In our last post, we gave an overview of the union certification process, talked about why employees might choose to join unions and some signs of union organizing that employers should watch for. In this post, we will discuss what employers can and cannot do during an organizing campaign.
(1) What an Employer Cannot Do
Many employers believe that they must stay neutral during a union organizing drive and that they cannot talk to employees about the union. The reality is that an employer does not lose the right to communicate with its employees just because an organizing drive is occurring. In fact, artificial paralysis during an organizing campaign may actually drive employees toward the union when they sense their employer will not or cannot react to their concerns.
Yet, while an employer can participate, there are limits. An employer who crosses these limits is said to have committed an “unfair labour practice”. A finding of an unfair labour practice can result in fines or other penalties that make it easier for the union to win certification.
The line between participation and an unfair labour practice is a difficult one to draw. Until you receive professional guidance, a good rule of thumb to avoid major pitfalls is not to “SPIT”. Employers should not:
- S Employers are not allowed to engage in surveillance or other intrusive activities to monitor the organizing campaign. For example, employers cannot follow possible union supporters to determine where they go after work.
- P An employer is prohibited from offering beneficial treatment (such as higher wages) to an employee in exchange for the employee engaging in “anti-union” action. This includes both direct promises to pay as well as more subtle abuses.
- I An employer cannot interrogate their employees as to whether or not they support union activity or how they intend to vote. Interrogations do not need to be direct. An interrogation can range from seemingly innocent questions about how many people attended a publicly announced union meeting to why the employee believes a union is necessary.
- T Threats are the opposite of promises. Threats are statements (explicit or veiled) by an employer to one or more employees that convey some form of detriment to the employee – commonly discharge or business closure. Something as subtle as declining to comment when asked about a possible closure in the face of unionization could be considered a threat.
It is important to remember that each of the above are contextual. While there are some actions that are clearly off-side, the majority of the time, the situation will not be quite so clear.
(2) What an Employer Can Do
Given the above, it is no surprise that employers would want to tread carefully in their discussions with employees during a union certification drive. However, it is important to keep the lines of communication open.
There are a number of things that employers can say to employees that would not constitute an unfair labour practice. Employers can:
- Communicate its position to employees. An employer can state that it feels a union is not needed at the workplace or that employees may not be well-served by having a union represent them; however, an employer must be very careful that any such statements are not coercive or threatening.
- Correct any inaccurate statements made by union representatives to employees. For example, employers can tell employees that they are not required to support the union, sign a membership card, vote in favour of the union, or even speak to union representatives.
- Explain the disadvantages of union membership. Disadvantages would include requirements to pay union dues and the risk of strikes if collective bargaining reaches an impasse. If the employer knows particular facts about the union, which should be verifiable through independent sources, the employer can share those with employees.
- Explain that the bargaining process may not result in the benefits promised by the union. All of the terms of employment must be negotiated. Therefore, wages, schedules and other conditions of employment may stay the same, increase or even decrease as a result of collective bargaining.
- Expect “Business as Usual”. Employers are entitled to expect business as usual at their workplace, which includes enforcing applicable standards of conduct, prohibiting union activity on company time, and prohibiting professional organizers from trespassing on company property.