A Tale of Two Countries
Written by: Brian W. Burkett and Margaret E. Gavins, Heenan Blaikie LLP.
Since the 1960’s, organized labour in the United States has been steadily shrinking. A half-century ago, 30 per cent of U.S. workers were members of a union. By last year, that number had shriveled to 11.8 per cent. In comparison, Canada - with similar economic, social and political structures - has seen unionization rates remain relatively steady at approximately 30 per cent. Why have unions in Canada managed to hold their own compared with their U.S. counterparts? And will this trend continue in the face of declining unionization rates in Canada’s private sector?
Different Legal Frameworks
The diverging paths of Canadian and U.S. labour law over the past few decades help to explain the comparative strength of unions in Canada. While modern Canadian labour law owes its origins to the Wagner Act passed in the United States in 1935, since that time Canadian legislative developments have protected unionization and collective bargaining to a greater degree than in the United States.
Canadian procedures for winning certification rights are more favourable to unionization than the U.S. rules. The Canadian procedures offer access to quick votes or card-based certification, and restrict the employer’s ability to campaign against unionization.
Once a union is certified, Canadian law supports the new collective bargaining relationship by removing potential obstacles to the establishment of a first collective agreement. Labour laws across the country require an employer to include a dues check-off provision in a collective agreement at a union’s request. Further, if a strike occurs over a first collective agreement, collective bargaining statutes guarantee the employee’s right to return to the job within a specified period following the commencement of the strike.
Some jurisdictions go even further to support the establishment of a first collective agreement by making “first contract arbitration” available for unions who are unable to negotiate one. The concept was introduced in Canada in the 1980s to address perceived problems achieving first collective agreements. In response to a number of lengthy and sometimes violent first contract strikes, the Ontario government introduced a procedure for a neutral third party to set the terms of a first collective agreement. Seven provinces and the federal jurisdiction now have first contract arbitration procedures. In some Canadian jurisdictions, the procedure is automatic; in others, the union is required to meet a threshold, such as proving that the employer has refused to bargain or has taken an uncompromising position intended to frustrate negotiations.
Are Canadian Unions Set to Follow the U.S. Path?
While overall unionization rates in Canada have remained fairly steady at around 30 per cent, if private sector union density is considered separately the trend in Canada is arguably one of decline. Higher public sector unionization in Canada (71 per cent in the public sector, compared to just 16 per cent in the private sector) accounts for a good part of the differential rates between Canada and the United States. In both countries, traditional “blue-collar” sectors of the economy where unionization is greater, such as manufacturing, construction, and transportation, have not experienced the sort of growth in recent years that has occurred in the service sector—a sector in which establishing and sustaining collective bargaining rights has proven difficult.
The trend away from card-based certification toward mandatory votes is another factor. The Ontario experience shows that unions are less successful under a certification procedure that requires a vote. In 1995, Ontario moved from permitting card-based certification to requiring a vote in every case. In the ten year period prior to the introduction of the secret ballot vote in Ontario, certificates were granted in approximately 68.5 per cent of all applications. In the ten years following the introduction of the certification vote, unions’ success rate declined to 57.6 per cent. While card-based certification used to be the norm in Canada, six provinces out of ten now require a vote in certification applications.
Despite their common roots in the Wagner Act, Canadian and U.S. labour law have developed in different directions. Canadian labour law facilitates union certification and the achievement of a first collective agreement. However, while overall unionization rates in Canada have remained steady due in large part to high membership rates in the public sector, the recent decline in union representation in Canada’s private sector suggests that Canada could soon follow the U.S. path.
Heenan Blaikie LLP is the only Canadian member law firm of Ius Laboris (www.iuslaboris.com). Ius Laboris is a global alliance of 41 leading management law firms specializing in labour, employment, pension, health and welfare benefits, global mobility, and tax related legal issues.
