service Sector

CONCLUSION

INTRODUCTION

Representatives of the United Steelworkers met with the Minister of Labour and his staff on December 15, 2003, and again on April 8, 2004 along with representatives of the Ontario Federation of labour and the Ontario Public Service Employees Union. At those meetings, we expressed our interest in providing input to the Minister on a wide range of public policy matters and legislation that affect employees in Ontario - both union members and non-union members.

This submission deals mainly with the rights of employees to make free and uncoerced decisions about union representation and membership. It is focussed on this topic because we believe that the right of employees to associate, to join the trade union of their choice and to bargain collectively with their employer is the most fundamental and basic labour right.

Employees cannot effectively raise their standard of living without the right to join trade unions. The effective enforcement of other key labour rights such as health and safety, workers compensation, minimum standards, pay equity and the right to a workplace free from discrimination is often not possible without a trade union.

The Minister has expressed a strong interest in improving health and safety standards in unionized workplaces and in, for example, extending the reach of progressive health and safety measures into the agricultural sector. These are worthy goals and the United Steelworkers supports them. But the clear link between workplace safety and union density rates makes reform of the organizing provisions of the Ontario Labour Relation Act an important health and safety initiative on its own. Unionized workplaces are far more likely to have functional health and safety committees with informed and empowered employee members. Unionized workplaces provide employees with the knowledge and, importantly, the security to identify workplace hazards and work to eliminate them. Repairing the Ontario Labour Relation Act in order to provide non-union employees in Ontario a fair system of choosing union membership will advance the vital cause of workplace health and safety.

The United Steelworkers submits that unless the right of working people in Ontario to join a union is restored, the standard of living in this province is threatened. Hence, it is essential that the restoration and effective protection of this basic right be at the top of your Ministry's agenda.

The United Steelworkers of America is an international union representing approximately 80,000 members in Ontario. In addition to our well-known membership in core industrial sectors such as mining and steel, the Steelworkers has grown into the most diverse unions in the province, representing employees in all areas of manufacturing including electronics, auto parts, rubber, aluminum and glass, plastics, appliances and paints. We also represent a rapidly growing membership in the service sector in workplaces like call-centres, retail stores, hotels, banks and nursing homes. Our Union has been at the forefront in organizing security guards, truck drivers and university employees.

We are committed to helping unrepresented employees join our union. We are particularly responsive to the organizing needs of the most vulnerable workers, including women, recent immigrants, employees with disabilities and those who experience intolerable and unsafe working conditions and the arbitrary and unfair exercise of employer authority. These Ontarians have sought membership in our union in large numbers over the last twenty years and, as a result, the Steelworkers has been at the forefront of heated and protracted certification disputes with anti-union employers.

From the Radio Shack campaign in the late 1970's to the infamous Baron Metal campaign in the late 1990's, we have been involved in Ontario's most difficult certification campaigns. We are acutely aware of the importance of every employee's right to join the union of their choice without the fear of intimidation and coercion. As one of the most active organizing unions in Ontario, we are uniquely placed to provide insight into the changes necessary to the current certification regime in Ontario.

Prior to 1995, the history of post-war labour relations in Ontario was characterized by a gradual, cooperative evolution of labour relations legislation. This led to a relative degree of labour peace. Under successive Progressive Conservative governments, as well as Liberal and NDP governments, the core rights of employees and unions were generally respected and the importance of labour-management cooperation was recognized by government.

However, beginning in 1995, the Conservative Government of Premier Mike Harris dramatically changed labour relations in Ontario. Within months of taking office, the Harris Tories introduced Bill 7. It was the most regressive, anti-union and anti-worker labour legislation in Ontario history. Bill 7 was a complete re-writing of the Ontario Labour Relation Act (hereinafter the "Act" or the "OLRA"). Of particular importance were the changes made to the certification process through which employees are able to select and join a trade union.

The most significant change to the Act introduced by Bill 7 consisted of the advent, for the first time in decades, of mandatory certification votes even where a majority of employees in the workplace had already indicated majority support for a union through the provision of signed membership evidence, usually in the form of union membership cards. The Harris government asserted that its reforms made the certification process more "democratic".

Decades of labour relations experience since the 1950's demonstrate that representation votes are inherently and profoundly undemocratic. Mandatory representation votes ignore the realities of the workplace. In order to be democratic, a vote must take place in a setting that is free from coercion and intimidation. The workplace is not such a place. Indeed, it cannot be such a place. The suggestion that mandatory certification votes are democratic reveals a wilful blindness to the overwhelming power and control exerted by employers in the workplace.

Not content to provide employers in Ontario with an enhanced opportunity to threaten, intimidate and coerce their employees, the Conservative Government then set about the task of ensuring that employees could not obtain any effective remedies when their employer broke the law. Beginning in 1996, the Harris Government slashed the budget of the ministries and tribunals charged with the responsibility of enforcing labour relations legislation in Ontario. The result has been that employees whose rights are violated must wait years before their cases are decided and their rights are enforced. Further, the Harris Government attacked the independence of Ontario's tribunals by terminating tribunal members who were committed to a balanced approach to labour relations and replacing them with those who were sympathetic to the position of employers.

