My colleague John Schmitt provided an excellent overview of my recent paper about organized labor in the United States and Canada, “Protecting Fundamental Labor Rights: Lessons from Canada for the United States.” In that post, John laid out the basic argument – that there are two key differences between the United States and Canada that have allowed the unionization rate in Canada to remain stable over the past half century while it has plummeted in the United States. The first of these differences is the process by which workers form unions in the two countries, which is what I want to take a closer look at in this blog post. In a second post in the days to come, I'll look at the other key difference – how bargaining impasses are handled after the initial formation of a union.

Both the U.S. and Canada have two different processes for forming unions – mandatory elections and card check. Under mandatory elections, unless an employer voluntarily recognizes a union, employees who want to form a union at their workplace must file a petition for an election with the labor board – a government agency that enforces the collective bargaining laws – showing support of at least 35 percent of the workforce. (It's 35 percent in the United States and 35-45 percent in Canada depending upon the province.) This is usually done with signed authorization cards, and employees or unions on their behalf will typically gather much more support than this before filing the petition, usually around 65 percent. The labor board, after verifying the cards against payroll records of the employer, will schedule and hold an election in which employees can vote on whether or not to form a union.

Under card check, the process is more streamlined. If employees are able to show majority support (ranging from 50-65 percent), the labor board will simply verify the signed authorization cards, and, if there is the required majority of the proposed bargaining unit, the board will certify the union. If there is less than the required level of support, the labor board will schedule and hold an election. In both mandatory elections and card check, once a union has been certified by the labor board, the employer is required to recognize the union and both the employer and the union are required to “bargain in good faith.”

For the most part, mandatory elections are the law of the land in the United States. While some states allow public-sector workers to organize via card check, all private-sector workers (the bulk of the workforce) must go through mandatory elections if they wish to organize a union at their workplace. Canada, however, is a more mixed picture. At one point, card check was the sole system for forming unions. But since the late 1970s, several provinces have switched from card check to mandatory elections. As a result, at present, about 75 percent of the Canadian workforce must participate in an election before they are able to organize.

A main difference inherent in these two procedures for forming unions is time. By the time that a card-check organizing campaign files a petition, the campaign is nearly finished (except for the official verification of majority support). When cards are being handed in by an organizing campaign under a mandatory-elections system, however, the campaign is only entering a second, decisive phase. And this phase can be long and drawn out.

For private-sector organizing campaigns in the U.S. during 2011, for example, it took a median of 38 days after the petition was filed for the election to occur. This delay between petition and election can often stretch out for months, especially when employers file formal objections or otherwise engage in stalling tactics. During this time between petition and election, employers – often assisted by outside “union avoidance” experts – run anti-union campaigns, attempting to convince employees that unionization is not in their best interest. They can employ a host of legal tactics, including captive audience meetings, one-on-one meetings with supervisors, or media campaigns. They often resort to illegal tactics as well, including firing outspoken union supporters. Penalties for this kind of behavior are small relative to the potential cost in higher wages and benefits of a successful union organizing campaign and any punishment that is meted is generally too late to reverse the damage caused to the organizing campaign.

Unlike the U.S., which has no time limits within which elections must occur, four of the six Canadian provinces with mandatory elections require them to occur within 10 days from the filing of a petition, while another requires that they happen “as soon as possible.” Under these terms, employers don't have the opportunity to run prolonged anti-union campaigns. They do still usually run them, but they aren't nearly as intense or effective as those in the United States. Canada's higher unionization rate reflects this.

Finally, there is one last point to be made regarding the procedure for forming unions and employer opposition. While time-restricted mandatory elections result in less aggressive and illegal employer conduct, the shorter election period does not eliminate such behavior. Canadian research, for example, has demonstrated that unionization campaigns are less likely to succeed under mandatory elections with time limits than under card check. Consistent with these findings, over the same period that Canadian provinces have switched from card check to mandatory elections, there has been a slight downward trend in the country's unionization rate.

For much more on all this, please check out the full paper. And stay tuned for my next post, on the differences surrounding first contract negotiations in each country.