Phil Wilson (00:02)
John Mortimer, welcome to the Left To Boom show.

John Mortimer (00:05)
Phil Wilson, great to be here. How are you?

Phil Wilson (00:07)
Yeah,

It’s great to be joined from the Great White North. Yeah, well.

John Mortimer (00:11)
That’s right. right. Yeah. Well, listen, you know, some of your friends down there call us the 51st state, but up here we call you guys the 11th province. So, you know, watch out, right?

Phil Wilson (00:23)
Yeah, it depends on the day, but there are definitely some days I wish we were the 11th province versus you guys being 51st state. well, we’re going to have fun today. We’re going to talk about Canadian labor law, which for a lot of our, most of our listeners, of course, are here in the United States. And I think it’s really valuable to understand the crazy way we do it is not the only way. There’s in some ways even crazier ways to do it. So we’ll learn.

John Mortimer (00:28)
Yeah, yeah.

Phil Wilson (00:52)
a little bit about that. But I think it’s really valuable for folks to understand what’s different about Canadian labor law, but also the ways that sort of positive employee relations and kind of creating great work environments really do translate across the border. So that’s what we’ll cover today. Why don’t we just start there at the beginning? So I know enough to be dangerous about Canadian labor law, but there are a number of different provinces that have different rules and

Why don’t you just explain for listeners, how does Canadian labor law work?

John Mortimer (01:24)
Sure, and the context I’ll put this in is I used to have responsibility in my corporate days for thousands of US employees. And I’ve got Canadian clients today that do business in the US and we’ve had to interact with the US National Labor Relations Board and the National Labor Relations Act. So I’ve got a ⁓ high level of familiarity of…

the entire employment and labor law scheme in both countries, having had responsibilities for a long time in both countries. So the first thing is, that we have a system where…

the equivalent of the American states, what we call provinces, and we have some territories, when I guess arguably you’ve got Guam and Puerto Rico, which don’t have full statehood, okay? And our territories don’t have full provincehood to equate that, okay? But what’s different is that each of them has their own employment law, labor law, their own equivalent of OSHA, their own equivalent of the EEOC, for example.

Phil Wilson (02:10)
Mm-hmm. Yeah.

John Mortimer (02:29)
Now, the next place to jump to is, know, pointy-head people who study labor law will say that Canada is a Wagner Act country. Our labor statutes, all of them, all 14 of them, are built off of the U.S. Wagner Act. We have labor boards that function very much like your National Labor Relations Board does. It’s just that we have more than you do.

Phil Wilson (02:55)
Mm-hmm. Yeah.

John Mortimer (02:57)
So

think of it as 10 provinces. There’s a federal jurisdiction, the Canada Labour Code, which is kind of equivalent for legal experts in the US to the Interstate Commerce Clause. So airlines, trains, trucks that cross either the US-Canada border or cross provincial borders within our country, they are federally regulated.

Phil Wilson (03:11)
Mm-hmm.

John Mortimer (03:23)
And then there are some other industry sectors going back to the founding of Canada in 1867, telecommunications and banking based on the way the constitution was written in 1867 as a statute of Britain. I mean, we didn’t actually get our own constitution until 1982. Before that, we were a creature.

Phil Wilson (03:43)
Really, I didn’t realize that.

John Mortimer (03:46)
of the British House of Commons and the British House of Lords and the Monarch of the Day in 1867. So it’s been interpreted to put certain industries under federal control rather than provincial control.

Phil Wilson (03:54)
Wow.

And we have

something similar to that in the US. The difference is, think, the amount of jurisdiction that we do federally is a lot wider than the state-by-state stuff. So for example, and we’re dealing with this right now, where New York and California have passed sort of, they all have like many.

NLRAs basically, mini Wagner Acts, just like you said, except for their jurisdiction tends to be really narrow, like agriculture or public sector employees within that state. that’s normally who they deal with. It sounds like the difference is in Canada, it’s pretty narrow. Sounds almost like the federal jurisdiction covers like our Railway Labor Act covers some of those industries.

But then most private businesses, you’re covered by the law of your particular province or territory. Does that sound right? Yeah.

John Mortimer (05:03)
Correct, correct.

But I think there’s another really important difference and you can update me on the labor scene, but in employment law in the US, employers are now facing states and cities and towns who are passing laws. So the era when a company like Walmart operating in every US state was regulated under the Fair Labor Standards Act, for example, for employment stuff, that’s no longer true.

Phil Wilson (05:31)
Yeah.

John Mortimer (05:31)
You’ve got local governments passing ordinances, laws, all sorts of, and I remember this in my days of having employees in the US. And of course, I couldn’t just look to that one federal statute. I had to look to the statutes of Oregon or Utah, for example.

Phil Wilson (05:47)
Yeah. I

mean, yeah, it’s, it’s, it’s really, it’s interesting. And in a way it’s the way that it’s done in Canada, like one of the interesting things. like the provinces, even though they’re kind of like a state, like they’re much, they’re much bigger, right. And they, they, in general, and they tend to cover, you know, sort of like a, because it’s, because it’s bigger, it covers sort of like a bigger swath of organizations. Whereas our States tend to mostly.

you know, I think geographically or smaller. They’re also, you know, but like you just said, like they’re trading all over, all over the place.

