By Sheryl Smolkin
What would you do if union representatives tried to organize your workplace? Responding too forcefully may not only get you into labour law trouble but alienate employees and drive them into the union’s arms. But not responding forcefully enough may be even worse, especially when dealing with unions that are more interested in disrupting your business than promoting your employees’ interests. With the help of leading labour lawyers, we’ll show you the 8 do’s and don’ts of union organizing response.
Click here to find out about the union organizing laws of your province.
WHAT THE LAW REQUIRES
To get the right to represent employees in collective bargaining, the union must get the support of a minimum percentage of employees in the group. Although the approval procedures vary by jurisdiction, there are 2 basic methods of union “certification”:
Secret ballot: In BC, AB, SK, ON, NS and NL, once the union can demonstrate enough support, e.g., in Ontario, by getting at least 40% of employees in the bargaining unit to sign union cards, the government may order a vote by secret ballot that the union must win by majority, i.e., 50% + 1.
Card certification: In QC, NB, MB and PEI (and under federal labour law), certification may be achieved either by vote or automatically without a vote if the union gets a specific percentage of the employees in the bargaining unit to sign union cards.
4 THINGS YOU CAN’T DO—S.P.I.T.
Although you can participate in the union organizing process, you can’t bully, harass, threaten, coerce or obstruct. Such transgressions are considered “unfair labour practices” that can result not just in fines and money damages but remedies that make it easier for the union to win certification, e.g., having to give the union access to company bulletin boards, hold a vote or even in some provinces (including BC, Fed, MB, NB, NS and ON) certifying the union without the requisite vote/minimum sign-ups. To help you apply these general principles to real life situations, we spoke to leading labour lawyers, including: 1. Keyser Mason Ball LLP partner Patrizia Piccolo and associate Nav Bhandal; and 2. Heenan Blakie partner Greg McGinnis. Let’s start with what you can’t do:
You’re not allowed to engage in surveillance and other privacy intrusive activities to keep tabs on the organizing campaign. Examples:
Another form of unfair labour practice is to offer employees specific incentives to defeat the union. This includes not just bald promises of pay raises and other benefits but more subtle abuses of the purse strings like cynically implementing improvements after organizing begins as a political tactic designed purely to defeat the campaign. Another example: Alberta casino commits unfair labour practice by paying employee $148,000 to cover his legal expenses in opposing a union merger [Gateway Casinos G.P. Inc. (Re),  A.L.R.B.D. No. 32, June 1, 2010].
Discipline in reprisal for union organizing or support is the classic example of illegal intimidation.
Example: Ontario steel screen manufacturer must reinstate 2 welders with excellent service records and no history of discipline whose firings were sudden, “totally unexpected” and clearly in reprisal for playing leading role in newly launched union organizing campaign [Tate Andale Canada Inc.,  OLRB Rep. October 1019, Oct. 13, 1993].
Employees can be disciplined for union organizing activity that violates legitimate company policies, e.g., bans on harassing co-workers and customers. But be prepared for employees to raise their status as a union organizer to contest the discipline and don’t proceed unless you’re sure you have rock solid documentation to prove the discipline was legitimate. Other forms of conduct that may amount to intimidation even if well intentioned:
Pop Quiz: 3 companies make the following statements:
Question: Which employer(s) committed an unfair labour practice?
Answer: All 3. Any threat to jobs—no matter how veiled or subtle—is not permitted, including failure to say anything to deny a threat a la Company C. In fact, that example comes from a real case in which Wal-Mart’s terse but powerful “no comment” response to a question about jobs was found to cross the line [United Steelworkers of America v. Wal-Mart Canada, 1997 CanLII 15529 (ON. L.R.B.), Feb. 10, 1997].
Of course, unfair labour practices include not just threatening but actual elimination of jobs, seniority and other employment rights of workers in the bargaining unit after—and because—the union is certified, e.g., closing plants, relocating operations or contracting out work as a result of an anti-union animus. Realistically, though, because employers have a right to shut down operations, such claims are very hard to prove.
Example: Supreme Court of Canada throws out unfair labour practice claim against Wal-Mart for closing Québec store after unionization citing lack of evidence that decision was due to anti-union animus rather than legitimate business reasons [Plourde v. Wal-Mart Canada Corp.,  S.C.J. No. 54, Jan. 21, 2009].
Supreme Court: Wal-Mart Needn’t Answer to Union for Closing Store
4 THINGS YOU CAN DO
The 4 things you can do:
5. Communicate Your Position to Employees
“You’re allowed to tell employees that you wish to communicate directly with them,” notes Piccolo. “You have every right to let your employees know that you don’t feel they need or would be well served by having an outside union represent them.” Although you can’t threaten their jobs or talk about the things you’ll do to them, you can mention the disadvantages employees will incur if the union wins, adds McGinnis, including the costs of dues and the unfavourable personal experiences of other employees represented by the union.
6. Correct Union Misstatements
You’re also allowed to correct any misleading facts or statements the union makes. “For example,” Piccolo explains, if the union guarantees raises, “you can respond by telling employees that the things union promises during an organization drive are part of a political campaign, that all terms of employment will be subject to negotiation and that no union can force a company to grant a raise.” In Ontario and other provinces where certification votes must be held, you can also let employees know that they can vote against the union even if they’ve signed a union card. You can also reassure employees that management has an open door policy and is available to answer any and all questions about the unionization process.
7. Sound Out Your Employees
Although you can’t promise and grant concessions during the campaign to buy off employees, you’re allowed to use a union organization drive as an occasion to poll your employees, identify their concerns and at least lay the groundwork for addressing them in the future. Such efforts may include not just better benefits but ways to improve fundamental employee communication, participation and complaint processes.
8. Protect Operations from Disruption
While you can’t obstruct the legitimate efforts of unions to organize your workforce, you can prevent them from engaging in disruptive activities during work hours. As a practical matter, you need to keep your cool if you find union organizers handing out pamphlets or gathering signatures on company grounds. Don’t try to physically remove them or even call the cops. “This will create an incident that earns you a reputation and a place on the union’s website and hit list,” McGinnis warns. What should you do? “Calmly explain that this is your private property—perhaps using a survey map for effect—and politely ask them to leave.” This works more often than not, McGinnis continues. But if the organizers refuse to leave and the problem is serious, you should call the police as a last resort.
You can also report disruptive, organizing activity, harassment and threats to your province’s labour relations board. The same is true of any employees who have complaints about union reps or co-workers to the labour board. Let employees file their own complaints with the Board without intervening. Give employees contact information but let them pursue the matter on their own with minimal help from you, Piccolo advises. “That way it won’t look like you’re driving the complaint process.”
In the best of all worlds, employers would stay out of the fray, allow the union to make its pitch and trust its employees to deny it certification. Needless to say, many employers are unable to resist the temptation to influence the process. And there’s nothing necessarily wrong with that. The problem, of course, is that the employer is the 800 pound gorilla. The union laws are designed to allow employers to have their say and protect their rights without abusing their power over employees to unduly influence the outcome of the union campaign. The 8 practical do’s and don’t’s set out in this piece should enable you to keep your own actions within bounds when the union comes knocking.
Click here to find out about the union organizing laws of your province.
Patrizia Piccolo: Partner, Keyser Mason Ball LLP, Mississauga, ON, (905) 276-0421, firstname.lastname@example.org
Nav Bhandal: Associate, Keyser Mason Ball LLP, Mississauga, ON, (905) 276-0402, email@example.com
Greg McGinnis: Partner, Heenan Blaikie, Toronto, (416) 643-6957, firstname.lastname@example.org