Then, in 1998, the Harris Government again weakened protection for employees in the OLRA by removing the one remaining provision which deterred employers from threatening employees who chose to join unions: unfair labour practice certification. Since 1975, when an Ontario employer threatened the job security of employees during a union organizing campaign, the Ontario Labour Relations OLRB (OLRB) had held the power to certify the trade union if it found that the true wishes of employees regarding union representation could not be ascertained because of an employer's intimidating and threatening conduct. The rationale for such a provision is obvious: first, once an employer has threatened the livelihood of employees if they choose to join a union, employees will never be able to join the union without the lingering fear that they shall be harmed. Second, the prospect of certification acted as a deterrent that prevented employers from threatening workers in the first place.

In 1998 the Harris Government removed that deterrent from the OLRA. As a result, regardless of the threats and intimidation committed by employers against its employees who choose to join a union, the most significant direction that the OLRB can order is a second representation vote. There is now nothing in the OLRA, other than minor monetary damages and the minor inconvenience of having to submit to a second vote, to prevent an employer from continuing with a campaign of intimidation until the employees abandon their desire to join a union. And those second votes are little more than an inconvenience, as is shown by the fact that since the previous government left them as the only option for the OLRB, almost none have resulted in a win for a union.

What has been the effect of these changes? The number of Ontario employees who have been allowed to exercise their right to join trade unions has plummeted. Not only are fewer employees joining unions, but the success rate of applications for certifications has also dropped substantially.

Specifically, in 1994-1995, prior to the Progressive Conservative attack on the rights of workers, the Ontario Labour Relations Board received 1,077 new certification applications and granted 762 certificates covering 32,116 employees in Ontario.¹

In the year 2001-2002, the OLRB received 624 certification applications and granted 307 certificates for a total of 16,255 new members. That is a drop of 42% in applications received and a drop of 49% in new membership when compared with 1994-95. In 2002-2003, only 13,708 employees were able to join a union, a drop of 57% when compared to 1994-1995. ²

A further revealing indicator of the unfairness of current legislation is the dramatic drop in the success rate of certification applications. In 1994-1995, the success rate of the applications for certification filed with the OLRB was close to 71%. By 2001-2002, the success rate was less than 50% and in 2002-2003, the OLRB granted only 318 applications out of 658 filed, a success rate of 48%. ³

This dramatic drop in the number of new union members can only be explained by the Progressive Conservative attack on employees' rights. There is no reason to believe that these numbers reflect the fact that Ontario employees no longer want to join unions. Indeed, our experience and numerous studies suggest quite the opposite.

The results of our Union's work in public opinion polling indicate that support for joining a union has remained remarkably steady in recent years. Below is a chart showing poll results. The upper line shows the percentage of eligible employees who would join a trade union. The lower line marked "If no reprisals" shows the percentage of eligible workers who would join a union if they could be guaranteed that their employer could not punish them for doing so.

	Nov. '93	Mar. '98	Aug. '99	Nov. '99	July '00	June '01	Feb. '03	Aug. '03
Join a union			26%	24%	40%	27%	27%	25%
If no reprisals	33%	26%	32%		45%			31%

Converting recent (Aug. '03) poll data to the Ontario working population, on the basis of the Dec. '03 Statistics Canada labour force survey (including unemployed) (see ), these poll findings mean that a million Ontario workers want to join a union while more than 200,000 are scared out of joining a union because they are intimidated by their employer.

Labour force (including unemployed)	6,683,900
Union members (approx. 30%)	2,005,200
Not eligible (self-employed, management) (20%)	1,336,800
Interested in joining (25%)	835,500
Intimidated (interested in joining if no employer reprisals) (6% of eligible)	200,500
Total interested in having a union	1,036,000
Not interested in joining	2,305,900
Labour force (including unemployed)	6,683,900

As well, as employees have found it more and more difficult to organize, unions in Ontario are filing fewer and fewer applications and are only filing those applications that are likely to succeed. Notwithstanding the fact that unions are only filing stronger applications, the success rate is still dropping sharply.

Finally, a very recent study by Professor Sara Slinn of Queen's University concludes that the changes to Ontario's certification laws made it more difficult for employees to unionize. Moreover, she concludes that the legislative changes have had a disproportionate effect on weaker and vulnerable employees who have not traditionally been represented by unions. Professor Slinn concludes that:

"It is clear that the overall proportion of certification applications resulting in a certificate being issued is substantially lower in the Bill 7 period than in the Bill 40 period. It is also apparent that the characteristics of applicants seeking certification, and of those units granted union certification are significantly different under Bill 7 than they were under Bill 40... The apparent shift during the Bill 7 period toward larger bargaining units, and away from part-time units and the service sector, is a matter of concern to both policy-makers and unions. The majority of job growth in the private sector is in smaller workplaces and in the service sector. This shift therefore suggests that Bill 7 has had a disparately negative effect on relatively weaker employees, such that employees who may most benefit from unionization are less able to access union representation."⁴

2. The Reasons For The Drop In Certification Numbers

The dramatic changes in these numbers were entirely predictable. Employers in Ontario are now routinely breaking the law by firing, threatening and discriminating against employees who choose to join unions. The case studies attached as appendices to this submission are two of many examples in Ontario where employees are increasingly being forced to choose between their livelihoods - and in at least one notorious case, their lives- and the right to be represented by a union.