John Mortimer (06:23)
They’re

still passing regulations that you need to pay attention to whether you’re in Pennsylvania or Florida, right? Okay, so let’s go to labor, Phil. In labor, has any state or any province done anything that impacts an employer that’s different from one state to another? Like captive audience meetings as.

Phil Wilson (06:27)
Yeah. Mm-hmm. Right. and, yeah. Mm-hmm. Yeah.

Mm-hmm.

Yeah. Well, it’s a, it’s a, like, it’s a big legal question down here right now because the, you know, there, yes. So multiple States have, for example, regulated captive audience. just mentioned the New York and California laws that are, you know, based on when the NLRB was without a quorum, thank goodness we’re, we’re past that at least for a while. But, ⁓ but they pass statutes and said, basically, look at the NLRB can’t

get its act together, like we are going to take over regulation in that area. But those laws in general are preempted. there’s currently litigation about both the California and New York statute. There’s also litigation about these captive audience statutes, basically arguing, look, the state is not allowed to regulate in these areas because the federal law covers that. But it’s a legal argument and

states and even municipalities are ⁓ doing everything that they can to sort of whittle away at what actually is federally controlled versus what they can control.

John Mortimer (07:50)
So the difference then in Canada across all aspects of employment, labour, health and safety, know, what you call equal employment opportunity, what we call human rights in terms of the technical name, a business in the province of British Columbia does not face regular, if it’s regulated by the province of British Columbia, the federal government has nothing to say. The city of Vancouver, the city of Vancouver has nothing to say.

Phil Wilson (07:59)
Mm-hmm.

Yeah. And what about what about cities or states? Yeah, okay.

Yeah. Well, that makes a hell of a lot more sense than ⁓

John Mortimer (08:23)
So it’s

really my experience having US employees. And as I’ve watched this progress over the years, is it’s a lot more complicated to be in an American employer and have 50 states untold number of local governments regulating you and the federal government. So that’s one thing. And the next thing that’s really different is our labor boards.

Phil Wilson (08:40)
Yeah. Yeah.

John Mortimer (08:48)
are structured in law differently than the National Labor Relations Board. And I’ll put it to you this way. It’s a pure advocacy system like an American court. The union makes its case, the employer makes its case, the employees who might be bringing in action make their case. And the board has an administrative process to deal with submissions, hearings if necessary, ⁓ and making decisions.

Phil Wilson (08:57)
Mmm.

John Mortimer (09:17)
You know, in the US, the idea that the union files, what is it, a complaint or a charge, and then the labor board evaluates it they turn it into something else. You know, I had a client, like inside of two weeks, district, maybe region 20, San Francisco, just going off of years ago, had my client’s HR manager and retail store manager being deposed in their office under oath.

Phil Wilson (09:24)
Yeah.

Mm-hmm.

John Mortimer (09:46)
and we were producing all these documents to the board who were proceeding against us. Okay, that cannot happen in Canada, does not happen in Canada. If the union wants to make a case, they make their case and they go before the tribunal, the Labour Board. Either it’s done in submissions in writing or it’s done orally. So it strikes me that, you know,

Phil Wilson (09:56)
Mm-hmm.

John Mortimer (10:10)
Mr. Musk and Tesla and a few other corporations who’ve challenged the constitutionality of your structure. Your system appears to be ⁓ the labor board is investigator, police, prosecutor, adjudicator, administrator of the entire system, right? No, doesn’t happen here, cannot happen. And it moves much more slowly. That part of our system moves much more slowly. If the union wants documents,

Phil Wilson (10:29)
Yeah. Yeah.

John Mortimer (10:40)
they’ve got to put in a subpoena, a request for them. And they first got to prove the relevance of them. And they might have to deal with challenges as to whether or not they’re attorney client privileged. The labor board will make a decision and then they’ll issue the subpoena. But the labor board doesn’t just, you know, listen to a union or listen to an employer and haul off and start grabbing documents and interviewing people.

Phil Wilson (10:43)
Mm-hmm.

Mm-hmm.

Yeah. I mean, that’s much more like our, you know, just like our normal federal court system or even state court systems don’t allow, you know, there’s not like the, we’ll, we’re going to subpoena all the information before anyone even decides whether it’s relevant or, you know, or abusive or whatever. And it’s interesting, you know, the, the new general counsel just came out with a memo and, and it’s been funny. There’s been sort of.

John Mortimer (11:08)
Right. Right.

you

Phil Wilson (11:31)
like this negative reaction to it, but it makes so much more sense. And it’s much more like what you just described where it’s like, hey, you when you file a charge, you don’t just get to like drop the document off at the government. And then we just take everything that you said as true and then we’ll start a whole investigation of it. Yeah. It’s like, instead you have to prove that the things that you said in your document, have to like, what is your evidence that this stuff occurred?

