Special thanks to our summer student Brianna Grieff for contributing to this update.

With an uncertain economy amidst tariff concerns, Canadians continue to make bolder workforce demands. Although many workers have returned to pre-pandemic attitudes, notable union activity remains rampant across Canadian workforces. For example, over the past 18 months, Canada Post has faced ongoing negotiations and strike notices from the union that represents 55,000 postal workers. On July 5th, 10,000 LCBO employees walked off the job, demanding higher wages and improved benefits. Finally, the professors at McGill University’s Faculty of Law made headlines by striking for five weeks in support of their right to unionize.

Employers are justifiably concerned about the potential for increased union activity, which can cause significant disruptions to operations. There are many strategies employers can use to stay union free, but it requires treading carefully, as labour laws offer extensive protections to employees’ right to unionize. One wrong step by an employer can lead to penalties, fines, and automatic union certification.

Understanding how quickly the 3-step certification process unfolds

The certification process formalizes the collective bargaining relationship. And, understanding how this process works and appreciating how quickly it can move forward is essential for developing an effective union avoidance strategy.

The process for certification in Ontario involves three steps:

1. The Organizing Drive

First, the union will try to keep the organizing drive a secret. During this period, the union will typically attempt to gauge employee interest by having union representatives approach them at the workplace, typically while they are coming to or leaving work, as well as online. Union representatives will talk to employees about any issues they may have with the workplace and share the union’s contact information with them. Union organizing drives usually involve signing up employees as union members and collecting union membership cards. One way that unions target employers for a union drive is by obtaining the names, contact information, and/or home addresses of the employees of a certain workforce, which they use to send them propaganda.

Employers can be unaware that a union organizing drive is occurring until weeks or months after it commences. It is important for management to have reliable sources in the workforce to advise them when a union drive is happening. Timing is critical here.

2. The Application for Certification

Once the union has garnered enough support (signed membership cards from at least 40% of the workers), it will formally apply for certification with the Ontario Labour Relations Board. Once an application is filed, employers should receive a copy of it on the same day. The application will include:

• A written description of the proposed bargaining unit that the union seeks to represent; and
• The estimated number of individuals in the unit.

Employers have just two business days to file a response, which can include, among other things, a different bargaining unit description or a different number of employees in the proposed bargaining unit. Employers may dispute the scope of the proposed bargaining unit on the basis that the description is too broad, contrary to the physical or administrative structure of the employer, or puts employees together that have vastly different skills. Experienced legal counsel can provide strategic support for these employee status disputes. Notably, once a union files an application for certification, an employer cannot alter the terms and conditions of employment.

The Board will then hold a hearing to determine the appropriate voting constituency to be used for a representation vote based on the descriptions proposed by the union and the employer.

3. The Certification Vote

If the union can demonstrate that they have the support of at least 40% of the employees in the bargaining unit on the day the certification application is filed, the Board will set a date for a representation vote.

The representation vote will be held within five business days of the certification application. If over 50% of the employees who cast ballots vote to unionize, the union will be certified and become the workforce’s exclusive bargaining agent.

From the time when the representation vote is scheduled to the date of the vote, both the union and employer typically run vigorous campaigns. For the employer, this could involve holding voluntary meetings for management to listen to employee concerns and explain how those concerns will be addressed. This must be done very carefully to avoid an unfair labour practice complaint.

What Can Employers Do?

Unions typically get traction in a workforce when employees believe that:

• Working conditions are poor;
• They lack job security;
• Management does not respect them; and
• There is favouritism in the workplace.

Here are three practices that create an atmosphere where employees never feel they have to resort to a third-party to protect their welfare:

1. Create a Positive Working Environment

Employees want to feel like they are heard and valued. To do so, employers can ensure that a shared sense of purpose guides the workplace.

For example, a UN Report suggested that companies implementing Environmental, Social, and Governance principles can increase shareholder value and positively impact their reputation and brand. Moreover, various studies have shown that employees between the ages of 25-34 consider an employer’s “values” and ESG principles when considering job offers. Thus, employers should consider adopting policies prioritizing equity, diversity and inclusion.

