What you can do if a union comes knocking (Legal View)

Employer's defence consists of 3 distinct stages

Unions exist to represent employees in a bargaining unit in their dealings with employers. A typical bargaining unit consists of non-managerial employees of a particular employer at a particular location or at multiple locations within a municipality.

Under the various jurisdictions in Canada, unions have to co-ordinate organizing drives in an effort to convince employees in a bargaining unit to sign membership cards. Depending on the jurisdiction, having enough cards signed may lead directly to a certificate or vote.

Either way, if the union is ultimately successful in its organizing campaign, it will achieve the exclusive right to bargain on behalf of the employees in the unit and represent them in their dealings with the employer.

Employers that are non-union would prefer not to have to start dealing with a union. The law has no problem with that viewpoint but sets parameters around just how far the employer can go in encouraging employees who are being targeted by union organizers to resist the union.

In particular, there are legal restrictions around an employer’s free speech, both in respect to signing union membership cards in the first place and in voting against the union in the event of a representation vote.

3 stages to employer’s defence

There are two stages to an employer’s defence against union organizing, plus a third stage if a representation vote is required.

Employers spend considerable time and energy on the second and third stages, but frequently forget the first stage — which is when they often can be most effective and face the least amount of resistance and scrutiny.

Stage one: That first stage is the wide-open freedom that non-union employers take for granted, which is the time before a union even appears on the scene. In other words, for most non-union employers, the first stage is happening right now.

The best defence against union organizing is through effective human resources management. Non-union employers should focus on developing reasonable policies, competitive wages and benefits, and excellent communication with employees.

Non-union employers should have a clear and consistent corrective action plan to sensibly deal with disciplinary issues of poor performance, inappropriate behaviour and bad attendance.

Some of the harshest critics of a lenient and inconsistent employer are other employees, who have to put up with the consequences of sub-standard behaviour, performance and attendance on a day-to-day basis.

Communications should be regular and in various forms, including face-to-face meetings — both in small groups and company-wide — using focus groups to consider particular issues, and ongoing use of newsletters, intranet, emails, tweets, Facebook and other ways of connecting with employees.

It is also extremely beneficial to have a complaint and suggestions system employees can use to challenge decisions and provide input, without fear of reprisal from the employer.

To be effective, this feedback system should be simple, clear and fairly administered. In other words, employees who use the system have to be successful, at least some of the time, and must never suffer any negative consequences as a result of using the system.

Stage two: The second stage is when the card-signing drive begins — or at least when it becomes apparent to the employer an organizing campaign is underway.

A campaign can be like an iceberg — much of it may take place under the surface and by the time the employer realizes the union is organizing, it may be too late. Usually, there is still time and an employer may still have influence.

Certainly, the employer should try to get its message out. And the law generally supports free speech.

An employer can be open about the fact that it does not want a union. Comparisons may be drawn with other unionized workplaces that have not been successful.

An employer should point out that union dues will be withdrawn from an employee’s pay and are not covered by the employer.

It also should point out that all employees will be represented by the union, such that they cannot opt out and they will still have to pay dues. In other words, employees who oppose the union should be motivated to speak with their co-workers and make their views known.

Finally, an employer should be clear that a union can make promises but it cannot deliver on those promises except through collective bargaining with the employer. That is, the employer would have to agree before the union can have any success at all.

What an employer cannot do is to threaten, intimidate or coerce employees. In particular, an employer cannot expressly or implicitly tie future job security to the success or failure of a union campaign.

An employer has to be careful with discipline and especially with discharge so any such decisions are completely objective and cannot be challenged as reprisals against union supporters.

At this point, it may be too late for the employer to fix compensation issues, as that may be viewed as coercive. It can also backfire if wage or benefits improvements are made and the union is successful, as they will certainly demand even more during the course of bargaining.

Stage three: The third stage is the final, frantic campaign before a representation vote is held. In Ontario, this is a compressed period of seven days. An employer has two principal objectives: First, to get as many employees as possible out to vote and, second, to convince employees to vote no to the union, whether they signed a union membership card or not.

Generally, the higher the voter turnout, the better chance the employer has of winning. An employer has almost no restraints on encouraging a high voter turnout, explaining the voting process and making clear that all votes are secret.

Employers would do well to encourage employees to think carefully about their voting decision, to consult with family members, friends and co-workers, and to not feel constrained in any way by any card or other commitment they may have made to the union before the vote.

The good news for employers is they have considerable freedom to speak directly and at length to employees about the benefits of remaining non-union. But the best time to start communicating is long before any union shows up on your doorstep.

Jamie Knight is a partner at Filion Wakely Thorup Angeletti in Toronto. He can be reached at (416) 408-5509, jknight@filion.on.ca or visit www.filion.on.ca for more information.

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