Employers have always engaged in aggressive and often reprehensible conduct to resist the wishes of their employees to unionize. However, in our experience, the current extent and ferocity of employer campaigns in Ontario to resist organizing efforts are at their zenith.

What is more troubling is that the laws that govern union campaigns in this province afford fewer protections for employees who exercise their right to join a trade union. As the former government successively removed these protections, employers came to understand that there is now no disincentive to engage in illegal conduct. Further, as the previous government increased its anti-union rhetoric, employers were further emboldened to take any and all measures necessary to dissuade their employees from exercising their rights under the Act.

PROPOSALS

PART I: RESTORING CARD BASED CERTIFICATION

The most important legislative amendment that must be made to restore the right of Ontario employees to join unions is to reinstate card based certification under the OLRA. Mandatory representation votes have no place in a truly fair and democratic system of measuring employee wishes with respect to unionization.

The present system of union representation votes allows so great a level of employer influence, coercion and control that employees are not able to exercise this choice in a free manner. Currently, employees have to make that choice twice - first by signing membership cards and then by voting for the union. Further, the voting process is deeply flawed. Votes take place on the employer's premises in a context that provides the employer with far greater access to employees than is provided to the union.

The only purpose served by making mandatory representation votes the only path to union certification is to give employers the opportunity to coerce employees into abandoning their support for the union.

Given the unique nature of power relations between employees and employers, the only fair and democratic means to ascertain employee wishes is through the signing of confidential membership cards by employees.

i. History And Rationale

The previous Conservative government demolished the fundamental structure of Ontario labour relations that for decades had recognized the need to prevent employers from interfering with the ability of working people to exercise the democratic right to join a union.

Modern collective bargaining legislation was introduced in Ontario in the mid-forties and enshrined in law in 1950 by the Conservatives. Successive Conservative, Liberal, and NDP governments supported the 'card majority' system of certification.

The card majority system of membership evidence provided an accurate picture of the wishes of the employees because it protected them to a great extent from intimidation, harassment and reprisal from anti-union employers. Where the number of employees signing cards was between 40% (35% for a prehearing vote) and 55%, a secret ballot vote was conducted. This secret ballot was necessitated because a clear majority of employees had not indicated their support for the union.

However, where a clear majority of employees (55%) had indicated that they wished to be represented by the union, the OLRB would certify the union as the bargaining agent for those employees. This process allowed employees to express their views confidentially and it provided greater reassurance to employees that the employer would not exercise its economic power over them in an attempt to coerce them into abandoning the union.

Prior to the previous government's actions, the underpinning of the traditions, practice and jurisprudence of Ontario labour law had been the recognition that employers will use their economic power to unfairly influence the free choice of employees regarding union membership. The system of membership cards, carefully scrutinized petitions and revocations and resultant certification effectively served to safeguard the democratic rights of employees in Ontario against employer interference.

The previous government subverted the democratic choice of employees by importing a United States-styled system of mandatory votes. Such a system brings with it, inherently and inescapably, an increased level of employer interference. The U.S. system's flaws have been well documented - a quick summary can be seen at www.aflcio.org/aboutunions/voiceatwork/efca.cfm. It is worth noting that all contenders for the Democratic Party's presidential nomination pledged to support the replacement of the US's voted based system with a Canadian-styled card majority system.

Those who insist upon mandatory certification votes justify their position on the basis of democratic values. However, representation votes are profoundly undemocratic. They are simply a license for employers to interfere in the democratic selection of a trade union.

All of the available evidence demonstrates that democratic card-check procedures are necessary to avoid the anti-democratic employer coercion inherently available through a vote process. Union votes are unlike any other kind of election because of the inherently coercive power that management holds over employees - the power to deprive employees of their livelihood and to control their pay, hours and working conditions.

In an election when voters choose their MPP, MP or municipal leaders, a vote determines who will represent citizens within the context of a democratic system and, indeed, which party will form the government. In a union representation vote, the issue is not which 'party' will direct the enterprise, but instead whether employees will have democratic rights at all. A successful union organizing campaign does not allow employees to choose a new workplace 'government'. A successful union campaign leaves the employer in the position of governance, with employees now simply securing legal guarantees of basic rights of 'voice and vote'.

The comparison between a union certification vote and a political election can be taken further in order to show the lack of democracy inherent in the union certification vote. Under the present vote-based certification process, management has easy and almost unlimited access to employees, while union supporters have almost none. Under the vote-based certification process, management has unrestricted access to a complete and accurate list of employees at all times (including home addresses and telephone numbers), while union supporters may have access only very late in the process to a list that is often intentionally inaccurate and that, in any case, carries only names and some versions of job titles. In a political election campaign, all parties have equal access to voters, limited only by their resources.

The vast majority of union certification votes take place on employer property. The employer maintains full control of the property during the vote. The union is granted access only to the room containing the ballot box and poll booth, while the employer remains free to campaign throughout the rest of the workplace. In contrast, elections for political office take place on neutral ground and campaign activities are banned from such areas.

In order to be a candidate for political office, an individual must obtain the signatures of a nominal number of electors in the riding or municipality. In order for a union to be placed on a ballot in a representation vote, the union must 'sign up' fully 40% of the 'electors'.

In summary, there is simply no basis to frame a union representation vote as parallel to a vote for political office. And, as such, there is no basis for stating that a vote-based system of union representation is democratic.

