A union’s right to represent its members and an employee’s right to decide whether or not to join a bargaining unit are protected under the Ontario Labour Relations Act (the “Act”). Employers must navigate unionization campaigns carefully, as attempting to interfere with the process can lead to complaints of unfair labour practices (ULPs) under sections 70 and 72 of the Act.

Here are some actions by employers that may be scrutinized by a labour board during a unionization campaign:

• Interrogating employees about their involvement in union activities.
• Monitoring employees who are part of the unionization effort.
• Watching the union’s communications with employees.
• Disciplining employees for engaging in or advocating for unionization.
• Punishing employees for participating in picket-line activities.
• Expressing anti-union preferences or disparaging unionization efforts.
• Intimidating employees to discourage unionization.

A labour board will examine whether the employer’s actions have harmed collective bargaining rights and whether they were motivated by anti-union animus (anti-union hostility). Employers can argue that their actions were based on legitimate business reasons, but this defence is not guaranteed to succeed, especially if the employer’s conduct negatively impacts collective bargaining rights.

Balancing Business Interests and Employee Rights

Employers have a right to manage their business and respond to employee misconduct. However, during a unionization campaign, every action an employer takes is under increased scrutiny. This means that employers need to be extra cautious in how they respond to misconduct or make business decisions.

To avoid ULP claims, employers should:

• Act proportionately in responding to misconduct.
• Consider less intrusive options before taking action.
• Consult legal counsel before making decisions that could impact unionization efforts.

Employers cannot use just any business reason to justify interference with collective bargaining rights. The business interest must be more than trivial—it must be compelling and exceptional to be considered legitimate.

Labour boards may accept certain managerial decisions even if they impact unionization rights, as long as they are genuinely motivated by business needs. However, if an employer’s actions go beyond what is considered normal management practices, a board may still impose sanctions for ULPs. For example, a board could impose penalties if an employer:

• Closes operations during a unionization campaign.
• Lays off employees during the process.
• Subcontracts work to avoid unionization.
• Relocates their plant.

Understanding the Statutory Freeze

Section 86 of the Act imposes a statutory freeze on employer decisions at two key stages:

• During the organization stage of unionization.
• During negotiations with the union.

During these periods, employers are prohibited from making unilateral changes to wages, working conditions, or any other employment terms without the union’s consent. This freeze ensures that employers cannot undermine the unionization process by altering conditions of employment.

Even legitimate business decisions cannot justify changes during these critical stages unless the union agrees. Employers must be extremely careful about altering wages, benefits, or working conditions during the statutory freeze period.

Key Takeaways for Employers

Employers facing a unionization campaign need to be aware of the heightened scrutiny their actions will face. Every decision, especially those affecting wages, working conditions, or employment terms, may be examined for potential ULPs. Consulting with legal professionals before making any decisions that could impact collective bargaining rights is crucial to avoiding sanctions.

For employers or employees involved in a unionization campaign, understanding these legal requirements is key to protecting rights and ensuring compliance with the Ontario Labour Relations Act.

Need a Labour Lawyer?

If your organization is facing a unionization campaign or potential complaints of unfair labour practices, consulting a skilled labour lawyer is critical. At Achkar Law, we provide legal representation to businesses and managers, helping them deal with complex unionization issues while protecting their legal rights.

Our team of experienced labour lawyers can assist with:

• Strategic legal advice during unionization campaigns.
• Defending against ULP complaints before the Ontario Labour Relations Board.
• Ensuring your business decisions comply with the Ontario Labour Relations Act.
• Minimizing legal risks while managing employee relations.

Don’t take chances with your organization’s future. Contact Achkar Law today to ensure your management team is fully prepared to handle labour relations issues. Let us help you protect your business while maintaining compliance with labour law.

Call Us Toll-Free: 1 (800) 771-7882
Email: [email protected]