John Mortimer (11:47)
and start interviewing people. Yeah. ⁓

Phil Wilson (11:58)
before we’re going to start a formal investigation. And the reality is because no one’s ever really been required to do that right up front, then, hey, what’s the difference if I just throw a document up there and maybe it’s right, maybe it’s not, I don’t know, I’m just going to throw what I want out there and just see where it goes. Well, those cases now are going to get dismissed because it’s like, if you don’t show up within two weeks with, you your

proof of the complaint that you filed. They’re just going to say, yeah, we’re not investigating that and that makes so much more sense than you know, what happens now, which is it sits on a file and of course, you know now it’s even it’s as bad as it’s ever been but it’s like you know, it sits in a file for maybe a year or two before anyone can get around to investigating it and then they find out. ⁓ like there’s nothing here.

John Mortimer (12:29)
Hmm.

Yeah, well, it strikes me that the entire system of the National Labor Relations Act and board is fundamentally inherently biased. Because the body is taking a position on things in every aspect of the way it does it. Our boards don’t. Next.

Phil Wilson (13:07)
Yeah,

tell me a little bit about like, what, how is that different? How, how is it, you know, obviously each side is making their case for their point of view, but how, like, how is that different in Canada?

John Mortimer (13:18)
So let’s start with the structure of the boards themselves. So in the US where it’s a five member board and three members are pretty much always tied politically to the party that has the White House, who’s the president. And then whoever is not gets two seats, okay? Doesn’t work that way in Canada. What they do in the legal community, the management lawyers and the union lawyers is there’s consultations with the board.

Phil Wilson (13:27)
Mm-hmm.

John Mortimer (13:47)
consultations with the government of the day when there’s a vacancy or a renewal, and then they’re going to split the membership typically between people with a management background or a union background. And they’re also going to try to potentially diversify them in terms of the types of sectors of the economy, right? Now, some labor boards are very small in Canada. They have like three…

Phil Wilson (14:00)
Yeah.

John Mortimer (14:12)
adjudicators, a chair and maybe two vice chairs, we would call them. But a bigger board, like in Ontario, it probably has north of 20 decision makers, what they call vice chairs, and then every board has a chair. And typically, again, over the years, you know, if the chair is a union side person for one term, there’s a high probability that next term it’s going to be a management side person that becomes the chair and then a union side person. So it’s not Republican and Democrat.

Phil Wilson (14:16)
Mm-hmm.

John Mortimer (14:40)
You know, it’s not liberal and conservative or, you know, the NDP party where it exists in the country. It’s practitioners from each side of what are the most powerful parties. There’s no notion of representing employees. You know, our boards all maintain this fiction that the unions speak for the workers. And that’s just not true in terms of the way unions conduct themselves.

Phil Wilson (14:40)
Mm-hmm.

Mm-hmm.

John Mortimer (15:07)
and the way the system actually works, but those are the power parties. So they have rules, they have procedures, they have forms. And whatever you need to do as a person who wants to participate in the process, you fill that out, you make your filing, and it has to be served either by the board or by you on the other relevant parties, okay? And then they know the case they have to meet, and they file what they want in response.

Phil Wilson (15:28)
Mm-hmm. Yeah. So, so.

John Mortimer (15:36)
And then there’s probably gonna be a case management conference. Who’s gonna go first? Who’s gonna go second? What are the dates? What do you have to do? And so on. If we’re talking about a legal dispute, if it’s a straight up application, like by employees to remove a union or a union to get a union or one union trying to displace, know, replace another union, all that kind of thing, they’re gonna have to put that stuff before the board and the board’s gonna run the votes if there’s going to be a vote, okay?

Phil Wilson (15:45)
Mm-hmm.

Yeah, so couple of questions. So the first one is, and I know this sort of varies by province or territory, but the process up in Canada tends to it seems to me, like a lot faster in terms of like getting in a union. when you talk about like the application process, that’s a lot faster than what we do down here. Talk a little bit about that and then.

That’s different, right? Depending on where you are located. How does that work?

John Mortimer (16:36)
Yeah, so once again, depending on the jurisdiction, federal or one of the 10 provinces or one of the three territories, you know, the fastest that you can go from union application to a board run vote is the province of Saskatchewan. It could happen in three days. Next up, you get British Columbia and Ontario, for example, at five days. British Columbia used to be 10.

Phil Wilson (16:53)
Hmm.

John Mortimer (17:02)
a pro-union leader government, the NDP moved it from 10 days down to five days. Other provinces are weeks or months in their process before they’re deciding is there a vote or not a vote and then ordering a vote. ⁓ The five-day vote, the first ever…

Phil Wilson (17:06)
Mm-hmm.

Mm-hmm.

John Mortimer (17:20)
quick vote in Canada was put in in Ontario back in 1995. And then that has spread a little bit across the country, but not every province does have that. So before, you know, there was lots of things that parties would do, whether it’s a union trying to avoid a raid or an employer dealing with a union application. You know, there were things that caused delay where, you know, the vote might be six months or a year out. Okay.

Phil Wilson (17:28)
And yeah.

John Mortimer (17:46)
So we could have it much longer than it was in the US when you were up in the mid 60 days, although I think you’ve come down into the twenties and maybe some quicker ones. And yes, there’s been US experts who’ve come to Canada and studied and done meetings here and then brought this, know, quickie election model as the US has called it to the US as an idea.

Phil Wilson (17:51)
Mm-hmm. Yeah.

Mm-hmm.

