Avoiding unions all about being proactive (Legal view)

Employers need to be rational, and not panic, if a union movement arises in the workplace

One of the last things an employer wants to hear is the “U” word. Employers that don’t have unions tend to panic and overreact when the issue of unionization arises in their workplaces. This can lead to trouble.

After all, if a labour board finds an employer engaged in egregious conduct in which the true wishes of the employees cannot be ascertained, a union can be automatically certified. And unfair labour practice allegations involving threats to close a facility or terminations of key union organizers will likely lead to automatic certification as a remedy by a labour board.

If an employer finds itself in the midst of an organizing campaign, it should be aware employees:

• have the right to join a union if they so desire;

• are equally free, and have the right, to refuse to join a union; and

• have the right to be free from anyone, including the union, co-workers and members of management, trying to intimidate, threaten, pressure or coerce them in their decision.

These rights do not mean an employer is powerless. It can still communicate with its workforce on the issue of unionization so long as its message, and methods of conveying the message, do not run afoul of the employee’s right to make a decision free from threats, intimidation, pressure and coercion.

The role of managers and supervisors

Managers and supervisors need to understand the restrictions on employer communications. Lower-level managers are often the first to learn of union organizing activity and, without adequate preparation, may volunteer or be provoked to make adverse comments that could be the subject of unfair labour practice proceedings. Managers should be on the alert for signs of dissatisfaction and report their observations to senior management immediately.

An employer’s strategy should utilize managers and supervisors effectively but maintain close control over the content, timing and method of communication. The goal of every communication should be to lead employees to the conclusion union representation is not necessary to achieve favourable compensation and fair treatment. At all times, however, employer representatives must emphasize that the ultimate decision about joining a union rests with the employees.

The importance of ongoing dialogue with staff

The greatest difficulty in communication with employees comes if it is initiated solely in response to the threat of unionization. Regular communication with the workforce improves morale and reduces the need for a union to speak on the employees’ behalf. It also provides early warning of problems that could lead to interest in a union.

Moreover, if an employer has initiated an ongoing dialogue, there is no reason why the dialogue cannot continue during an organizing campaign. Meetings conducted as a part of a continuing process of dialogue by supervisors and managers who normally deal with the employees will raise far less suspicion. The existence of an organizing campaign does not prevent the employer from managing its business and, if necessary, disciplining or discharging employees.

Labour legislation does, however, clearly prohibit any reprisal for employee participation in an organizing campaign. In any complaint of discharge or discipline for union activity, the onus is on the employer to demonstrate it was not motivated by anti-union reasons.

If an employer discharges an employee, who happens to be a union supporter, for poor performance or insubordination, it may be required to demonstrate the action was unrelated to the employee’s union activity. If the labour board finds concern over union activity played any part in the discharge, the complaint will succeed. Remedies may include reinstatement, back pay and a declaration the employer violated the respective labour law statute. Automatic certification of the union may also be an option.

What managers can and can’t do

These are some acts and statements that are generally permissible, bearing in mind an employer’s conduct will be viewed cumulatively by the labour board and actions that are lawful in isolation might add up to a campaign of intimidation or promises. Managers may:

• tell employees the law gives them the right to refrain from joining a union and employees may not be threatened or coerced into joining;

• tell employees of the benefits they enjoy and compare these benefits with those in relevant unionized and non-unionized companies;

• express their personal opinion that they prefer a non-union environment as long as the opinion is made without threat or promises;

• tell employees a union can make promises while an employer must confine its remarks to the facts; and

• correct misstatements made by the union.

Managers may not:

• promise pay increases, promotions, improved working conditions, additional benefits or special favours on condition the employees refuse to join the union or vote against it;

• threaten employees with job loss or a reduction in wages, or use threatening or intimidating language calculated to influence an employee in the exercise of his right to support a union;

• discriminate against an employee taking part in union activities by separating him from other employees;

• intentionally assign or transfer an employee to undesirable tasks because of his union activities;

• engage in surveillance of employees attending union meetings or receiving union handbills, or give the impression employee activities are being watched;

• question employees about prior or present union affiliations, internal union affairs or union meetings;

• ask an employee whether he has signed a union card (it is not improper, however, for a manager to receive such information if an employee volunteers it); or

• ask employees their personal opinions about the union or the feelings of other employees (it is not improper, however, for a manager to receive such information if an employee volunteers it).

Non-union employers wishing to remain non-union are best advised to be proactive in creating a workplace that practices positive employee relations and treats employees with dignity and respect. A workplace that fosters open communication and provides competitive compensation, employment security and dispute resolution will help minimize the incentive for employees to seek outside third-party assistance to resolve their workplace issues.

John D. Lewis is a partner with the labour and employment group in the Toronto office of Heenan Blaikie LLP. He can be reached at (416) 643-6835 or [email protected].

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