What to do when a union comes calling

Employers have to be careful what they say and do during union organizing to avoid charges of unfair labour practice

The issue of union organizing can be an area fraught with legal minefields and can generate panic and over-reaction among many non-union employers. Whether an employer is covered by provincial or federal labour laws, unions usually acquire the right to represent a group of employees by either:

• demonstrating it has majority support of employees in the proposed bargaining unit by submitting membership evidence in the form of membership cards signed by employees; and/or
• obtaining a majority of the ballots cast in favour of the union in a secret ballot vote conducted by the labour board.

In addition, unfair labour practice allegations involving threats to close the facility or terminations of key union organizers will likely lead to automatic certification as a remedy from the applicable 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 can do nothing. An employer 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 right of the employee to make his or her decision free from threats, intimidation, pressure or coercion.

A common acronym to help convey the scope of inappropriate conduct to employers and its management representatives is TIPS. Employers should not:

Threaten or terminate based on union affiliation;
Intimidate or interfere;
Promise, coerce or use undue influence; or
Spy.

It is crucial for managers and supervisors to know and 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 into making adverse comments which could be the subject of unfair labour practice proceedings. Managers should be on the alert for signs of dissatisfaction and should be directed to report their observations to more 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 is 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 on joining a union is the employees' to make.

Employers encounter greatest difficulty in communicating with employees if the communications are initiated solely in response to the threat of unionization. Instead, regular communication improves morale and reduces the need for a union to speak on the employees' behalf. It also provides early warning of problems which could lead to interest in a union. 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 than the "emergency" or “captive audience” meeting convened once the employer becomes aware of a union drive. Not only does the emergency session raise suspicion, it also signals panic to employees and may well reinforce their enthusiasm for union representation.

The existence of an organizing campaign does not prevent the employer from managing its business and, if necessary, from 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 the labour board finds concern over whether the employee's union activity played any part in the discharge, the complaint will succeed. Remedies may include reinstatement, back pay and a declaration that the employer violated the respective labour law statute. In addition, the remedy of automatic certification may be available in the given circumstances.

What employers may and may not 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 which are lawful in isolation might add up to a campaign of intimidation or promises.

Employers 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 may compare these benefits with those in relevant unionized and non-unionized companies;
• express their personal opinion 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.

Employers should avoid:

• promising pay increases, promotions, improved working conditions, additional benefits, or special favours, on condition the employees refuse to join the union or vote against it;
• threatening employees with job loss or reduction in wages, or using threatening or intimidating language calculated to influence an employee in the exercise of his right to support a union;
• discriminating against an employee who is taking part in union activities by separating her from other employees or intentionally assigning or transferring employees to undesirable tasks because of their union activities;
• engaging in surveillance of employees attending union meetings or receiving union handbills, or giving the impression employee activities are being watched;
• questioning employees about prior or present union affiliations, internal union affairs, or union meetings, and asking an employee whether she has signed a union card. It is not improper, however, for a manager to receive such information if an employee volunteers it; and
• asking 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.

The opportunities for an employer to influence employee decisions are limited once organizing begins. 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 & 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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