When ‘status quo’ crosses the line in union drives

A luxury Vancouver hotel that promised to “keep the status quo” and fix worker concerns “by next week” has been ordered unionized, after a labour board found the employer’s scramble to offer wage hikes, bonuses and better conditions amounted to unlawful union interference.

British Columbia’s Labour Relations Board concluded the downtown EXchange Hotel’s housekeeping meeting in 2024 — where management agreed to employees’ wish list and floated pay increases to match “the big hotels” — was a calculated attempt to stop a union-organizing drive in its tracks.

The employer went on to send a pre‑vote email emphasizing its “direct relationship” with staff and instructing managers to reach out to workers at home, a pattern the board labelled a “hit hard, hit early” response that justified remedial certification of the union.

For employers, the case is a reminder that reacting to union whispers with hurried concessions and tightly targeted messaging can backfire — even where the employer believes it is simply “listening” and correcting problems.

“The menu of potential things and ways in which the employer can misstep is a lot broader than the actual concrete ways in which a union can be found to be offside,” says Aleksandra Pressey, partner at Williams HR Law in Toronto.

“The legislation is supposed to be there largely to allow employees to exercise the right to bargain collectively and so because of that, there is some, I would say, disproportionate pressures on the employer to make sure that they're conducting themselves in a certain way.”

That's not say it’s all “doom and gloom,” she adds.

“I don't want to in any way suggest that once you become aware of a union-organizing drive, there's nothing you can do. That's simply not the case. You have to be very quick and you have to be very careful.”

‘A whisper is enough’

One very tricky area when it comes to union drives is the timing: when did the employer first become aware of the possibility of a push for unionization or actual certification? That will determine how long they have to respond, says Natasha Atyeo, associate at Grosman Gale Fletcher Hopkins in Toronto.

“A whisper is enough,” she says. “You should be really cautious of that… Be alert to the fact that you don’t want to be changing any practices.”

For example, says Pressey, if the employer has been pushing for a full return to the office and suddenly decides people can work from home more often, “that is potentially going to be suspect… And then the employer is going to have to demonstrate ‘No, this had nothing to do with the union.’”

When an employer makes changes that will appeal to workers in a reactive way, that's where they’re likely to get in trouble, she says: “If you're listening all along and trying to adjust and seeing if there's a reasonable way that you can meet your employees in the middle, then you're much more likely to be successful.”

Avoiding claims of interference

Another question that employers often ask is how to avoid claims of union interference when you’re doing regularly scheduled changes, such as wage increases, says Atyeo.

“[It’s about] making sure that you have good enough documentation of anything that was scheduled to happen because that, in essence, shouldn't violate any kind of union drive. If you have planned promotions for individuals or planned wage increases or benefit increases — whatever it may be… have that documentation to back it up.”

But she adds a caveat: “Know your employees” because you don't want to “cry wolf” to management by continually alerting them if nothing's really happening.

“Keep notes but be cautious of how high up… you pass that information onto, because there will hit a point, especially when someone's waving the union flag, that it will trigger a lot of these immediate steps… it depends on the level of severity.”

If an employer hears whispers of a union, Atyeo also recommends holding a non-mandatory meeting with all employees to discuss issues in an open forum.

“It cannot be mandatory because you don't want to fall prey to the captive audience meeting, which is a violation of the Act,” she says, adding that it’s also important not to speak to employees on a one-on-one basis.

“It’s best to do these on a broad, non-secretive scale to avoid falling prey to any of those faults within the act of private coercion… And you can have an open and honest conversation with your employees.”

Quick response required

“It’s a very tricky area,” says Pressey, citing the importance of timing for how an employer responds. In the B.C. case, the employer got wind of the union organizing relatively early, when people were still talking and the union was still trying to garner support and get cards signed.

But often employers find out about this when an application for certification has been filed and then, legally, they have just two days to respond to the union and the board, she says.

“It’s a difficult, nuanced area of the law and tight timelines tend to come together to create a bit of a pressure-cooker. and that's where some of these issues do pop up because the communications — not just what you say and how you say it — can be very tricky. And, in a lot of ways, they are quite circumstance dependent.”

And, of course, many have never faced union drives before, so they are unprepared – which is why legal advice is always recommended, says Pressey.

“You need somebody who's been through it before and can point out the circumstances because while the ideal would be to be able to take a breath and think, ‘OK, let's not be reactive, let's be intentional’ — you simply don't have the time for that.”