As well, as a tool of progressive public policy, card-check procedures promote healthy relationships between employers and employees by helping to avoid a pitched battle between management and employees. In certification votes, voting in favour of the union is characterized by the employer as tantamount to a vote "against" the employer. Therefore, card-check procedures promote healthier labour relations in the workplace by avoiding the workplace polarization that often results from anti-worker campaigns that naturally arise from a vote based system

Finally, card-check procedures benefit society as a whole. Both union and anti-union advocates agree that employees are better able to overcome the obstacles to forming a union under card-check procedures than under the vote-based certification process. Higher rates of unionization have been shown to benefit society as a whole in the form of reduced inequality, higher wages and purchasing power for union members and non-members alike, a reduced gender gap, greater access to pensions, lower poverty rates and higher voter participation.

ii. The Experience In Other Canadian Jurisdictions

For many decades, most Canadian jurisdictions measured employee support through card check systems. However, after decades of relentless employer pressure to conform to U.S. standards, a number of jurisdictions, including Ontario, have moved to mandatory representation votes. However, there is still a substantial diversity across the country and it is worth looking at the experience in other jurisdictions.

In the federal jurisdiction, card-check certification has been the norm for many decades. When the current Liberal Government in Ottawa sought to review and amend the Canada Labour Code, it appointed a commission to review possible amendments. That Commission, chaired by Andrew Sims Q.C., published its report, Seeking a Balance, in 1995. The report became the basis for the most recent round of amendments to the Canada Labour Code.

In Seeking a Balance, the Sims Commission considered whether to move away from the card-check system and require mandatory certification votes. Indeed, the Report noted that "several employer submissions urged the recommendation that all certification applications be subject to" a mandatory vote. However, the Sims Commission rejected the pleas of the employer community and unanimously recommended card check certification. In so doing, the report concluded as follows:

"We are not convinced that the statute should make representation votes mandatory. The card-based system has proven to be an effective way of gauging employee wishes and we are not persuaded that it is unsound or inherently unconvincing to employers. It requires a majority of all workers, not just those who vote. It reduces the opportunities for inappropriate employer interference with the employees' choice." ⁵

In Quebec, card-based certification has been the norm for many decades and there is no suggestion that the Government has any intention of moving toward mandatory votes. The same holds true in Saskatchewan.

In Manitoba, mandatory votes were introduced some years ago, but the Government reverted back to card-based certification as long as the union can demonstrate clear majority support through membership evidence.

In British Columbia, the procedure for testing employee wishes has oscillated back and forth from membership cards to votes depending on the predilections of the governing party. This has provided an opportunity to examine the relative merits of the two systems. Indeed, in a study by former B.C. Board Chair Stan Lanyon and Robert Eward, the data collected clearly showed a link between the abandonment of card-based certification and a rapid rise in the successful use of illegal tactics by employers against the organizing employee. As a result, the authors concluded:

"The use of representation votes as a condition of certification does not further democratic rights, but instead serves the interests of the employer who would wish to influence his employees' decision on the question of union representation".

In short, we submit that the experience in numerous Canadian jurisdictions supports the proposition that a card-based certification system is more democratic than mandatory representation votes. We believe that the Canada Labour Code, recently amended by the federal Liberal Government, should serve as a model for Ontario's Labour Relations Act.

iii. Conclusion

The current certification system defies common sense. It requires employees to choose a union not once, but twice. After employees have signed membership cards, they are subjected to the inherently coercive influence of their employer prior to a representation vote in a workplace to which the applicant union is denied access.

Most importantly, the mandatory vote system undermines the confidence that an employee should have in the certification process. We believe that a process in which employees provide voluntarily signed membership cards to the union and the union in turn presents that membership evidence in a confidential and protected way to an independent agency empowered to determine membership support is far more likely to be credible to employees than the present system.

If the Ontario government is truly concerned about nurturing and protecting employee free choice and permitting employees to choose to join a union of their choice, free from coercion and the fear of job loss and recrimination, the card-based certification system must be reinstated. We must be very clear on this point: a decision to maintain the current vote based system, even with some improvements, can only be seen as an explicit choice in favour of an inherently unfair and undemocratic system. In other words, if the government chooses not to make this basic and fundamental shift back to a card based system, it can only be seen as having made a choice in favour of employers over employees, in favour of the rights of capital over labour and in favour of the continued erosion of employee rights in Ontario.

PART II: RESTORING THE POWER AND EFFECTIVENESS OF THE ONTARIO LABOUR RELATIONS BOARD

1. Restore the Unfair Labour Practice Certification Power

We are pleased that your government has pledged to us (and to the Ontario Federation of Labour and Ontario Public Service Employees Union) that it plans to return the unfair labour practice certification power to the OLRB. We agree that this change is an essential component of any legislation that seeks to restore balance to the Ontario certification regime.

The OLRB should be able to order certification where employer unfair labour practices have made it impossible to be sure that the true wishes of the majority of employees will ever be known. Fault-based certification is a necessary sanction to ensure that employers do not get to remain union-free by being ruthless.

i. History And Rationale

In 1975 the Bill Davis Progressive Conservative government gave the OLRB the authority to certify a union which did not have majority support following serious violations of the Act by the employer. From that time until the so-called Wal-Mart amendments passed in 1998 under Mike Harris, Ontario governments of all political stripes recognized the necessity of an unfair labour practice certification power.