Yeah. So, ⁓

John Mortimer (18:11)
Now, and

of course we have card check in some jurisdictions where if the union reaches a certain threshold, 50 % plus one federally, 50 % plus one in Quebec. And then there’s other provinces that are up at 55 or 65%. You don’t get card check unless your card support is up at a higher level.

Phil Wilson (18:30)
Mm-hmm, interesting. Not just simple majority of however many they think are in the group.

John Mortimer (18:39)
No, so in some provinces it’s a guaranteed vote. The employees get a vote unless there’s unfair labor practices and litigation and you get a CEMEX bargaining order like in the US or a GISSEL bargaining order as it used to be in the US. We tend to call them remedial unionization or remedial certifications.

Phil Wilson (18:42)
Mmm.

Mm, yeah, okay.

John Mortimer (19:00)
Some people

call them automatic, but some people by automatic they mean card check. They don’t mean unionization because of unfair labor practices.

Phil Wilson (19:08)
Yeah.

Right. And of course, well, yeah. And as we sit here today, Gissel is still the law. They just added this sort of CEMEX in between move that may or may not be lawful. We’ll know here, hopefully, have at least a couple of circuit court decisions that clarify that some. But yeah, stay tuned on that. ⁓ I think there’s a, I think people think of like Canada is way more unionized than

John Mortimer (19:22)
Yes.

Phil Wilson (19:37)
the United States. I’m curious, are your thoughts about like how unionized is Canada and maybe what are you know, from your experience, what are some of the differences between kind of the way unions and companies operate with each other in Canada versus here in the United States?

John Mortimer (19:54)
Yeah, so if we looked across Canada, we would have had private sector union density close to 30 % a few decades ago. Today it sits around 15 and falling, and you’re at 6 % and falling, okay? So we’re not in the private sector, we’re not actually that far apart in the grand scheme of things today. And I think at one time,

Phil Wilson (20:02)
Mm-hmm.

Yeah, right.

John Mortimer (20:16)
⁓ Canadian density was lower than US density, but US density has really dropped off. I think one of most fundamental reasons is the Supreme Court in the US has said you can’t force people to become members of a union as a condition of employment.

Phil Wilson (20:23)
I’m hanging up.

Mm-hmm.

John Mortimer (20:37)
you particularly in right to work states, of course you can’t require union dues for non-bargaining purposes as a condition of employment. You can’t say you got to pay for us to give money to ⁓ Vice President Harris’s campaign or you’re fired, if I can sort of exaggerate the, but that’s the dynamic. You got to pay for whatever the union wants to spend money on or you lose your job. Okay. I don’t think you can do that in United States, but in a…

In a right to work state, you’ve at least got to pay your bargaining services fee. You’ve got to pay the minimum dues for the stuff that the union can prove is about bargaining. In a right to work state, you can’t even charge union dues. If an employee doesn’t want to pay union dues, they don’t have to at all. Right?

Phil Wilson (21:12)
in a non right to work state, but yes, right. Yeah, you can, yeah.

Right. Or fees or anything. They don’t have to pay any money

no matter what if they don’t want to. Yeah.

John Mortimer (21:26)
Yeah.

Okay. So in Canada, ⁓ basically everybody who’s unionized pays full dues. There is no notion of two levels of union dues anywhere in Canada that I know of like there is in the U.S. And so I think that that’s given them more money per capita to work with. I think that they are able ⁓ to mislead employees.

Phil Wilson (21:39)
interesting.

Mm-hmm.

John Mortimer (21:50)
into the idea that you have to be a member, you have to pay full dues or you’re terminated, right? And we have had labor boards where employees have lost their membership and the union has said to the employer, fire Phil Wilson. And the company’s fired Phil Wilson and Phil Wilson went and contested it and Phil lost.

Phil Wilson (22:04)
Mm-hmm.

John Mortimer (22:10)
Now we have some labor statutes in some jurisdictions that say as long as Phil pays his dues, even if he was a bad boy and he wrote a a letter to the editor about the union that was critical of the union and so we kicked Phil out because you do not write letters to the editor here at the Teamsters and criticize, you know, um, uh,

What’s your Sean O’Brien? You do not criticize Mr. O’Brien, okay? Here in a province where you’re protected, as long as you pay your dues and they kick you out for writing a critical letter about the union president, you get to keep your job. But in some provinces you don’t. Now,

Phil Wilson (22:43)
Mm-hmm.

John Mortimer (22:49)
the unions don’t push that nuclear button of terminating people very often, but they sure use it. I mean, I’ve been running the Canadian Labour Watch Association for over 25 years, aside from doing my human resources consulting work. And I’ve talked to an awful lot of employees that are threatened, misled and intimidated by unions into believing there’s risks in doing anything like that. ⁓

is decertification of the union harder. ⁓

Phil Wilson (23:20)
That’s what I was going

to ask. Talk a little bit. I didn’t really introduce labor watch. Talk a little bit about what labor watch does and yeah, what does that getting rid of a union process look like up in Canada?

John Mortimer (23:33)
Yeah, so if we go back into the 90s when, you know, there were some interesting circumstances where ⁓ the management side, labor lawyers, I think frankly had complete proof that labor board officials had lied to employees, had misled employees, had steered them in the wrong way on their rights at law. Okay.

