Responding to Employee Unionization

Many Employers facing unionizing campaigns in the workplace often look for the best way to resist the campaign since it is typically their preference not to have a unionized workplace. Due to a rapidly changing situation involving unionization efforts and unfamiliarity with the process, it’s easy for an unprepared employer to land into an Ontario Labour Relations Board hearing for their conduct during the union organization process. As a result, many employers find themselves questioning the best manner of responding to employee unionization in their workplace. 

Under the Ontario Labour Relations Act, employers and anyone acting on their behalf are prohibited from participating in the union organizing and administration process. More specifically, employers cannot engage in acts of coercion, intimidation, threats, promises or undue influence against its employees who are trying to unionize. 

Can I monitor unionization campaigns in my business?

Employers are often faced with a lack of information from their employees and the potential union as organization efforts are taking place. When responding to employee unionization, a common response is to engage in monitoring of employees to strategize a response to the organizing campaign. Enhanced surveillance of unionizing employees would likely be considered an unfair labour practice. Employers should be mindful of the following

• Avoid any interactions that could be considered “interrogation” of unionizing employees. 
• Don’t follow or conduct surveillance of unionizing employees, either directly or indirectly
• Don’t conduct enhanced monitoring of the union that may be reaching out to employees. 

Instead, Employers should continue to monitor the normal operations of their businesses. An employer is entitled to enforce workplace policies and regulations during working hours. 

Can I Discipline Employees for Union organizing in my business?

Some Union organization activities may be disruptive in the workplace environment when employees may reach out to each other to gauge support for unionization. Some of these activities may be so disruptive that they attract more scrutiny from an employer. Employers shouldn’t discipline or dismiss employees for engaging in, asking questions about, or advocating for unionization. Any dismissals of employees during a union organization period will be treated with enhanced scrutiny and employers should seek competent legal advice before moving forward with a dismissal under these circumstances. 

However, this doesn’t mean that all discipline or dismissal is off the table when employees happen to be engaging in Union organizing. Employers are entitled to maintain safe and effective operation of the workplace during working hours and this includes requiring employees to complete their assigned workplace duties. Employees who are failing to meet their workplace obligations can be disciplined, but this should be well-documented to respond to any allegations of unfair labour practices. 

What am I allowed to say during the union organization period?

When responding to employee unionization, any statements from an employer during the organization period will be treated with scrutiny for undue influence, intimidation and coercion. It’s important that any statements keep the facts and avoid disparaging the union or its unionizing employees. The Labour Relations Act allows for employers to express their views on unionization in the workplace but employers should be careful not to make any promises or threats when doing so. 

Common topics when expressing an Employer’s preference to not have a union in the workplace include:

• Union dues
• Potential Strikes
• Comparison to similar employers who have unionized
• lack of individual employment contracts

If there are any publications from the Union about the Employer containing inaccurate information, an Employer can provide the correct facts, but it’s essential that any corrections don’t disparage the Union or its potential members. These comments should be documented as well. 

What Should I Avoid?

• Any claims that unionization will result in loss of business or job security
• Discussion of unionization at the time of awarding pay, bonuses or employee evaluations
• Holding meetings specifically to advocate against unionization in the workplace
• Promises of enhanced pay, bonuses or other benefits in exchange for voting against unionization

Overall, Employers should be mindful that employees have the right to unionize and leveraging power over the livelihoods of those employees to resist unionization risks a finding of Unfair Labour Practices at the Ontario Labour Relations Board. When dealing with difficult questions of what employers can and can’t do during a unionization campaign, it is important to retain effective legal counsel who can provide practical advice in response to changing circumstances.

Contact Us

If you are an employer facing a unionization campaign in your business, or an employee who believes your employer has engaged in Unfair Labour Practices, our team of experienced labour lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800)771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.