The reasoning behind the unfair labour practice certification provision is clear and compelling. First, fault-based certification is often the only remedy that can truly counteract illegal actions of employers during organizing campaigns. Where an employer's illegal actions have so perverted the choices employees make, the normal means of ascertaining employee wishes will be utterly unreliable.

In such situations, successive Ontario governments and governments in other North American jurisdictions have recognised that legislation must provide a solution.

Historically, the OLRB exercised this power only in circumstances where the employer had engaged in substantial interference in a union's campaign. Examples of the kinds of unfair labour practices that caused the OLRB to certify the union without a vote include:

• the employer discharging or laying off union supporters
• the employer suspending union supporters
• the employer contracting out work to avoid the union
• the employer cutting the benefits, wages or other employment terms and conditions of union supporters
• the employer threatening to close the business if employees chose union membership
• the employer threatening to cut wages, benefits or other benefits of employment if the union campaign was successful
• the employer engaging in surveillance and a "concerted campaign of terror" against union supporters

In such circumstances, the OLRB found that because of the employer's actions, the true wishes of employees could not be ascertained by a second vote. The OLRB has found that a threat to employees' job security or economic well being cannot be erased by the OLRB or the employer. Such a threat inevitably remains in the minds of employees during a second, or third or even a fourth vote.

The unfair labour practice certification power was used relatively rarely by the Board. Between 1990 and 1997, the power was only invoked 31 times. In order to understand this, we must turn to the second key purpose of this power: to deter employers from engaging in unfair labour practices. The unfair labour practice certification power acted as a necessary disincentive to employer misconduct.

Given the removal of this power, there is now no disincentive for an employer to commit the most threatening and intimidating unfair labour practices. There is nothing to deter an employer from terminating large numbers of employees or from telling employees that it will close the business if they vote for the union. At worst, the employer will merely face another vote, at which point any chance for a remotely fair process has been destroyed.

In fact, under present legislation, an employer can continue to repeatedly interfere with employee rights through successive votes. If a union applies for certification and the employer believes the employees want the union, the employer can intimidate employees into voting against union membership by terminating a number of prominent union supporters. If, after several months, the OLRB orders a second vote as well as the reinstatement of the employees, the employer can then threaten to close the workplace if employees vote in favour of the union. This can go on for three or more votes until the employees eventually are so afraid for their jobs, or so frustrated, they will never support a union, notwithstanding the fact that there may initially have been an overwhelming desire to unionize.

This was our experience at Baron Metal, where subsequent votes were ordered after the OLRB found that the employer had hired members of a criminal gang to threaten the lives of the union's key organizers. After three votes, the employees ultimately rejected the union despite the fact that they had initially shown a very strong desire for union representation. A full summary of this disturbing case is found here . It is worth noting that Baron was not a small employer that could be easily dismissed as a minor player in the provincial economy. Baron is and was owned by Royal Technologies, a prominent Ontario manufacturing empire with multiple plant locations, a significant international presence and a well-recognized Board of Directors.

There is an argument, advanced by the previous government and its supporters, that certifying a union following serious unfair labour practices is undemocratic because it foists a union on a group of employees who do not wish to be represented by a union. As such, some argue that the section "penalizes" employees.

This argument is profoundly wrong for several reasons.

First, the unfair labour practice certification power does not penalize employees because under the Act it is not a penalty to be unionized. If it penalizes anyone, it penalizes the wrongdoer, the employer, by not permitting the employer to secure the fruits of its illegal actions

Second, the employees' right to contract individually is not violated by unfair labour practice certification. In reality, it is the right of employees to uncoerced free democratic choice which has been violated by the employer. Therefore, successive legislatures concluded that the only proper course was to advance the process to the next stage - the negotiation of a contract. Until a contract is negotiated and ratified by a majority of employees, the union has little or no ability to represent or assist employees. Certification only establishes the union's right to bargain. The true test of support comes with the ratification/strike vote.

Lastly, in cases of unfair labour practice certification, it is always at least as plausible that in the absence of employer misconduct, a majority of employees would have voted for the union. But, in the many cases in which the employer contravenes the Act, we shall never know what the true outcome would have been.

ii. The Need To Eliminate Any Support Requirement

In addition, the government must consider the pre-application phase of the organizing campaign. Prior to 1998, Section 11 allowed the OLRB to order automatic certification in cases where violations of the Act would prevent the certification process from determining the true wishes of employees. However, in order for the OLRB to certify the union, the union had to demonstrate that it had sufficient support to maintain collective bargaining with the employer.

The existence of this requirement simply functioned as an incentive for employers to take steps quickly, such as terminating employees suspected of favouring a union, before the union could gain the necessary level of support to file an application at the OLRB.

Prior to 1995, the Act did not contain the requirement that a trade union must demonstrate a particular level of support in order to be entitled to unfair labour practice certification.

Therefore, the Act must be amended to provide the OLRB with remedial certification powers prior to the filing of an application for certification and without reference to a threshold level of support for the union. Without such changes, employers have an incentive to act early to chill, if not defeat, employees' desires to join the union of their choice.

iii. Other Jurisdictions in North America

Labour legislation in other Canadian jurisdictions provides for unfair labour practice certification. In British Columbia, Manitoba, New Brunswick and Nova Scotia, the legislation provides for unfair labour practice certification. In four other provinces (P.E.I., Quebec, Newfoundland and Saskatchewan) labour relations legislation provides for certification without a vote on the basis of membership evidence alone. At present, Alberta is the only jurisdiction that does not permit certification without a vote.

