It’s not the kind of news most employers want to hear — employees are unhappy and a movement is afoot to formally organize. Effectively addressing a union-organizing drive is one of the most difficult tasks an employer will face. But before panic sets in, there are several factors to consider in crafting a response.
Know your rights
The organizing union, the employees (regardless of whether they support unionization) and the employer have rights. The union and employees have a right to unionize a workplace — labour relations legislation contains numerous complex rules and regulations that protect this right.
Employers also enjoy the fundamental right to express an opinion on the potential unionization of the workplace, as long as they do not coerce, intimidate or use undue influence in the expression of such opinions.
Employers will be most effective in addressing an organizing campaign if they exercise this right in a thoughtful way and thereby avoid any unfair labour practice complaint or finding.
In order for an employer to thoughtfully and effectively communicate with employees regarding unionization, it must first understand the reason why employees have even considered unionization. Every organizing campaign is different, but issues often range from dissatisfaction with compensation and benefits, poor management, rapid change as a result of new management and job security concerns.
It is surprising how often a small issue that could have been easily addressed results in an organizing campaign. But once an employer determines the reason why employees are unhappy, it can craft an effective strategy.
First-line supervisors are an employer’s most important resource in avoiding and responding to an organizing campaign:
•First-line supervisors who presumably interact with the employees on a consistent basis should have “intelligence” as to employee dissatisfaction, which is the root cause of most organizing campaigns. If the supervisors lack such intelligence, that may be reflective of poor first-line supervision which, in turn, may be the reason for the organizing campaign.
•First-line supervisors who have the respect of their subordinates are likely in the best position to have a thoughtful and meaningful discussion regarding the merits of unionization with them. However, supervisors must be adequately trained so they do not say anything that will result in an unfair labour practice and they must have the confidence to engage in a meaningful discussion regarding unionization.
Unfortunately, employers often turn their minds to training first-line supervisors about such issues after they learn about an organizing campaign, not before.
Be clear, respectful
For the employer’s message to be effective, it must be simple (without insulting the employees’ intelligence), accurate, respectful and, above all, speak to the employees’ issues. The employer should recognize the potential ineffectiveness (or consequences) associated with the use of stock employer phrases.
These phrases may be true, but they have to be applicable and communicated in a meaningful way.
There are also two types of messages employers should consider using more often:
First, the less-tangible aspects of unionization that will likely offend many employees’ intuitive sense of fairness should be communicated in a thoughtful way:
•Seniority: Employees should understand that seniority plays a central role in most unionized workplaces and it often means the most talented or hardworking employee will not necessarily be granted a promotion or new job that pays more.
•Bureaucratic: Unionized workplaces have a tendency to be more bureaucratic because employers have to apply the rules contained in the collective agreement, as opposed to what may be fair in the situation.
Second, although not always appropriate, an employer may want to admit to employees it recognizes its weaknesses, but wants to work with them to address these weaknesses. Follow-through is vital if the employer chooses to convey this message.
Marshall McLuhan’s famous saying “The medium is the message” applies to communicating to employees regarding unionization. The most effective medium is face-to-face (or the more pejorative term “captive audience meetings”) but it has to be done at a time and in a manner that does not result in an unfair labour practice.
In today’s social media world, communicating old school via a flyer, letter or memorandum may seem dated and out of touch so communicating with employees via social media may be a more effective way to communicate. But employers should recognize social media is a medium it can quickly lose control of and if the employer is not used to communicating this way, such a strategy could backfire.
Use different strategies
•Pre-certification application: The sooner the employer learns about the organizing campaign, the better. For example, if it learns about the campaign before it receives an application for certification, it will have the flexibility to alter terms and conditions of employment to address any concerns. The employer will also be in a position to communicate to the employees the significance of becoming a union member and how such union membership will be the basis upon which the union will, at the very least, be able to file a certification application.
Learning about an organizing campaign at the pre-application stage is particularly important in Manitoba, New Brunswick, Prince Edward Island and Quebec because there is no automatic representation vote — the number of employees in the bargaining unit who are union members will most likely determine the application’s success.
•Post-certification application: If an employer learns about the organizing drive after receiving the certification application in the jurisdictions that have an automatic representation vote (British Columbia, Alberta, Saskatchewan, Ontario, Nova Scotia and Newfoundland and Labrador), it will have to act quickly to communicate its message in a manner that does not result in an unfair labour practice. The message at the “pre-vote” stage will be different than the message at the “pre-application” stage.
Seek a legal expert
The implementation of an effective response to an organizing campaign will be difficult without the assistance and guidance of an experienced management-side labour lawyer who will be able to guide an employer through the applicable jurisdiction’s nuances.
Rick Dunlop is a partner at Stewart McKelvey in Halifax. He can be reached at (902) 420-3384 or firstname.lastname@example.org.
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