Employers can also minimize the likelihood of a union drive by recognizing employee efforts, teamwork and company milestones. Employers can show appreciation for employees by providing monetary incentives, such as annual salary increases and bonuses, and ensuring competitive pay practices, or offering flexible working environments (e.g. remote working arrangements, flexible paid time off policies, mental health leaves, etc.).

2. Ensure Effective and Clear Internal Communication

Clear communication is critical to ensuring a good employment relationship. One of the primary marketing techniques unions use to cater to workforces is to convince employees that the union will ensure their voices are heard and that workplace issues will be effectively brought to the attention of employers through the union. To avoid creating an environment where this sounds attractive to employees, employers can take steps to ensure that their workplaces have an open-door policy and complaints are resolved in an impartial and timely manner. Employees should feel confident that their concerns will be heard and addressed.

Employees should clearly understand how complaints they raise or any disputes in the workplace will be managed and resolved. Moreover, they should also trust that their employer will handle conflicts in a fair, prompt, and impartial manner.

To that end, employers should draft and periodically review policies and procedures surrounding workplace dispute resolution, complaints, and investigations, ensuring that there are clear guidelines on timelines and communications for any complaints and investigations of workplace bullying, harassment, violence, or discrimination.

Employers should also ensure that employees have been trained on these policies, further to requirements under occupational health and safety laws.

3. Expose Employees to the Challenges Associated with Joining Unions

Finally, if and when a union drive occurs, and ideally before one occurs, employers should try to educate workers on the potential consequences of joining a union. For example, employees should understand that they will have to pay union dues, they might not necessarily get better working conditions with a union than those they currently enjoy, and that employee compensation would likely be driven by seniority rather than individual merit or productivity.

However, while employers can talk to employees about unions, they must refrain from making any communications that may be perceived as threatening, coercive, discriminatory, or preventing employees from making free and informed decisions with respect to union representation. Doing so violates provincial labour laws and may result in an unfair labour practice complaint, penalties, fines, or, rarely, automatic certification.

Key Takeaways

Unionization costs employers time and money. Union relationships are notoriously difficult to end once a union is successful in their certification application.

Unionization also makes workplace management very challenging. Employers’ hands are tied when seeking to reward top performers or disciplining poor ones. The Union can simply file a grievance if they disagree with discipline imposed on an employee, and responding to this can require legal counsel. Dismissing employees without cause is also very difficult in most unionized environments.

Furthermore, when it comes time to renegotiate a collective agreement, usually once every three to five years, an impasse during negotiations can lead to significant business disruptions or worse, strikes and lockouts. Collective agreement negotiations are time-consuming and add to the overhead of running a business. All of this to say: when a business is unionized, operating becomes much more expensive. And, in turn, the business becomes less competitive.

Here are some additional steps employers can take to stay union free:

• Work with counsel to prepare a five-day plan for management to follow in the event they learn union organizing is underway. Given the tight timelines at most provincial labour boards, once an application for certification is filed, there is very little time to react. Not having a plan in place for running a campaign is often the difference between success and failure. These plans contain draft messaging for the workforce that will inform them of the consequences of voting for a union, where and when to hold informational meetings, and the dos and don’ts of messaging which can lead to unfair labour practice complaints.
• Train management on how to appropriately respond to union organizing. This is critical. Improper messaging from management can be fatal to the employer and create liability. Without training, management is often unaware of how strict labour boards are with respect to unfair labour practices, and the serious repercussions for the employer if one is committed, including automatic certification.
• Take steps to keep the lines of communication between the workforce and management open, and ensure issues are dealt with in a fair and timely manner. As discussed, the goal is to foster an environment where employees don’t feel they need a union. In the long-term, this is the most cost effective and proactive way of preventing unionization.

For further support in this area, please contact your Baker McKenzie employment attorney. Our Toronto team has decades of experience with domestic and international labour relations. We frequently represent employers in industrial actions, designing and implementing programs and policies to maintain positive employee relations in non-union and unionized workplaces.