And I even, you know, after Labour Watch was created, I took a woman who’d run a decertification at a high profile retailer to meet with the Minister of Labour and the story that she told about this Labour Board official was outrageous. And even though it was ⁓ you know, conservative government in that province, they did nothing about it. OK, so so Labour Watch was born out of lawyers and industry association saying Labour Boards

are not serving the workers, who are the least powerful, least knowledgeable, have no money. So how do they push back and how do they do anything? So we created an organization that runs a website that has the government forms for every single labor statute in the country from the relevant labor board. How do I cancel my union card?

How do I remove the union? What’s the process? What do I have to do? What are the forms? What are the mistakes? No fees, no passwords, seven day a week, 24 hour a day, employee hotline, no charge that people can call and get answers. They can send emails and get answers. So there’s like 80 labor board decisions with unions whining and complaining about employees being informed about statute law. And labor boards have been unwilling to strip

the rights of employers who refer employees and employees who use the website. Because I don’t think they want to go to court and say, employees don’t have a right to know the law from a website. Like we’ve got government forms, how can that be an unfair labor practice, right? No one’s been intimidated, threatened, coerced or promised anything. They’ve been given legal information. They’ve got a government form. But none of the labor boards, they don’t have explanations.

Phil Wilson (25:23)
Mm-hmm.

Right.

John Mortimer (25:47)
proper anyway, but most of have nothing that tells an employee of how to do this. What are the pitfalls? What are the mistakes you could make as a worker? And then they’re going up against a union on a decertification who takes their union dues to fight them.

Phil Wilson (26:01)
Mm hmm. Yeah. We have the same problem down here of, you know, the information about removing a union is like very hard to come by. If you call the, I mean, it depends on who you get a hold of, but like if you call these regional offices, you will, you’ll get everything from, you know, you can’t do it a lot. And a lot of times when actually lawfully they can, to, just like, don’t do it or I’ll call you back and don’t or whatever. So.

John Mortimer (26:02)
Now

Yes.

Phil Wilson (26:30)
having a place where you can go where someone is going to, and it’s complicated, right? So someone’s going to explain it to you and have the right forms and be able to kind of walk you through the process. That is, you know, it’s an incredible resource. And then on top of that, the idea that like you don’t want to have resources like that available and instead of what? Like having employers provide that information, like that’s not what,

unions want and there’s a reason why there’s rules that say like, you know, an employer can’t encourage or help its employees get rid of a union. Like that’s on balance, probably a good idea, but if that’s correct, that the employer can’t help, then there needs to be a place that will help because the union’s not going to help do that. And that’s where something like Labor Watch, for sure. ⁓

John Mortimer (27:22)
Well, they’re going to work against them. They’re going to lie to them, trick them, use their money against

them, know, hire a lawyer, yeah, visit their homes, threaten them. And what are they going to do? Sorry, file a complaint, go down to the labor board unpaid, take days off work, face accusations about why you’ve got days off work, go in front. mean, for an employee to go in front of a labor board in a hearing, you know,

Phil Wilson (27:29)
Intimidate them. Yeah.

John Mortimer (27:49)
without a lawyer with all the technicalities, this is a joke. I’m sorry, any lawyer, any sitting chair of a board in this country, any vice chair who can say that this is okay and this is fair, any premier, any prime minister, you have no credibility with me. I don’t even know how you look yourself in the mirror and say the system is right and fair. And let me go here. If I have an employment complaint about my employers not paying me overtime,

Phil Wilson (27:52)
Mm hmm. Yeah, right.

John Mortimer (28:15)
I can involve the government paid for by my taxes to go after my employer and make them produce documents, Initiate a process. An employee under every single employment statute, pretty much across the country has access to government experts, funded resources and you know, to do things with the employer. Can’t do that with the union.

Phil Wilson (28:21)
Mm-hmm.

Mm-hmm.

Yeah, it’s.

John Mortimer (28:44)
So

it’s completely biased that only one statute leaves the taxpaying employee with nothing but fighting the union that uses their money to go after them.

I don’t know how anyone gets out of bed in that system, looks themself in the mirror and credibly says, that’s okay, rather than should all be actively advocating against it because your kid could be screwed because of the system, your mother, your father, your whatever, right? And I don’t think it’s good for the culture of the workplace. I don’t think it’s good for the country in terms of how the economy works. But because of it, I think…

Phil Wilson (29:09)
Mm-hmm.

John Mortimer (29:22)
unions are less good than they need to be if I can use that ugly English expression. I think it’s a it’s a it works against excellence because they can get away with things that no employer can get away with. My favorite duty affair do you have duty affair representation? Okay so we have it under almost all but not all statutes in this country. Okay so my favorite case I can’t remember the name of it but

Phil Wilson (29:35)
Right.

Yeah. Yeah.

John Mortimer (29:48)
The union gave advice to the employee that was dead wrong in law, like dead wrong, and the employee acted upon it. And then they lost whatever they lost, and so they filed a complaint against the union for it. And the board said, union representatives are not lawyers. We can’t expect them to know the law. They didn’t fail in their duty. Try going down to…

Phil Wilson (29:52)
Mm-hmm.