In the 1998 amendments to the Canada Labour Code introduced by the Federal Liberals in the wake of the Sims Report, a specific unfair labour practice certification power was incorporated into the Code.

As a result, at present, Ontario and Alberta are the only jurisdictions that require a vote in every case, regardless of an employer's conduct.

Even in the United States, the National Labour Relations Board has effectively certified unions without a vote by issuing bargaining orders where the employer has committed serious unfair labour practices which have fatally undermined the vote process.

iv. Conclusion

In short, the unfair labour practice certification power constitutes an important pillar in a legislative scheme purportedly designed to democratically test the wishes of employees. It deters the conduct of an employer that would destroy the democratic process. It provides a meaningful remedy, certification, when the actions of the employer make determining employee wishes impossible. In fact, a certification process that does not include remedial certification simply cannot make any claim on even a modest level of fairness.

The previous government's Bill 31 tilted the balance of power in favour of employers and gave them free reign to engage in egregious and unfair labour practices. The Baron Metal case, outlined here is the most serious but hardly the only example of such practices.

Under the OLRA as it stands today, the only real remedy the OLRB can award is a second vote - and this is no remedy at all when faced with a determined and unscrupulous employer. The employees of Ontario deserve better. They deserve to have meaningful protection of their fundamental rights. It is essential that the unfair labour practice certification power be returned to the OLRB. As stated above, we understand and support your government's pledge to return this power.

2. A Restored Interim Order Power

Prior to 1995, the OLRB had the power to issue quick, substantive interim orders within days. Such interim orders were typically issued to remedy employer misconduct during an organizing campaign (such as the termination of a union organizer). This power was incorporated into both the Labour Relations Act and the Statutory Powers and Procedure Act (the "SPPA").

Under Bill 7, the Tories removed the Board's authority to grant substantive interim relief under the Labour Relations Act. However, Bill 7 failed to remove the interim relief power under the SPPA. The Board, therefore, ruled that it continued to have the power to issue substantive interim orders including, potentially, the reinstatement of employees during an organizing campaign.

In 1998, Bill 31 removed the authority of the OLRB to issue substantive interim relief under the SPPA. As a result, the OLRB may only make interim orders on procedural matters. Hence, the OLRB may no longer issue substantive interim relief orders such as the reinstatement of employees or the freezing of terms and conditions of employment.

The elimination of the interim order power removes an important tool used by unions to gain access to expeditious remedies where union supporters were terminated. When combined with the successive budget cutbacks at the OLRB, employees who are terminated during a campaign now have no expectation that their case will be adjudicated with any haste. It takes months, rather than days, for the union to attain any remedy for such employees.

When combined with the elimination of the unfair certification power, the elimination of substantive interim relief makes employees who seek to exercise their right to join a union more vulnerable now than at any time in the last thirty years in Ontario. Not only does the legislation now provide an incentive for employers to intimidate and coerce employees, it removes a union's ability to address such violations in a timely manner.

Not surprisingly, the length of time for the disposition of unfair labour practice complaints has increased since the Progressive Conservative amendments to the Act. Whereas in 1994-95, 33% of such complaints were resolved within three weeks, only 14% were resolved within that time frame in 2001- 02.

Justice delayed is justice defeated and denied. The chill of delayed justice has a detrimental effect on the free choice of employees during organizing campaigns.

The essence of the substantive interim order was to maintain the status quo pending the hearing of the application. The maintenance of the status quo was necessary to avoid the labour relations harm that is caused to the union when a supporter is terminated. Specifically, the termination of a union supporter destroys a union organizing campaign. That harm can never be remedied, even if the employee is ultimately reinstated after a lengthy OLRB hearing. As a result, the OLRB could put the employee back to work, pending the outcome of the hearing on the merits of the employer's action, in order to insure that the campaign was not destroyed.

The Act must be amended to provide for interim orders to deal with unfair labour practices, including interim reinstatement of fired union activists. Employees deserve a return of the OLRB's expedited orders - so that employees who are simply exercising their rights and get fired for doing so can be returned to their jobs quickly. It is our strongly held view that employees' democratic choice is seriously undermined if the OLRB has no power to reinstate a discharged employee on an interim basis. Employees should be able to make a choice about whether to join a union without fear of being fired.

The OLRB should have the power to make interim orders. The courts have the power to issue injunctions and hold quick hearings. They use that power carefully and sparingly to ensure that justice is done and rights are preserved. There is no reason why the OLRB should not have similar powers.

3. Expedited Hearings in Certification Matters and Unfair Labour Practice Complaints

It is necessary but not sufficient for the interim order power to be re-instated to the Board. Prior to 1995, both the government and the OLRB recognized the need to hear certification cases and certain discharge cases on an expedited basis.

As a result, section 92(1) of the Act provided that certain matters, including all cases involving the termination of employees during a union campaign, would be heard within two weeks of the filing of the application.

