Canadian HR Reporter

CANADIAN HR REPORTER December 14, 2015 14 FEATURES LABOUR RELATIONS Do's and don'ts when facing a union-organizing drive By Rick Dunlop I t's not the kind of news most employers want to hear — employees are unhappy and a movement is afoot to formally organize. Effectively addressing a union-organizing drive is one of the most difficult tasks an employer will face. But before panic sets in, there are several factors to consider in crafting a response. Know your rights e organizing union, the em- ployees (regardless of whether they support unionization) and the employer have rights. The union and employees have a right to unionize a workplace — labour relations legislation contains nu- merous complex rules and regula- tions that protect this right. Employers also enjoy the fun- damental right to express an opin- ion on the potential unionization of the workplace, as long as they do not coerce, intimidate or use undue influence in the expression of such opinions. Employers will be most effec- tive in addressing an organizing campaign if they exercise this right in a thoughtful way and thereby avoid any unfair labour practice complaint or finding. Understand employees In order for an employer to thoughtfully and effectively communicate with employees regarding unionization, it must first understand the reason why employees have even considered unionization. Every organizing campaign is different, but issues often range from dissatisfaction with compensation and benefits, poor management, rapid change as a result of new management and job security concerns. It is surprising how often a small issue that could have been easily addressed results in an or- ganizing campaign. But once an employer determines the reason why employees are unhappy, it can craft an effective strategy. Train supervisors First-line supervisors are an em- ployer's most important resource in avoiding and responding to an organizing campaign: •First-line supervisors who presumably interact with the employees on a consistent basis should have "intelligence" as to employee dissatisfaction, which is the root cause of most organiz- ing campaigns. If the supervisors lack such intelligence, that may be reflective of poor first-line supervision which, in turn, may be the reason for the organizing campaign. •First-line supervisors who have the respect of their subor- dinates are likely in the best po- sition to have a thoughtful and meaningful discussion regarding the merits of unionization with them. However, supervisors must be adequately trained so they do not say anything that will result in an unfair labour practice and they must have the confidence to engage in a meaningful discussion regarding unionization. Unfortunately, employers often turn their minds to training first- line supervisors about such issues after they learn about an organiz- ing campaign, not before. Be clear, respectful For the employer's message to be effective, it must be simple (with- out insulting the employees' intel- ligence), accurate, respectful and, above all, speak to the employees' issues. e employer should rec- ognize the potential ineffective- ness (or consequences) associated with the use of stock employer phrases. ese phrases may be true, but they have to be applicable and communicated in a meaningful way. ere are also two types of mes- sages employers should consider using more often: First, the less-tangible aspects of unionization that will likely of- fend many employees' intuitive sense of fairness should be com- municated in a thoughtful way: •Seniority: Employees should understand that seniority plays a central role in most unionized workplaces and it often means the most talented or hardwork- ing employee will not necessarily be granted a promotion or new job that pays more. •Bureaucratic: Unionized work- places have a tendency to be more bureaucratic because em- ployers have to apply the rules contained in the collective agree- ment, as opposed to what may be fair in the situation. Second, although not always appropriate, an employer may want to admit to employees it recognizes its weaknesses, but wants to work with them to ad- dress these weaknesses. Follow- through is vital if the employer chooses to convey this message. Consider communications Marshall McLuhan's famous say- ing "e medium is the message" applies to communicating to em- ployees regarding unionization. The most effective medium is face-to-face (or the more pejora- tive term "captive audience meet- ings") but it has to be done at a time and in a manner that does not result in an unfair labour practice. In today's social media world, communicating old school via a flyer, letter or memorandum may seem dated and out of touch so communicating with employees via social media may be a more effective way to communicate. But employers should recognize social media is a medium it can quickly lose control of and if the employer is not used to commu- nicating this way, such a strategy could backfire. Use different strategies •Pre-certification application: e sooner the employer learns about the organizing campaign, the better. For example, if it learns about the campaign be- fore it receives an application for certification, it will have the flexibility to alter terms and conditions of employment to address any concerns. e em- ployer will also be in a position to communicate to the employ- ees the significance of becoming a union member and how such union membership will be the basis upon which the union will, at the very least, be able to file a certification application. Learning about an organizing campaign at the pre-application stage is particularly important in Manitoba, New Brunswick, Prince Edward Island and Que- bec because there is no auto- matic representation vote — the number of employees in the bargaining unit who are union members will most likely deter- mine the application's success. •Post-certification application: If an employer learns about the organizing drive after receiv- ing the certification application in the jurisdictions that have an automatic representation vote (British Columbia, Alberta, Sas- katchewan, Ontario, Nova Scotia and Newfoundland and Labra- dor), it will have to act quickly to communicate its message in a manner that does not result in an unfair labour practice. e mes- sage at the "pre-vote" stage will be different than the message at the "pre-application" stage. Seek a legal expert e implementation of an effec- tive response to an organizing campaign will be difficult without the assistance and guidance of an experienced management-side labour lawyer who will be able to guide an employer through the applicable jurisdiction's nuances. Rick Dunlop is a partner at Stew- art McKelvey in Halifax. He can be reached at (902) 420-3384 or rdun- lop@stewartmckelvey.com. HR Manager's Guide to Employment Files and Information Management: Legislation and Best Practices uniquely addresses the management of all types of employee information throughout the employment lifecycle, from recruitment to termination. Employment information and documentation management carries legal requirements that protect an organization from litigation, and are essential to the creation of sound policies for efficient, effective, and ethical business practices. Easy to read and understand, this new guide provides Human Resources professionals and others who deal with employee files, either electronically or in paper format, with: • Key legislation and emerging case law • Best practices in the areas of privacy, records retention, human resources information systems (HRIS), and information security • Practical guidance, tools and templates, such as sample policies • Information on all Canadian jurisdictions Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986618-65203 $70 Softcover approx. 100 pages April 2015 978-0-7798-6618-2 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00228VC-A49657-E98871 New Publication HR Manager's Guide to Employment Files and Information Management: Legislation and Best Practices A Canadian HR Reporter Special Report Howard A. Levitt, B.A., LL.B., and Tanya Neitzert, B.A., CHRP Brought to you by: REUTERS/Ben Nelms

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