In 2001 the newly elected Liberal government introduced two significant changes to the Labour Relations Code. First, employer free speech was broadened to allow employers to communicate more openly with their employees. Second, a secret ballot vote was required in all but the most exceptional cases. Prior to that time, unions were able to certify an employer automatically without a vote by simply signing up 55% of the employees. The impact of these two changes has been fairly significant. Union organizing and density, especially in the private sector, has been greatly diminished. Nevertheless, employers should not be lulled into a sense of security that a union will not show up on their doorstep. We have recently seen an increase in union organizing which should cause all employers, especially small and medium-sized businesses, to pause and reflect.
We recently assisted two employers in union certification applications. In both cases we were able to successfully assist our clients to implement communication and other strategies that, within the legal confines of the Code, effectively re-established the relationship between the employer and the employees. In both cases the certification application was defeated – in one case the employees voted 100% against the union.
The additional costs of running a unionized operation are significant. If a union certification application is filed an employer has very little time to respond as the Code requires that the certification hearing and vote take place within 10 days of the application being filed. Once an application is filed it requires significant commitment and teamwork by management and counsel to implement a strategy that is responsive to the union certification application but at the same time is legally permissible under the Code. Although most cases will be determined by a secret ballot vote of employees, the Labour Relations Board will order automatic remedial certification without a vote if employers commit egregious unfair labour practices. Once a union is certified, the employer can no longer deal directly with the employees but must recognize the union as the exclusive bargaining agent.
This introduction of a third party into the relationship can not only be expensive in terms of the costs associated with collective bargaining, the administration of a collective agreement and the potential for a strike, but also often creates a divisive “us vs. them” culture within the workplace.
We recommend that employers consider what, if any, changes need to be made to their workplace to minimize the chance that a union will obtain a certification before such an application is made. Taking such an audit of your business also serves a very practical purpose – running an efficient business requires a motivated workforce that operates as a team. That is the best antidote to a union organizing campaign. If an application is filed, management needs to quickly mobilize to respond in an effective and legal way in the hopes of winning that all important certification vote.