The Union at the Doorstep: A SURVIVAL GUIDE FOR MANAGEMENT Union Avoidance

John-Edward C. Hyde, B.A., M.A., LL.B., J.D.

Certified as a Specialist in Labour & Employment Law by the Law Society of Upper Canada



• Overreaction is harmful, but Inaction is just as bad
• Managers and/or Supervisors are the “Employer” as far as the law is concerned
• As far as possible, carry on business as usual


Union Avoidance – Overview

• Monitor morale and Union “temperature” (listen and observe)
• Instill confidence that the company will do the right thing
• Do the right thing
• Communicate doing the right thing
• Analyze how to strengthen Union-avoidance techniques


Employees have a right to join a Trade Union

• Management must commit to adhere to this right in all of its communications to employees
• Unions have a much greater degree of latitude to pressure employees


The Organizing Process

• Disgruntled or dissatisfied employee(s) contact Union organizer
• Union organizer meets with small group of employees to educate them on how to organize
• Employees form organizing committee and begin overtly or covertly collecting membership cards


Union-Organizing Techniques

• Demands for recognition and claims of majority support
• Employee visits and cell formation
• Union “salts” (i.e. plants)
• Offsite employee social events (i.e., Union-sponsored happy hour)
• Invitations to employer to debate or attend Union meetings
• Hand Billing and informational picketing (area standards)
• Rallying behind employees during major adverse events (eg mass layoffs)


Key Concerns Targeted by Unions

• Job Security
• Capricious Treatment
• Arrogant, hostile, or abusive management or supervision
• Incompetence of direct supervisor
• Fairness in compensation and benefits package (in comparison to other places of employment)
• Unique to hourly/production/manual labour employees:

➢ Occupational and workplace safety concerns

➢ Fairness issues relative to job status (salary vs hourly; manual labour vs clerical)

➢ Financial rewards for longevity/loyalty

➢ Acknowledgements of seniority

• Unique to “white collar” employees:

➢ Weak, ineffective or inaccessible management

➢ Feeling out of the loop regarding important corporate changes/developments

➢ Lack of upward mobility

➢ Discriminatory personnel practices (including favouritism and unlawful treatment)

➢ Inability of supervisor/manager to protect them and control their fate


Union Strategies to Get Employees to Sign Membership Cards

• “It’s only to get an election. You still have a chance to vote.”
• “It doesn’t obligate you.”
• “No one will ever know”
• “We simply want to know how to get in touch with you”
• “It’s only to obtain more information”
• “Everyone else has signed”


Supervisor-Controlled Conditions Affecting Unionization

• Failure to listen and understand before making decisions or responses
• Failure to respond promptly, or at all, to questions, problems, or complaints
• Failure to communicate what employees need to know about the company, its policies, and/or their jobs
• Unawareness of employees’ concerns before they become issues
• Lack of courtesy and respect
• Inability to treat employees equally
• Inability to motivate employees to work toward common goal
• Failure to convey sense of job security
• Failure to convince employees that wages and benefits fair and competitive


Supervisors who Inspire Unionization

• Bossy, pushy or on ego trip
• Demands instead of requests
• “You Do” attitude vs. “Let’s Do”
• Weak or insecure; Does not take a stand
• Critical of management or company in presence of employees (openly jaded or disloyal)
• Self-serving or dishonest
• Plays favourites or exhibits inconsistent application of company policies
• Not open to ideas, suggestions or change: close-minded about improvement
• Habitually profane and disrespectful
• Negative or unappreciative attitude (lack of personal interest in subordinates)
• Failure to acknowledge achievements, or to give recognition when due (blames downward)


Management-Controlled Conditions Affecting Unionization

• Uncompetitive pay and benefits
• Poor working conditions
• Poor front-line supervision
• Inconsistent application of policies
• Sometimes the problem is perception, rather than reality
• Adequate and clean facilities
• Adequate break and restrooms
• Adequate safety and security
• Regular communications regarding the direction of the business


