Canadian HR Strategy

10 Executive Series Digest hrreporter.com U nder the various jurisdictions in Canada, unions have to co- ordinate organizing drives in an eff ort to convince employees in a bargaining unit to sign membership cards. epending on the jurisdiction, getting enough cards signed may lead directly to certifi - cate or to a vote. Either way, if the union is ultimately successful with its organizing campaign, it will achieve the exclusive right to bargain on behalf of the employees in the unit and to represent them. Employers that are non-union would prefer not to have to start dealing with a union. But the law sets parameters around just how far the employer may go in order to encourage employees who are being targeted by union-organizing eff orts to resist the union. In particular, there are legal restrictions around an employer's free speech, both in respect of signing union membership cards in the fi rst place and in voting no to the union in the event of a representation vote. 3 stages to an employer's defence ere are two stages to an employer's defence against union organiz- ing, plus a third stage if a representation vote is required. Employers spend considerable time and energy on the second and third stages, but o en forget the fi rst — which is when they o en can be most ef- fective and face the least resistance and scrutiny. Stage one: at fi rst stage is the wide-open freedom that non-union employers take for granted, which is all of the time before a union even appears on the scene. e best defence against union organiz- ing is through eff ective human resources management. Non-union employers should focus on developing sound and reasonable poli- cies, competitive wages and benefi ts, and excellent communication with their employees. Non-union employers should have a clear and consistent corrective action plan to sensibly deal with disciplinary issues of poor performance, inappropriate behaviour, and bad at- tendance. Some of the harshest critics of a lenient and inconsistent employer are other employees, who have to put up with the conse- quences of sub-standard behaviour, performance and attendance on a day-to-day basis. Communications should be regular and in various forms, includ- ing face-to-face meetings — both in small groups and company- wide — using focus groups to consider particular issues, and ongo- ing use of newsletters, intranet, emails, tweets, Facebook, and any other forms of connecting with employees. It is also extremely benefi cial to have a complaint and suggestions system employees can use to challenge decisions, and provide input, without fear of reprisal from the employer. To be eff ective, this feed- back system should be simple, clear and fairly administered. In other words, employees who use the system have to be successful, at least some of the time, and they must never suff er any negative conse- quences as a result of using the system. Stage two: e second stage is when the card-signing drive begins, or at least when it becomes apparent to the employer an organizing campaign is underway. Campaigns can be like icebergs — much of it may take place under the surface and by the time the employer real- izes the union is organizing, it may be too late. Usually, there is still time and an employer may still have infl uence. Certainly, the em- ployer should try to get its message out. e law generally supports free speech. An employer can be open that it does not want a union. Comparisons may be drawn with other unionized workplaces that have not been successful. An employer should point out that union dues will be withdrawn from an em- ployee's pay and are not covered by the employer. It also should be pointed out that all employees will be represented by the union, such that you cannot opt out and you will still have to pay dues. In other words, employees who oppose the union should be motivated to speak with their co-workers and make their views known. Finally, an employer should be clear that a union can make promises, but it can- not deliver on those promises except through collective bargaining with the employer. at is, the employer would have to agree before the union can have any success at all. What an employer cannot do is to threaten, intimidate or coerce employees. In particular, an employer cannot expressly or implicitly tie future job security to the success or failure of the union campaign. An employer has to be careful with discipline and especially with dis- charge so any such decisions are completely objective and cannot be challenged as reprisals against union supporters. At this point, it may be too late to fi x compensation issues, as that may be viewed as coercive. It can also backfi re if wage or benefi ts im- provements are made and the union is successful, as it will certainly demand even more during the course of bargaining. Stage three: e third stage is the fi nal frantic campaign before a rep- resentation vote is held. An employer has two principal objectives: First, to get as many employees as possible out to vote and, second, to convince employees to vote no to the union, whether or not they signed a union membership card. Generally, the higher the voter turnout, the better chance the employer has of winning. An employer has almost no restraints on encouraging a high voter turnout, explaining the voting process and making clear that all votes are secret. Employers do well to encourage employees to think carefully about their voting decision, to consult with family members, friends, and co-workers, and to not feel con- strained in any way by any card or other commitment that may have been made to the union before the vote. e good news for employers is they have considerable freedom to speak directly and at length to employees about the benefi ts of remaining non-union. e best time to start communicating is long before any union shows up on your doorstep. Jamie Knight is a partner at Filion Wakely orup Angeletti in To- ronto. He can be reached at (416) 408-5509, jknight@fi lion.on.ca or visit www.fi lion.on.ca for more information. WHAT YOU CAN DO IF A UNION COMES KNOCKING By Jamie Knight LABOUR RELATIONS

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