Mm-hmm.

John Mortimer (30:12)
Fair Labor standards or the Canadian Equivalent Employment Standards and say, I’m an employer. I didn’t pay overtime. I’m not a lawyer. I didn’t know I had to pay overtime. And you get all.

Phil Wilson (30:19)
huh.

Right. Right.

John Mortimer (30:22)
Sorry, what graduate of law school who practiced law, I’m sorry to all my lawyer friends, became a vice chair at the board, thought that you can say that the union rep doesn’t have to know the law so he gets off. And if I can go to a high level on it, Phil, you know, a Supreme Court justice in our country back in 1946 was appointed to…

deal with a 19,000 employees strike at the Ford Motor Company in Windsor, Ontario. It was a violent strike. It was winter time. They were stealing cars and cracking them up to block streets. They were undoing fire hydrants and flooding streets and freezing weather and then like streets were just being frozen ice rinks. Okay. So the federal liberal government in what was an Ontario provincial matter got the Supreme Court justice to deal with the issue and

Phil Wilson (31:05)
Hmm.

John Mortimer (31:15)
he decided on something that became known as the RAND formula in a single arbitration award. He said, the union doesn’t get full dues for non-bargaining activities, if I can just summarize what the decision means, but they do get guaranteed fees from every unionized worker to pay for the collective agreement. And he called it, quote, the administration of the law of their employment.

So to the extent that the union executes the Labor Relations Act and their employment relationship.

they have to pay for that. But they don’t have to pay for politics and everything else is the way that thing worked. And that’s been completely ignored. So if I can go back to my example, we started at the Supreme Court level on an arbitration award in 1946 that spread across the country saying you pay to be represented by the union on your legal rights that you’ve lost to the union. And then we have labor boards not holding unions accountable for getting the union, for forgetting the law wrong.

Phil Wilson (31:51)
Hmm. Hmm.

⁓ Well, let’s segue to employee relations. I know we both care a lot about creating positive work environments. Talk to me a little bit about, to me, whether you’re in the US or Canada, and you want to avoid dealing with having a…

bargaining relationship and having to deal with the back and forth of that. The answer is to provide a better alternative than collective bargaining and exclusive representation. And that better alternative is a great workplace. So talk to me a little bit in your experience, kind of how that works and is that seen as an effective alternative for folks?

John Mortimer (32:59)
Well, most employees, according to the research that I’ve seen by others that we’ve commissioned over the decades at Labour Watch, says that employees would really rather not be unionized. And what’s most interesting is that across the country in the research, Canadian workers who used to be unionized but were working non-union at the time they answered the survey questions, did not want to be unionized again.

Phil Wilson (33:26)
Mmm. Yeah.

John Mortimer (33:28)
union research that I’ve seen that talks about, you know, tries to research why will people not sign a union card to enable an application? Why will people vote no rather than yes if there’s a Labour board vote in a vote jurisdiction in Canada? And the one of the the highest ⁓ objection

that survey respondents had to the Canadian Labor Congress in that research was the union focus on seniority over merit.

Phil Wilson (33:59)
Yeah.

John Mortimer (34:00)
⁓

The union doesn’t listen to me was another one, right? I don’t really have any control over the union. ⁓ What I see unions suffering from a reputation point of view is that they protect people that fellow employees think should be terminated, but they see unions fighting for them. So what’s clear from my consulting work, what’s clear in particular from labor watch is that ⁓

Phil Wilson (34:08)
Mm-hmm.

John Mortimer (34:30)
If you’re listening to employees, and in particular if you’re listening to them about operational issues, the equipment’s not repaired, the software doesn’t work properly, work isn’t scheduled, I don’t have the supplies needed, the stuff’s missing to assemble this thing, right? There’s no chocks for the truck and the drivers, those owner operators who drive up here get upset at us because it’s not safe at our docks. Why can’t we have safe docks for these drivers? Because they get pissed off at me or they get pissed off at the receiver, okay? So I see positive employee relations

in the work I’ve done is most fundamentally is work actually working? Are you a top-notch employer operationally? Or if you were a customer, as you are of so many things in life as the owner or the CEO or the warehouse director, and you had that experience, you’d probably be unhappy about it. Sorry, so why do you run a building? Why do you run a restaurant that runs this way, right?

And so, you know, employees want work to work. Unions, of course, don’t get to bargain those things.

at least not in this country, they’ll make promises to employees, but they don’t get to bargain that stuff. But they get in on the backs, in my opinion, and in my experience, having interacted with tens of thousands of employees over the decades of our work, it’s that stuff that animates people to the point of frustration to consider signing a card and consider voting yes. And overcoming the they protect bad people, right? Or they’ll focus on seniority. And I believe in merit. I want my workplace to be good. And I want to work with good employees.

Phil Wilson (35:39)
Mm.

John Mortimer (36:08)
right?

Phil Wilson (36:10)
Yeah, yeah. I mean, you know, it’s the same down here. And, you know, in an interesting way, just to sort of flip it, right? You talked about like that Rand decision and down here, we’ve got the right to work, you know, states, but unions, when they do say it out loud, they like to take it back. But the bottom line is in a right to work state where you have to actually earn the dues, unions do a way better job. They work harder.