Employees Unions Exploit

• Lazy, non-productive, or inefficient
• Footloose and fancy-free, no major obligations or commitments; financial or otherwise
• Rebel, anti-establishment, opposes society, structure, management
• Malingerer, something-for-nothing attitude
• Whiner and complainer
• Activist
• Overqualified for current job position


Early Warning Signs

• Noticeable increase in casual employee gatherings (tendency to stop talking when supervisors approach)
• Employees seem uncommonly busy during breaks, before or after work, during lunch hour
• Discussions of informal employee “get-togethers” after hours
• Nature of employee complaints change and become noticeably more or less frequent
• Complaints/concerns presented by a delegation instead of individual employees
• Formation of new cliques with new leaders
• Employees begin using buzz words like “job security,” “concerted activity,” “economic pressure,” “duty to bargain” and “right to representation
• Sudden change in employee attitudes, coupled with a reluctance to talk/deal openly with management
• Former employees, especially discharged ones, loitering on premises
• Any person (employee or outsider) asking for names/addresses of employees
• Unknown individuals appearing at workplace and meeting with groups of employees (eg in the parking lot)
• Personal “visit”, phone call, or letter from Union rep
• Union cards, handbills, or leaflets scattered around
• Anti-company graffiti
• Once popular and/or friendly employees become withdrawn, outcast, and avoid supervisors/co-workers (may oppose union)
• Sudden unexplained negative change in work habits/productivity
• Increase in questionable usage of sick time coupled with noticeable attempts to take advantage of HR policy “loopholes”


Non-Solicitation/Uniform Rules

• Have a pre-existing non-solicitation policy in place.
• Only prohibit the wearing of Union buttons or paraphernalia if there is a pre-existing policy
• These policies must be applied and enforced consistently
• These policies must be straightforward and easy to understand
• As always, act quickly when there are violations


Restrictions on Access of Union Organizers

• No right for organizers to have access to the employer’s property, or to personal information of employees.
• If organizers attempt to access the property, ask them for their name, affiliation, and contact information, and inform them of the non- solicitation policy.


Card Signing Campaign

• If the union is successful in signing up at least 40% of the individuals in the bargaining unit proposed by the union as at the date the certification application then the OLRB will direct a representation vote (35% threshold in Quebec; 45% threshold in Saskatchewan and BC, 50% +1 threshold in PEI).


The Application for Certification

• Union files their membership evidence and a description of the proposed bargaining unit
• Employer must be notified of the application the day it is filed
• Employer has just two days to dispute the Union’s proposed bargaining unit (strict deadline) Ontario


The Representation Vote

• Usually held within 5 business days after the day of which the certification application is filed (BC – 10 days, AB – 2 weeks)
• Union must gain more than 50% of the votes cast in order to be certified by a Labour Board.
• If the union loses the vote, or withdraws their application prior to the vote, then it is prohibited from re-applying for a period of 1 year. – Ontario


Card-Based Certification

• Newfoundland & Labrador, Prince Edward Island, New Brunswick and Quebec have what’s known as “card-based certification”
• This means that if a certain threshold of employees are members of the union, the union will be certified without a vote (NB – 60%, PEI – 55%, NFLD/QC – 50%)
• This makes it much more difficult for the employer to respond.


When Employees who sign a card change their mind

• Must write to the Labour Board in a “Petition Against the Union” clearly indicating their desire to revoke membership
• Must be provided on or before the date certification is filed: post application too late
• Labour Boards will be suspicious of employer involvement in any Petition against the union


Validity of the Employee Petition

Management must never:

1. Permit circulation of the petition during work time or on company property

2. Permit employees to use company facilities to prepare the petition

3. Participate in the origination or signing of petition

4. Select, suggest, or pay for legal counsel to represent objecting employees


The Counter-Attack

• Must begin with premise that employee perception is the reality
• Plan should be implemented even before (concrete) knowledge of Union-organizing efforts
• Create impression that employees are “in the loop”
• Highlight stability created by seemingly harsh corporate decisions
• Publicize open-door policy
• Get the key decision-maker (i.e. someone who can control their fate) in front of the employees
• Train supervisors on recognizing signs of Union organizing
• Train supervisors how to avoid and be responsive to the typical reasons for unionization 
• Assemble a response team
• Members from HR
• Members from operations
• Outside lawyers and consultant
• One team member responsible for external communications with press and customers