At present, it takes many months, if not years, for the OLRB to hear these matters. As a result, the termination of an inside organizer can quickly and decisively terminate an organizing campaign. Moreover, the employee is without income during the time it takes for the OLRB to hear the matter. This makes it even less likely that the employee will return to the workplace as he or she necessarily moves on to other opportunities. As a result, under the present regime, there is an enormous incentive for employers to terminate key union supporters and remove them from the workplace.

Of equal importance is the hearing of the application for certification itself. Prior to 1995, the OLRB scheduled applications for certification to be heard quickly and, more importantly, the hearings were scheduled to continue on a day to day basis, for four days a week, until they were concluded. In short, they were scheduled much like trials in the civil courts.

However, since 1995, the scheduling of certification applications has changed. While they are still scheduled to commence quickly, the OLRB only schedules two days of hearing for each certification application. If the matter cannot be heard within those two scheduled dates, further hearing dates must be found. These further dates are usually scheduled many months later. Applications for certification can now take years to litigate.

It is simply not possible for a union to maintain employee support if the litigation of an application takes many months. During that period of time, employees are continually exposed to the employer's opposition to the union in the workplace. Union support erodes, no matter how strong the desire of the employees for union representation might have been.

Once representation is determined through a vote or otherwise, employees want to know the outcome. If in fact a majority of employees support the union, those employees want to bargain a first collective agreement. They want to participate in the workplace democracy that they have chosen. They want to see tangible evidence of the benefits of union representation. However, until the certification hearing is determined, the union cannot serve legal notice to bargain and cannot negotiate a collective agreement. Indeed, the union can do very little to demonstrate the benefits of union membership given that the OLRB has not certified the union as the bargaining agent. This alone may cause union support to diminish even in the absence of a continued employer campaign.

It is imperative, therefore, that certification hearings be heard as quickly as possible on a day to day basis. While it is not essential that the Act be amended to provide for expedited hearings (the OLRB could simply schedule matters to be heard quickly, as the present OLRB does with illegal strike applications filed by employers, for example), we submit that it is important that the Act be amended to provide that certification applications and terminations during organizing campaigns be concluded quickly before the OLRB. Such an amendment would ensure that these matters are heard expeditiously and would serve to protect Ontario employees who choose to join the union of their choice.

4. Renewed Independence and Budget for the Ontario Labour Relations Board

In order for many of the proposals in this submission to be properly implemented, we submit that the funding and independence of the Ontario Labour Relations Board must be restored.

Not content with a relentless legislative attack on the rights of working people, the Conservative Government also attacked those independent tribunals that are charged with the task of administering and applying Ontario's labour statutes. The Progressive Conservative government launched a systematic attack on the independence and neutrality of the Ontario Labour Relations Board. It terminated or failed to renew the appointments of seven OLRB Vice-Chairs. It appointed anti-union vice-chairs to take their place. These actions were found by the Ontario Court of Appeal to constitute an improper attack on the independence of the Board.

Moreover, the Government abolished the adjudicative bodies created to hear Employment Standards Act and Occupational Health and Safety appeals. Instead, these appeals were rolled into the duties of OLRB, at the same time as the OLRB's budget was slashed. The result is an OLRB that has been hobbled, resulting in enormous delays in the hearing of cases. This delay operates almost exclusively to the detriment of employees, of unions and their members.

We were pleased that during the election campaign, your party promised that appointments to the OLRB would be based on merit rather than partisan affiliation. It is essential that a non-partisan process be established for the appointment of neutral Vice-Chairs at the OLRB. We propose that the Chair of the OLRB be primarily responsible for Vice-Chair appointments with structured input from all parts of the labour relations community. There should be no Ministry or government involvement in the appointment of vice chairs. We are aware that the Minister has made worthy commitments in this area. We look forward to seeing those commitments formalized in the appropriate manner.

In order to ensure the neutrality of the OLRB Vice-Chairs and to ensure that talented and qualified individuals can be attracted to the Board, we also submit that the tenure of Vice-Chairs should be secured through longer appointments and their salary should be increased. At the moment, OLRB Vice-Chairs are dramatically underpaid when compared to other members of the labour relations community. As a result, it is necessary to increase their salary if the OLRB is to attract the most qualified individuals to hear Ontario's labour relations disputes.

More importantly, in order for the OLRB to provide quick hearing dates and dispose of matters in a time sensitive manner, it is necessary to ensure that the OLRB has sufficient resources to be able to schedule matters. At present, given the number of statutes administered by the Board, the OLRB does not have a sufficient budget or sufficient personnel to hear matters expeditiously. This must be remedied if employees are to get the rapid justice that is required to protect their rights.

Finally, in our view, the field services branch of the OLRB also needs further resources to be able to send more officers to conduct and regulate representation votes. We believe that many votes require two officers - one to conduct the vote and a further officer to insure that no inappropriate actions are being taken by any party during the polling times. However, at present the OLRB usually only sends one officer to conduct the vote. This level of supervision is very often inadequate. Employers often abuse their workplace authority, intimidating employees and coercing attendance at the polls. An additional officer at each vote would help to remedy this problem.

5. Lifting the All-Union Bar on Applications After an Unsuccessful Drive by a Particular Union

Prior to the 1998 amendments to the OLRA introduced by the Conservative Government, when employee wishes were tested in an application for certification and the application was dismissed because the union did not have majority support, that union was barred from filing another certification application for one year.

