Canada: Trade Unions: The Do's and Don'ts (Torkin Manes LegalPoint Video)

Last Updated: February 5 2015
Article by Irv Kleiner

Irv Kleiner discusses trade unions as part of the Torkin Manes LegalPoint Video Series.

For most business owners or operators, nothing quite stings as much as feeling a sense of the loss of employee loyalty to an outside third party......a Trade Union.

 Most employers would like to believe that their employees share the same vision and enthusiasm for the future of their business as they do. Employers like to think of their enterprise as a "team project" which requires the commitment and dedication of all employees.

Unfortunately, employees may seek out a trade union to become their bargaining agent for a host of reasons that will be addressed in a future video presentation. For the purposes of this presentation, we would like to provide employers and members of management with a primer of the "Do's and Don'ts" that apply to employers upon learning of union organizing activity.

Most labour relations legislation throughout the Provinces, provide employees with an absolute right to become a member of a trade union and to assist a union in obtaining bargaining rights.

So.....you as an employer... may learn of union organizing activity in a number of ways. One possibility is that you may have employees who are opposed to unionization and may alert YOU or a member of your management team of the initiative.

Another possibility is that written union organizing propaganda may have been circulated and subsequently brought to the employer's attention because it was left in a change room or in a lunch room or even just provided by a pro management employee.

The most obvious campaign symptom is one which involves a union organizer actually soliciting employees in close proximity to the Employer's property.

As an employer, the best thing you can do.....is DON'T panic or act impulsively.

Union organizers actually anticipate or hope that employers will be caught off guard and will not respond properly, or do something that will actually facilitate the campaign and the union's efforts to organize.

As legal counsel to employers, I often hear about employers who immediately want to respond to the initiative by identifying the employees who are suspected of being involved in the effort and then terminating their employment for reasons that are characterized as legitimate ....for example a layoff for lack of work..........or for some form of misconduct that is characterized as just cause. This kind of response is not only illegal but could also adversely affect the outcome of the campaign from your perspective. 

A better approach is to quickly obtain legal advice and then establish a sound legal and effective strategic response to the initiative. While YOU as an employer might think that there is little that can be done to resist a union's organizing efforts, that belief is incorrect.  THERE IS INDEED A LOT THAT YOU CAN DO ONCE YOU AS AN EMPLOYER, UNDERSTAND YOUR RIGHTS!!

The Labour Relations Act allows employers to communicate with employees during a campaign and to express a point of view so long as the employer does not use coercion, intimidation, threats, promises or undue influence.  SO THAT IS YOUR FIRST "DO".....COMMUNICATE WITH YOUR EMPLOYEES..........THEY WANT TO HEAR FROM YOU AND KNOW HOW YOU FEEL ABOUT ALL OF THIS...............BUT......DON'T COMMUNICATE IN A MANNER THAT VIOLATES THE LABOUR RELATIONS ACT.

Under the legislation, you are also prohibited from refusing to employ persons, or from discrinminating against persons in their employment because they have become a member of a union or because they are attempting to assist a union in its organizing efforts. 

It is also unlawful for you as an employer to make threats of  dismissal or of the imposition of a pecuniary or other penalty with a view to compelling employees to refrain from becoming a union member or from exercising their statutory rights. HERE'S A DON'T.......So for example............ you CANNOT communicate to employees that you will reduce employees' work hours or, that you plan to charge for parking priveleges, or that the Company will shut down and move its operations offshore...... if the employees decide to bring in a union.

Having said that, as an employer you are not obliged to remain neutral during a campaign. you are entitled to communicate information that is both factual and responsive to any information that is circulated by the union in written form or otherwise.  SO A "DO"..... COMMUNICATE BUT COMMUNICATE PROPERLY AND LAWFULLY.

But upon learning of a campaign, DON'T promise employees new improvements such as wage increases, or better benefits in return for an agreement not to support the union. DON'T threaten to cease operations or to relocate the operations if the employees choose to support a trade union. These kinds of responses will surely result in legal proceedings being commenced at the Labour Relations Board and could also potentially result in the Union obtaining bargaining rights automatically. AT THE VERY LEAST, YOU WILL BE LEGITIMIZING THE UNION'S ASSERTIONS THAT YOU ARE AN EMPLOYER WHO BULLIES EMPLOYEES WHICH IS PRECISELY WHY THEY NEED A UNION!!

You should  communicate to employees that your organization recognizes that employees are entitled to make a voluntary choice about unionization ...but.....that it is important that employees understand that they do indeed have a choice as to whether they do or do not wish to be represented by a union.

In the course of delivering that message you will want to emphasize that while there may well be peer group pressure exerted by some employees on others to support the initiative to organize, the choice remains the employee's choice and they should not be influenced by others.

An important part of the your communication to employees should inform them that there is an attendant cost to having a union as a bargaining agent and that union representation is not free. Employees represented by a trade union are required to pay monthly union dues and possibly initiation fees and special assessments which would be deducted from their pay cheques.