‘Tread that line of being neutral’

When it comes to the potential for a union drive, or an actual union drive, the most challenging area for employers is knowing what to say, says Pressey.

“You want to tread that line of being neutral,” she says. “As soon as you're in a place where you're trying to entice people to not join a union, when you know that that is actively happening, you could very well be offside.”

What you communicate and how you communicate is key, she says.

“You're going to want to think about how does the employer typically respond to questions and queries? If you've never really done an all-employee blast, and now all of a sudden you're emailing people three times a day, texting them, doing all sorts of things — anything that's wildly outside the norm — it’s going to trigger some concerns that you're acting in a way that's really intended to prevent employees from exercising their rights.”

The reality is that many employees don't really understand what it is that they're signing on for with a union, says Pressey. For example, they may not know they will no longer have that individual relationship with management and that “seniority essentially starts to govern everything, while individual performance is going to matter less and less,” she says.

“You want to make sure that you're being very careful so that it's not coercive, it's not misleading, it's not seeming to be motivated by anti-union animus — but you do want to get that information out there as best as you can, as quickly as you can.”

What you can and can’t say with union drives

Any messaging with employees has to be non-intimidating, non-coercive and non-threatening, says Atyeo, emphasizing the desire to have “a cooperative dialogue.”

That’s not to say employers must keep their mouths shut, she says, providing a few examples on what employers can legally say.

For example, they can generally express their opinion that a non-union environment is preferred and emphasize the positives of the current workplace.

“You can't do this under threats or coercion and certainly with no promises like wage increases or benefits or any kind of promise of betterment as a result of unionization,” says Atyeo.
“But that can include talking about former successes, talking about individual accommodations that maybe have been provided to certain employees that could be circumvented by a union.”

Employers can also tell employees that they have a direct relationship and communication with management that isn’t hindered by third parties, such as a union, she says: “It’s good [for them] to know that that relationship can become more distant as you put an intermediary body in between.”

The cost of joining a union, including dues, can also be explained to employees, along with emphasizing the non-monetary positives of work such as job security or good working conditions, says Atyeo: “You can emphasize any of those benefits that you do provide directly to employees.”

For example, if the union is telling people that they will be able to work from home, they cannot promise that, says Pressey: “That is likely going to be management rights and management determines where work is performed, how work is performed.”

However, she warns that even the facts can be offside depending on how they're presented.

“If it's a fact that having a union is going to raise your costs and [the employer] may want to shut down the business, you can't say that because it's going to be considered to be coercive or an intimidation tactic.”

Sticking to the script – when possible

While following a script may be preferred, it could also be awkward or forced, so employers should make sure to keep notes at all times – especially management – to protect themselves. But responding to union organization is not really an intuitive exercise, says Pressey.

For example, employers might think they are just conveying facts – but those might not be allowed.

“It might absolutely be true that if a union is certified, there could be negative consequences for the company. It could be absolutely true that business might suffer and there may be job losses or the company might have to shut down because they will no longer be able to operate as going concern. It may very well be true that management is disappointed, they feel this isn't who we are and they don't think it's necessary to bring in a union.

“But saying those sorts of things, all of that, could be offside.”

As a result, managers need to quickly be taught about unfair labour practices, says Pressey.

“You want your managers, especially your frontline managers, to be very, very tightly scripted, both in what they can say and what they cannot say… some of the pitfalls are that often your managers don't really understand the negative things that could occur — like remedial certification.”

For example, you may have a leader who’s very close with their team and decides to speak to someone off-script. “It almost always backfires,” says Pressey, because even if the employee is receptive, they may go and tell the union which could then claim unfair labour practices or interference.

“It's not that you can't say anything, but you have to be really, really careful with what you're going to say, who's going to say it, and how you approach the whole situation.”

What drives union drives?

When all is said and done, it’s also important to remember that the issues that often prompt employees to consider a union are not always tangibles such as wages, says Pressey.

“It's often [about] transparency and feeling, understood, valued… that you know what's going on and the employer is going to tell you,” she says, highlighting the importance of a workplace where people feel psychologically safe to speak up.

“Really, if you have a culture where you are transparent, you listen to employee grievances, you respond to things in an appropriate, measured manner… I'm not saying no union is ever going to come knocking on your door, but chances are higher that you're going to find out earlier.

“Because employees are going to come and say, ‘Hey, you should know this is happening.’ They're not necessarily all going to be 100% in favour of a certification of a trade union.”