In 1998, the previous government's Bill 31 amended the OLRA to provide that all unions were barred from filing another application for one year. As a result, the employees in the bargaining unit are essentially disenfranchised for an entire year. These employees cannot join any union during that time.

Employees should have the democratic right to reject one union and choose another. It is undemocratic for the failure of one union drive to prevent employees from choosing another union. As a result, we propose that the bar be returned to its pre-1998 status - that only the applicant union should be barred from re-applying in the event of an unsuccessful application.

6. Increased Damages for Unfair Labour Practice Violations

We propose that specific penalties be imposed on employers where the OLRB concludes that an employee has been terminated during an organizing campaign in violation of the Act. At present, the normal OLRB remedy for such cases is to reinstate the employee with compensation for all wages and benefits lost as a result of the unlawful termination. However, the employer is not punished for violating the Act and the employee is likely to have suffered a protracted period without income, with the resultant damage to credit ratings and the ability to maintain other long-term financial arrangements such as mortgages, leases, car payments, etc.

We would propose that in cases where an employer is found to have unlawfully terminated an employee during an organizing campaign, the OLRB should be empowered to order a specific penalty amounting to triple the wages and benefits lost by the employee. This would serve as a clear disincentive to employers. Further, it would provide assurances to employees who seek to exercise their rights that the Act and the OLRB in fact protect them.

PART III: AMENDMENTS TO ENSURE EMPLOYEES CAN MAINTAIN THEIR UNION

1. Restore Just Cause Protection while Awaiting a First Collective Agreement

Prior to 1995, after a union was certified, employees in the bargaining unit had the right to just cause protection until a first collective agreement was negotiated. If an employee was terminated without just cause, the union could file an application to the OLRB requesting reinstatement for that employee.

Virtually every collective agreement contains a just cause provision. Access to that right should occur immediately upon certification. Employees should have the right to just cause protection without regard for how long it takes the parties to negotiate a collective agreement. The employer should have no incentive to delay and to rid itself of union activists.

A form of such protection exists under the Canada Labour Code for all workers. Further, such protection was discussed during the Liberal-NDP accord (1985-1987) in Ontario.

We submit that it is essential that employees be given just cause protection as soon as they have chosen to be represented by a union. Such a provision gives the union the opportunity to demonstrate the benefits of unionization to new members. It also contributes to labour relations stability during this crucial period - and labour relations stability is often expressed as an important public policy goal in Ontario.

2. Automatic Access to First Contract Arbitration

In order to overcome roadblocks to the establishment of a first collective agreement and stable labour relations, the Ontario Labour Relations OLRB (OLRB) should be given the power to settle the terms of such a collective agreement upon the application of either party. Such a provision was in the Act prior to 1995.

It has long been a strategy of anti-union employers in Ontario to attempt to defeat the wishes of their employees by resisting any reasonable first collective agreement. Employers know that the longer they can delay first contract negotiations, the more they can weaken the resolve of employees who have chosen to join the union.

During the period that the Act provided parties with automatic access to first contract arbitration in Ontario, the vast majority of first contracts were nevertheless settled through negotiation. However, for those employers that chose to use first contract negotiations as a means to defeat the union, automatic access to arbitration was an invaluable tool to ensure that employees who had chosen to unionize were able to obtain the benefits of a first collective agreement.

If the government is not prepared to include automatic access to first contract arbitration in the Act, there should at least be access to arbitration where the union is certified through unfair labour practice certification. Where the union is certified in this manner, it faces the particular challenge of being forced to negotiate in an atmosphere where the OLRB has found that the employer's actions have made it impossible to determine employee wishes. Employees are intimidated and they are often faced with a very anti-union employer. In these circumstances, first contract arbitration becomes essential.

3. Successor Rights in the Contract Service Sector

Our union represents a large number of employees in the contract service sector. In particular, we represent approximately 6,000 agency-based security guards across the province that provide security services on the properties and in the workplaces of third parties.

Contract employment is growing in Ontario. It was the recognition of this growing sector that provided for the previous and short-lived provision in the Act that protected bargaining rights for these employees in the event that the service contract changed hands.

Now, due to the previous government's erosion of the Act, in a situation where an employer provides contract security, cleaning or food services to a client, and the client decides to contract with a different service provider, the successorship provisions of the Act do not apply because there has been no "sale of a business" between the former contractor and successor contractor. As a result, under the present OLRA, if the employees at that site are unionized, their bargaining rights and their collective agreement are simply terminated.

Hence, over time, it is simply not possible for employees in the contract service sector to maintain their union and their collective agreements. Client employers will often choose non-union contractors. This means that employees who have chosen to be represented by a union are quickly stripped of their rights when the contract is re-tendered.

This problem was addressed by section 64.5 of the pre-1995 OLRA. This provision extended the successorship provisions of the Act to situations where the business was transferred by virtue of a change in the contract service provider. We submit that this provision in the Act should be reinstated.

If we are to respect the choice of employees to be represented by a union, then we cannot allow those employees to lose their union simply because a third party has decided to change contractors. Otherwise, employees in the growing contract service sector, a sector where non-union employees are typically paid at or near the minimum wage, are essentially disenfranchised from the right in the OLRA to join and be represented by the union of their choice.

CONCLUSION

The United Steelworkers thanks the Minister for the opportunity to provide this submission to you and your staff.

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