John Mortimer (36:37)
Really? I’ve not heard

that before. Wow.

Phil Wilson (36:39)
They, it’s, ⁓

yeah, there are a number, like we have quotes. They weren’t necessarily thinking about it the same way, but they, yeah, they’re like, we have to work harder in right to work states, and that’s true. Like, there’s a market incentive. If you want to earn the dues, you gotta provide the service, which that goes away in non right to work states where like you get the dues whether you do a good job or not.

John Mortimer (36:49)
Yes.

Phil Wilson (37:07)
And I think the flip side of that is also true for employers, right? If you don’t wanna have a union, ⁓ then you have to earn the privilege of working directly with your team. And the way you earn that privilege is all the stuff that you just described, right? Have a.

great workplace where the tools work, where if I’ve got a concern or an issue or a suggestion, you’re gonna listen to me. I know what my schedule is. know you’re not gonna surprise me at the end of the day and I’m gonna miss my kids ball game because I have to work late and couldn’t prepare for that. It’s that kind of stuff that earns you a union.

John Mortimer (37:45)
Yeah, I think it’s extremely similar in both countries from everything I’ve heard at conferences, everything I’ve read, everything you and I have talked about over the years. That’s incredibly true. And the union model that creates forced customers or forced

know, extraction of money to people is anti-excellence, it’s anti-accountability, as you just said. And I’d love you to send me some of those.

errant quotes if you’re able that they’ve gotten their walls beforehand because you years ago we brought a British expert, Professor Len Shackleton over from the UK and he was an expert on what Prime Minister Margaret Thatcher had done and the impact of European Court of Human Rights decisions that brought about basically voluntary membership and voluntary union dues to be the way that the British legal system from a labour law point of view works and so

Phil Wilson (38:17)
yeah, sure, sure.

Mm-hmm.

John Mortimer (38:44)
He said it definitely made unions completely centric on member services because they had to earn their customers. They no longer had forced customers. And that’s my fundamental criticism of the Canadian labor relations model. We are the only country left on earth that I know of that has free independent unions and free collective bargaining that allows forced union membership as a condition of employment and forced union dues for anything the union wants to spend its money on.

as a condition of employment. And I think that’s why many Canadian unions in the eyes of workers are not good, not capable, not competent, don’t get the job done because they can get away with not doing a good job. They get away with lying to people, misleading people. And, you know, the only good benefit of that is it keeps driving union density down. And as we get more jurisdictions that guarantee votes and the biggest win, I think,

out of COVID in our country is I think every Labour board now is doing electronic votes only for unionization and getting rid of a union. so voter participation is like north of 80, often north of 90 in votes now because people are just voting on their phones.

Phil Wilson (39:57)
Hmm.

John Mortimer (39:58)
So those are better decisions in those workplaces, whichever way it goes. And it’s just increasing engagement and participation in the decision making. But I think density will continue to decline. We have governments who will take away secret ballot votes. They’ll accelerate timelines. They’ll restrict employer speech in order to help union leaders who are not competent enough to win votes. They’ll say it’s employer intimidation. Look, the consequences for employer intimidation are similar.

Phil Wilson (40:02)
Yeah.

John Mortimer (40:28)
in both countries and our labor boards meet them out on employers like yours do. And lawyers are constantly admonishing employers to limit what they do in my experience. And I would say most of them do. But when comes to decertifications, unions lie and they get tripped up by smart employees with their lies. Okay. And it adds to their losses. And so it should.

Phil Wilson (40:29)
Mm-hmm.

I mean…

Mm-hmm.

And I mean, you know, the idea that if you make it really easy to get a union in and you make it really fast and nobody actually really gets to consider it and, and, and nobody really knows what it actually means. Like that helps unions on the front end. know, but it’s, it’s like being, it’s like being a retailer where you have just like crappy stuff, but you just sell it really fast. Like at some point the consumer goes,

John Mortimer (41:18)
you

Phil Wilson (41:22)
You know what? Like that was a really quick transaction, but it this sucks. I don’t really want it. And over time that becomes even worse, right? Like the more the more people that organize sort of under the idea that it’s this one thing, but it’s actually not that you end up. I think this ultimately is going to be the Starbucks lesson, right? You have all these people that have organized at Starbucks stores that think that they’re going to get all of this amazing stuff.

most of which is not even a subject of bargaining and the contract they know they don’t they don’t have a contract yet after you know many some of these locations four years now whatever contract that they ultimately end up with if the SEIU finally does agree to a contract which right now they’re resisting like crazy because they don’t want to agree to something that isn’t seen as a win but like that’s that’s what you sold people and you can’t deliver it and you know

John Mortimer (41:55)
correct.

Phil Wilson (42:21)
going in, you can’t deliver what you’re promising. And so now they’re kind of complaining. Well, it’s all Starbucks fault. That’s not true. The fault is the pitch to get people to sign on for your crappy product when like you can’t actually deliver the things that you promise and that’s going to create a lot of people in the future that are going like, yeah, don’t do that union thing. That’s stupid.