Paradigms for Dynamic Union Avoidance

1. Monitor morale and Union “Temperature” (listen & observe)

2. Instill confidence that company will do the right thing

3. Do the right thing

4. Communicate doing the right thing

5. Continually analyze how to strengthen Union- avoidance techniques


Limits on Employer Activity

• Cannot attend Union meetings or engage in undercover activity for this purpose
• Cannot threaten, intimidate or punish employees who engage in or spearhead union activity
• Cannot request info about Union matters
• Cannot prevent employee Union representatives from soliciting memberships during non-working time (unless consistent with pre-existing non-solicitation rules)
• Cannot grant wage increases, special concessions, or promises to keep Union out
• Cannot question a prospective employee about affiliation with labour organization
• Cannot threaten to close up, move or curtail operations
• Cannot engage in discriminatory practices (work assignments, overtimes, promotions, etc).
• Cannot discipline Union advocates more severely than others
• Cannot deviate from known company policies to eliminate a Union supporter
• Cannot state or suggest that unionization will force the company to lay off employees or shut down
• Cannot make statements to the effect that you will refuse to deal with any Union.
• Cannot give financial support or assistance to employees
• Cannot visit homes of employees to urge them to oppose the Union
• Cannot link pre-planned raises or benefit enhancements to successor failure
• Cannot withhold pre-planned or regular bonuses or raises because of organization
• Cannot question employees about whether they have signed a card or affiliated with Union.


Cardinal Sins During Union Organizing



What Employers Can Do

• Keep non-employee organizers off the premises (but not public areas)
• Remind employees about the benefits they currently enjoy (avoid veiled promises or threats)
• Inform employees that signing a card does not mean they must vote for the Union (except in card-based jurisdictions, where employees should be advised that signing a card can mean no vote)
• Inform employees of the disadvantages of unionization, such as strikes, picketing, dues, fines, assessments
• Inform employees about your prior experience with Unions and what you know about Union organizers
• Inform employees that the law permits hiring new employees to replace any employee who goes on strike for economic reasons (some jurisdictions)
• Inform employees that no Union can obtain more than you, the employer, can give
• Inform employees that the local union will be dominated by the International Union and the members will have little say in its operation
• Inform employees of any untrue or misleading statements made by the organizer
• Respond to employee questions about Union membership (but do not interrogate employees about their views)
• Reply to Union attacks on company policies, practices, or managers/supervisors
• Advise employees of their legal rights under the Labour Relations Act (but be correct).
• If asked (and only if asked) explain how to revoke a signed card
• Conduct an aggressive pro-company campaign (consider hiring consultants)
• Continue to administer normal discipline
• Proceed with pre-planned layoffs, promotions or reorganization (But keep careful records where timing is suspicious)


Planning Counter-Communications

• Consider the following:

1. How will we craft the message?

2. Who will deliver the message?

3. How many/how often?

4. What is the best forum or method for delivery?


What Can Managers Say or Discuss?

•In very controlled circumstances, managers and supervisors can discuss the following:

1. Union dues;

2. Lack of personal treatment;

3. Levelling;

4. Loss of merit system;

5. Effect of a strike;

6. Union ability to meet promises;

7. Factual comparison to other employers in the same industry.


Written Communications with Employees

• Communicate in writing with employees as soon as possible, and acknowledge the rumoured organizing campaign
• Should, to the extent possible, reflect the historical pattern of communications between the employers and the employees
• Should be either handed out to employees or included within their pay envelopes, rather than posted on a bulletin board.


