April 30, 2003

Responding to organizing drive

Dos and don’ts of responding to a union organization drive

Deciding how to respond to a union organization drive can be difficult. There are no hard and fast rules, and employers must be cautious to avoid becoming subjected to an unfair labour practice complaint.

In areas of doubt, legal counsel is strongly advised. Specific facts of a given situation may mean what is allowed in one circumstance may be unfair in another.

A plethora of employer conduct may result in a successful unfair labour practice complaint. The following are actions which should not be undertaken by the employer under any circumstances:

  • Do not engage in espionage, surveillance or "undercover" activities of any kind in order to determine who is and who is not participating in the union organizing drive.
  • Do not attend any union meetings or attempt to see who does or who does not attend them.
  • Do not hold "captive audience meetings." Any special meeting called by the employer for the purpose of giving its opinion should be done on a voluntary attendance basis and preferably outside of working hours
  • Do not question employees about union sentiments or the goings on of union meetings. If this information is volunteered, listen but do not ask questions to elicit additional information
  • Do not engage in any proposed disciplinary actions, alter any working conditions, including salary adjustments, promotions and changes in benefits, unless the proposed course of action is fully supportable by existing policies which have been consistently enforced in the past by the employer.
  • Do not say anything about potential discipline, discharge or other penalties including general economic sanctions in the event the union is certified.
  • Do not make promises of future benefits in the event the union is defeated.
  • Do not question job applicants about their union sentiments.
  • Do not threaten workers with discipline, discharge or other penalties for taking part in union activities or state there will be general economic reprisals if the union is successful, such as a plant shutdown.
  • Do not promise any future benefits in the event the union is eventually defeated. This includes such benefits as the availability of overtime and coffee breaks.
  • Do not give financial support or other assistance (such as legal advice, secretarial and photocopying) to any union or to employees who support or oppose a particular union. Any anti-union petitions must originate with workers and not management.
  • Do not announce the company will not deal with a union should it be certified in future.
  • Do not treat known union members or organizers differently from other staff. Rules, policies and practices must continue to be applied consistently.
  • Do not try to prevent employees from talking about the union on non-work time.
  • Do not impose an absolute ban on the distribution of union literature and solicitation of workers.
  • Do not force employees to remove union badges or buttons unless safety is an issue.

Management may take certain action in response to a union organization drive. Here are a few suggestions that will, in most circumstances, be permitted:

  • Discipline employees for proper reason, including dismissal, provided this is the normal course of business and not motivated whatsoever by the presence of the union organizing campaign. Because the onus is on the company to prove its "proper" motive, ensure proper corrective action procedures are followed, there is a full investigation and proper documentation and all discipline is applied consistently.
  • Listen to any union-related information that employees provide on their own and provide this information at once to the human resources department.
  • Enforce a non-solicitation rule on company premises and on company time.
  • Ensure all employees are aware of the time and location of any representation vote. This is important because the union need only obtain a majority of the votes cast, not the majority of employees in the bargaining unit. Ensure all employees are aware they may vote freely and in secret whether or not they have signed a union card.
  • Explain union certification procedures to employees or refer their questions to the board.
  • Discuss current remuneration, benefits and working conditions and compare them with union and non-union competitors.
  • Suggest that employees obtain a copy of the union’s constitution and bylaws.
  • If asked, point out the disadvantages of a union such as workers must pay initiation fees, union dues and other assessments which, in part, pay the salaries of full-time union executives. All future negotiations for salary, working conditions, and so on will no longer be on a one-to-one basis with the worker but rather collectively through the union. And, if the union calls a strike, then workers must obey the strike call and possibly suffer lost wages.
  • Point out that promises of the union are not guarantees.
  • Prohibit defamatory banners, slogans or statements about the company or its management.
  • Follow through on regularly scheduled pay increases or changes in benefits announced before the union organizing drive began

These are general tips in dealing with a union organizing drive which may not be appropriate in every circumstance. It is recommended that an employer consult with legal counsel in order to ensure they do not breach their legal obligations.

Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@israelfoulon.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today.

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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