Marketing matters: from IBM to Kyndryl
Prior to joining Kyndryl as Chief Marketing Officer, Maria had a 25-year career at IBM, most recently as the tech giant’s CMO where she oversaw all marketing professionals and activities across North America, Canada and Latin America. She has held senior global marketing positions in a variety of disciplines and business units across IBM, most notably strategic initiatives in Smarter Cities and Watson Customer Engagement, as well as leading teams in services, business analytics, and mobile and industry solutions. She is known for her work with teams to leverage data, analytics and cloud technologies to build deeper engagements with customers and partners.
With a passion for marketing, business and people, and a recognized expert in data-driven marketing and brand engagement, Maria talks to Business Chief about her new role, her leadership style and what success means to her.
You've recently moved from IBM to Kyndryl, joining as CMO. Tell us about this exciting new role?
I’m Chief Marketing Officer for Kyndryl, the independent company that will be created following the separation from IBM of its Managed Infrastructure Services business, expected to occur by the end of 2021. My role is to plan, develop, and execute Kyndryl's marketing and advertising initiatives. This includes building a company culture and brand identity on which we base our marketing and advertising strategy.
We have an amazing opportunity ahead at Kyndryl to create a company brand that will stand apart in the market by leading with our people first. Once we are an independent company, each Kyndryl employee will advance the vital systems that power human progress. Our people are devoted, restless, empathetic, and anticipatory – key qualities needed as we build on existing customer relationships and cultivate new ones. Our people are at the heart of this business and I am deeply hopeful and excited for our future.
What experiences have helped prepare you for this new opportunity?
I’ve had a very rich and diverse career history at IBM that has lasted 25+ years. I started out in sales but landed explored opportunities at IBM in different roles, business units, geographies, and functions. Marketing and business are my passions and I landed on Marketing because it allowed me to utilize both my left and right brain, bringing together art and science. In college, I was no tonly a business major, but an art major. I love marketing because I can leverage my extensive knowledge of business, while also being able to think openly and creatively.
The opportunities I was given during my time at IBM and my natural curiosity have led me to the path I’m on now and there’s no better next career step than a once-in-a-lifetime-opportunity to help launch a company. The core of my role at Kyndryl is to create a culture centered on our people and growing up in my career at IBM has allowed me to see first-hand how to prioritize people and ensure they are at the heart of progress in everything Kyndryl will do.
How would you describe your leadership style?
I believe that people aren't your greatest assets, they are your only assets. My platform and background for leadership has always been grounded in authenticity to who I am and centered on diversity and inclusion. I immigrated to the US from Chile when I was 10 years old and so I know the power and beauty that comes from leaning into what makes you different from other people, and that's what I want every person in my marketing organization to feel – the value in bringing their most authentic self to work every day. The way our employees feel when they show up for themselves authentically is how they will also show up for our customers, and strong relationships drive growth.
I think this is especially true in light of a world forever changed by the pandemic. Living through such an unprecedented time has reinforced that we are all humans. We can't lead or care for one another without empathy and I think leaders everywhere have been reminded of this.
What’s the best leadership advice you’ve received?
When I was growing up as an immigrant in North Carolina, I often wanted to be just like everyone else. But my mother always told me: Be unique, be memorable – you have an authentic view and experience of the world that no one else will ever have, so don't try to be anyone else but you.
What does success look like to you?
I think the concept of success is multi-faceted. From a career perspective, being in a job where you're respected and appreciated, and where you can see how your contributions are providing value by motivating your teams to be better – that's success! From a personal perspective, there is no greater accomplishment than investing in the next generation. I love mentoring younger professionals – they are the future. I want my legacy as a leader to include providing value in work culture, but also in leaving a personal impact on the lives of professionals who will carry the workforce forward. Finding a position in life with a job and company that offers me a chance at all of that is what success looks like to me.
What advice would you give to your younger self just starting out in the industry?
I've always been a naturally curious person and it's easy for me to over-commit to projects that pique my interest. I've learned over years of practice how to manage that, so to my younger self I’d say… prioritize the things that are most important, and then become amazing at those things.