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In this series we will cover some of the most important issues employers should know about dealing with unions in the workplace, including what to do when confronted with a union organizing campaign, a certification application, collective bargaining and more.

What employers need to know about union organizing drives.

In this installment, we will discuss what employers need to know in the event a union comes looking to represent your workforce.

Under the Ontario Labour Relations Act, 1995 (the “Act”) provincially regulated employees in Ontario have a right to organize and join a trade union (with limited exceptions). A union can apply to the Ontario Labour Relations Board to be certified as the bargaining agent for any group of unrepresented employees any time, as long as it has the necessary employee support.

So, what should you do if a union comes knocking?

First, don’t panic. Remember unionization isn’t automatic just because a union shows up at your door. Not all workers want to be represented by a union.

Second, it’s important to understand what the union organizer can and cannot do and what you, as the employer, can and cannot do.

What can the trade union do and not do during a union organizing drive?

During a union organizing drive, a union organizer is permitted to speak with your employees during non-work hours, off company property, about joining the union.

The union organizer cannot coerce or harass your employees into joining a union. They also cannot, without management’s permission, come onto the company’s private property. If a union comes onto your property without permission, you are within your rights to politely ask them to leave. If they refuse, you can call the police and inform them that the union organizer is trespassing.

Note: in the construction sector, the job site is not considered to be private property and therefore, you usually cannot require the union organizer to leave. However, you can direct the union organizer not to interrupt workers and to contact them only during non-work times.

What can the employer DO during a union organizing drive?

During an organizing drive, an employer can, among other things:

  • Insist that no union solicitation or discussions (whether in favour of the union or opposed to it) take place during working hours;
  • Insist that there be no distribution of union literature on company property or during working hours provided that the same restriction is applied to the distribution of any non-work-related literature or materials;
  • Remove posters or signs that have been posted on company property without permission. Employees can distribute materials to each other during non-working time, but this does not give them a right to post it on company property;
  • Continue to manage the workplace fairly and consistently in accordance with company policy without regard to union support or opposition on the part of any employee;
  • Inform employees of their rights, including that they do not have to talk to the union organizer (including at work, at home or on the phone), attend union meetings, or give the union their personal information if they do not want to;
  • Inform employees that, under the law, if the union is certified, it will represent all employees in the bargaining unit, including those who are not union members. This means, among other things, that all employees in the unit will have to pay union dues under a collective agreement; and
  • Inform employees that the trade union cannot guarantee anything. If certified, the union only have the right to negotiate with the employer; it cannot unilaterally impose terms and/or make the employer give more than they are willing and able to do.

What can an employer NOT do?

During an organizing drive, an employer cannot, among other things:

  • Harass, pressure, threaten, suspend, fire, reprise or otherwise unduly influence an employee seeking to be a union member or who is otherwise exercising their rights under the Act;
  • Threaten to close the facility or reduce operations if a union is certified;
  • Interrogate employees about internal union affairs, such as union meetings, etc.;
  • Attend union meetings, or watch meeting room entrances to identify or record which employees attended;
  • Make promises to employees in an attempt to influence employees not to join the union;
  • Prohibit employees from discussing the union during breaks or meal periods, even in working areas, provided that such discussions do not interfere with work or business operations and do not otherwise become unruly;
  • Impose a contractual term that prevents them or otherwise restrains their ability to become a member of a trade union or exercising their rights under the Act;
  • Provide financial or other support to a union; and/or
  • Participate in or interfere with the formation, selection or administration of a trade union

Note: if an employer is found to have engaged in any of the above prohibited activities, the union may be automatically certified. We will discuss what it means if a union is certified in our next installment of the labour law basic series.

If a union is soliciting your employees, the best practice is to contact your legal counsel and discuss tactics regarding appropriate communications with your employees and next steps.

If you have questions about any union related issues in your workplace, please contact any member of Siskinds’ Labour Law team.

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