Content of Written Communications

Recommended to use three separate communications, each progressively more “hard-hitting”:

1. Positive letter encouraging team-building (1 page)

2. Emphasize the positive aspects of a non-union workplace (2 pages)

3. Fair comment, emphasizing the fact that the Union is a large organization, and “big business” in its own right.


What Employers Should Say

• Union members are required to pay dues monthly
• Dues may be deducted from your paycheque before you get it (most Unions insist on this)
• If negotiated, a Union shop agreement may require the company to terminate you for falling behind in your Union dues
• As a Union member, you would be subject to Union disciplinary procedures if you work during a strike
• Must pay all dues and fines or other obligations to remain in good standing with Union
• You might be required to go out on strike and picket even though you would prefer not to
• No unemployment benefits are paid during economic strikes
• Union politicos may trump your seniority in the event of a layoff
• We do not want a Union and do not need one
• The company prefers to deal with employees individually and directly; they don’t need to pay an outsider to intercede
• Explain the benefits they currently enjoy without having to pay Union dues (avoid veiled promises/threats)
• Explain how their wages, benefits and working conditions compare with other facilities in the industry
• Don’t promise raises, but discuss history of average wage increases in past
• The Union cannot guarantee anything
• Collective bargaining is a give-and-take process (but do not say it will result in less)
• No law requires the company to agree with anything
• Restrictive work rules may harm the business
• While law prohibits the company from making untrue or misleading statements about Unions, the Union is not bound to the truth
• Employees do not have to talk with Union organizers unless they want to


What to Say to Employees Who Seek Advice From Managers

• An inquiry may disguise an attempt to “set-up” the employer for an alleged violation of the law, often referred to as an Unfair Labour Practice
• Accordingly, it is imperative that the employer has clear guidelines on how to handle employee inquiries
• For Legal questions, direct employees to the OLRB
• All discussions should be witnessed by a second management official
• Carefully document all discussions, and keep notes in a secure file in the HR Department
• Specifically, any information concerning intimidation, coercion, harassment, fraud or misrepresentation, or misleading statements on the part of the union or a union official ought to be carefully documented


What Employers Can Share with Employees:

Experiences with a Union

Limits on Employer Communication

1. Coercion;

2. Intimidation (ie. suggestions of reprisal);

3. Threats (ie. threat to close operation or threats of dismissal);


The Walmart Decision

• An employee asked if the Windsor Walmart would be closed.
• Management replied “We cannot discuss that”, despite Walmart having an open-door communication policy
• That was held to have a “chilling effect” on the employees’ wishes to unionize.
• Union was automatically certified without a vote.


Closed-Door Meetings

• Not specifically prohibited, but should be avoided if at all possible during an organizing campaign
• May be viewed as unduly influencing employees
• Should only be held if there is a past history of holding such meetings, and not on paid working hours.


Unfair Labour Practices: Reverse Onus

• If an Unfair Labour Practice is alleged against an employer or a manager, the burden of proof is upon the employer to disprove the alleged violation
• For this reason, it is crucial that the employer paper every action and statement carefully.


Obtaining Information about Employee Desires

• Lines of communication between Employer and Employees should be kept open
• Employers should be aware of what the Union is offering
• Accordingly, ordinary lines of communication should be maintained, such as open door policies, suggestion boxes, etc. But never implement these in response to an organizing campaign (Remember, “Business as Usual”).


Altering Working Conditions

• Changes in terms and conditions of employment that occur during a union organizing campaign may also be subject to challenge by the union, unless the employer can demonstrate that the changes were made for valid business reasons and were previously anticipated


Employee Discipline During an Organizing Campaign

a) Discipline which is influenced by any “union considerations” will constitute an Unfair Labour Practice.
b) Any hint of “anti-union animus” or anti- union considerations will render discipline invalid and may be considered an Unfair Labour Practice;
c) Legitimate and normal discipline is permitted;
d) Management should follow a normal “progressive disciplinary” route (warning>suspension>discharge)
e) There should be no deviation from progressive discipline unless the employee conduct is severe;
f) All disciplinary action should be confirmed by writing and approved by the Human Resources Department, and no disciplinary action should be taken without approval of the Human Resources Department and consultation with legal counsel.


Other Important Issues

• Ensure compliance with all provincial statutes, as Union will be looking for any way the employer has “slipped up”
• Use reference checks – it is not uncommon for a Union to “plant” an organizer in the facility
• Keep all aspects of the employer’s response strategy to the organizing campaign confidential. Direct all communication to legal counsel in order to benefit from solicitor-client privilege.

Questions? Contact John to discuss your management-side legal needs.

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