You are also entitled to educate the employees of the Labour Relations Board prescribed processes for union certification as well as the employees' rights.

As an employer, you can state an opinion that you do not favour unionization and in the course of doing so, you can identify all of the factors that you would like your employees to consider in the course of deciding whether or not to support the union. A well developed communications piece should emphasize the positive workplace improvements and positive working conditions that have been put in place by the Employer without a trade union's involvement.

You might also wish to consider comparing your organization to unionized workplaces in the same sector with respect to such matters as wages, benefits, and superior working conditions (assuming that it will assist the Employer's position). Obviously, if your compensation structure is not competitive, this would not be a focal point of the communications piece. Instead, you might want to focus on  for example......."an open door policy problem solving or workplace dispute resolution", or,  the "flexibility in scheduling hours" , or that.... favourable bonus structure or profit sharing arrangement, that allows hardworking employees to enjoy some recognition for their efforts. 

You can set the record straight and respond to exaggerated guarantees, or promises or incorrect assertions that have been made by the union to employees in order to gain their support.

In the course of communicating with employees, DON'T appear to be evasive TRY TO honestly respond to employee enquiries in a manner that is within the legal boundaries established by the Labour Relations Board. If you have made mistakes.........there is nothing wrong with acknowledging that you have by saying.........we are only human and we have made mistakes but we have learned from them..........and we are getting better because of it. 

AND REMEMBER......WE THINK THAT IT IS GENERALLY best to communicate with employees in written form during the campaign so as to avoid any suggestion that you  communicated improperly. If there is a paper record of what was and wasn't stated, that is the better course.

The timing of your communications after learning of a campaign is critical as it may well be that timing is of the essence. An employee communique that is strategically well timed is one that may very well tip the scales in your favour....especially if there are a lot of people who are undecided and on the fence about the whole thing.

It is important for you to understand that a union organizing campaign is a period during which the employer's conduct and response to the union's campaign will be very closely monitored and scrutinized by the Union and possibly the Labour Relations Board. As such, you should not react impulsively but should consider the fact that your conduct and decision making could be objectively assessed by the Labour Relations Board down the road.

It is generally advisable for employers to try to operate their enterprise as they did before learning of the campaign. This also means that it is generally best to enforce company rules and policies fairly and uniformly with respect to all employees. A sudden and more stringent imposition of discipline for what is alleged to be employment misconduct upon persons who are suspected to be ringleaders in the union campaign, will surely attract a labour relations board complaint, especially if the same kind of employment misconduct has not attracted the same kind of disciplinary response in the past. 

So here is the problem that employers face when trying to respond to a union's organizing efforts.

It is not always clear as to what actions or words actually fall into one of those categories of  coercion, intimidation, threats, promises or undue influence. These words have been interpreted by the Board in literally hundreds  of published Board decisions. While the words are easily understood by most laymen, an employer's actions during a campaign are considered by the Board as it interprets those words.  It is important for you to appreciate therefore, that the words coercion and intimidation are interpreted against a backdrop of guidelines that have emerged from the many labour board cases which would be too numerous to review in a 5 minute video presentation. BUT.....BECAUSE OF THE MANY CASES  THAT HAVE COME OUT OF THE LABOUR BOARD THAT HAVE ACTUALLY FOUND EMPLOYER INTIMIDATION OR COERCION WHEN THE EMPLOYER THOUGHT IT WAS NOT DOING ANYTHING WRONG..........IT IS IMPORTANT TO FIND OUT JUST WHAT THE PROPER BOUNDARIES ARE FOR COMMUNICATION AND THEN.....NOT TO CROSS THOSE BOUNDARIES.

It is therefore imperative to quickly obtain professional advice after learning of union organizing activity so that an effective timely credible, lawful, and persuasive response can be implemented.

In conclusion, here are your TWO best "DO'S"......(1) create a positive work environment in which your employees feel that they are an integral part of the success of your business..........AND that their contributions are valued and properly recognized. In other words........establish and maintain a workplace is not one that would be an appealing target for a trade union.  One of the initiatives that we offer our clients is a "workplace audit where we will work in partnership with our clients to ensure that they are indeed proactive so as to maintain a work environment that is not conducive to a union's organizing attempts.

(2) Be prepared. There should be a contingency action plan in place to immediately react to union organizing activity in a manner that is both lawful and effective. Be on your toes instead of on your heels.......and that could make the difference. This should especially be the case in industries that are known to be heavily unionized. At Torkin Manes, our labour group has considerable experience in developing such an action plan which has given our clients a strategic advantage when dealing with the threat of unionization.

The issues raised in this video are for information purposes only. The comments contained in this video should not be relied upon to replace specific legal advice. Viewers should contact professional advisors prior to acting on the basis of material contained herein.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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