John Mortimer (42:47)
Yeah, well, and I think the Starbucks thing is even worse for the union. If we go back to the start in Buffalo, where they had fake employees who were being paid way above barista pay in the background, right? We have a late friend who did some research that I think showed that about $2.5 million had been spent by the labor movement.

Phil Wilson (42:57)
Mm. Yeah.

Mm-hmm.

John Mortimer (43:14)
on

fake employees organizing support and they went in there and you know I mean I’ve I’ve met some of those people in person ⁓ I’ve watched them on video conferences and been able to interact and ask them questions you know they were highly educated university educated people who were not really

Phil Wilson (43:36)
Mm-hmm.

John Mortimer (43:41)
a Starbucks barista, whether for a year, few months, or as a career, right? Because I ran HR for Wendy’s and we had employees, you know, with decades of service who didn’t want the manager’s job. Those people misled people and they precipitated situations and it got a ball rolling that I’m not sure to be candid that the Starbucks response of sending C-suite executives to mop floors in Buffalo was the right decision.

I’m not sure that, you know, and so it’s just like this, this thing sort of imploded around this fake situation of fake financed employees. And then it went across the country and spread. ⁓ And now there’s no collective agreement. They’ll eventually all be decertified. That’s for sure.

Phil Wilson (44:10)
Amen.

Yeah, I agree.

John Mortimer (44:30)
No matter

how much US blocking charges, no matter how much the labor board abrogates those employee rights to proceed. You cannot block a decertification as a union in Canada like you can in United States. A number of our labor boards are like, if you want to say the employer was behind it, you have to have a certain level of evidence, a certain level of particulars, otherwise you’re getting dismissed without a hearing.

Phil Wilson (44:57)
I mean, that would be wonderful here, right? Like the way that we block elections and prevent people from having a chance to vote on do I want to be represented anymore? And if you gave everybody the opportunity, there’s some really great labor reform that’s been proposed that there’s so many people that are in unions that are being forced to pay money to them that not only

Did they never get a say in whether or not they wanted to be represented? The generation before them and the generation before that, like nobody that works there had ever said, I want to be in a union. You’re just forced in.

John Mortimer (45:38)
There should be

a statutory legal requirement that every certain number of years there has to be a full on properly run labour relations board vote whether you want to keep the union or not. It shouldn’t rely on employees who are not lawyers who

don’t have professionally trained organizers who are trained what the legal limits are to lie and not abrogate the law but just slightly mislead people enough. I’ve heard about these training courses. I’ve read the decisions about what kind of lie is allowed and what kind of lie is not allowed. If our political leaders…

and bureaucrats and boards really believed in an excellent country and an excellent economy and the best for workers, they would stop making the least powerful party the butt of powerful unions. And they would make these people go through votes that would make them better or get kicked out.

Phil Wilson (46:27)
And

and if the Union had to run every couple of years like your legislator has to they’re going to work harder, right? They’re going to try to deliver to the constituency. They’re going to do the work. So going back to the, you know, right to work state unions have to work harder. If you had to have a vote every couple of years on whether you were going to continue to represent this group of workers, you would spend time representing them.

John Mortimer (46:33)
Yes.

Yeah, yeah. I just want to close with one other brief thing on mine, just on a decertification difference. We have jurisdictions in this country that are card check decertification. Quebec, the employees have to file 50 % plus one cards. If that’s what they’ve got, unions go on no vote. That’s fair, okay? Because it’s a card check on the way in in Quebec. British Columbia, Saskatchewan, there’s a window, 12 months in British Columbia.

Phil Wilson (46:58)
All right. Now we’re. Yeah, sure.

Mm.

Yeah. Right.

Mm-hmm.

John Mortimer (47:24)
24 months in Saskatchewan, the window for decertification opens up forever. During a collective agreement, during a strike, during a lockout, every day after one year in British Columbia, the employees have a legal right to remove the union. In Manitoba, there’s a window every single year for the employees. Anyways, right? No.

Phil Wilson (47:29)
Mm-hmm.

Yeah. And you’re where down here. Yeah, that’s not how it works. There’s a reason

why every contract is three years long. And that’s because you’ve got like complete protection from decertification for all but like a little 30 day window, you know, and hitting that window is almost impossible. So it’s like, you know, that that’s why we have contracts like that. All right, John, we’re coming up on time, but we have to settle the age old question.

John Mortimer (47:48)
Yeah.

Right.

Phil Wilson (48:12)
How do you spell labor?

John Mortimer (48:16)
So we spell it like the British do. And last time I checked, they were fundamental to the founding of America. But I guess when you decided to throw off your British overloads, something called the Boston Tea Party, you threw the U out with the T, okay? And we kept it because ⁓ I guess we were just a little more obedient.

Phil Wilson (48:37)
You know, I think the reason we dropped the U is because it’s the letter that starts the word union. All right. John, thanks so much for joining us. I know our listeners will be fascinated by like what’s going on in Canada, but I think at the end of it, you know, the takeaway, right, is create a great workplace and you can sort of avoid all this other nonsense.

John Mortimer (48:43)
Union. ⁓ I’ve not heard that before. That’s great. I love it.

Absolutely. Take care. All the best. Cheers.

Phil Wilson (49:04)
Yeah, thanks. See ya.