Voluntary Recognition

Voluntary recognition occurs where an employer agrees that a trade union may represent its employees without requiring the trade union to become certified. There may be circumstances where voluntary recognition of the trade union by the employer makes good business sense, but such occasions are rare. Legal advice should be obtained before deciding to voluntarily recognize a union.

Polling and Card Checks

In Canada it would be an unfair labour practice for an employer to attempt to ascertain whether the union has the support of the majority of the employees. Each Canadian jurisdiction leaves that task exclusively to the Labour Relations Board within the jurisdiction. Employers are therefore prevented from asking an employee if they support the union or will vote in favour of the union.

Any vote held to determine the wishes of the majority can only be conducted by the Labour Relations Board.

Employer Communication

Employers are free to communicate with their employees during the currency of a union organizing campaign. However, there are limits to what an employer can say during an organizing campaign, and it is wise to seek the advice of experienced counsel before communicating with employees during an organizing drive.

Simply put, the employer cannot threaten, intimidate or coerce employees, make promises to employees or exert any undue influence on the employees' right to choose. For example, captive audience meetings may be found to be an unfair labour practice. Threatening to close the plant in the event of unionization is definitely an unfair labour practice, as is promising to give every employee a raise if they vote against the union.

In some Canadian jurisdictions, if the effect of the employer's unfair labour practice is to make it unlikely that the voluntary wishes of the employee can be known through a vote, the Labour Relations Board has the jurisdiction to automatically certify the union. In Ontario, the Labour Relations Board has such jurisdiction but more often takes other measures short of automatic certification such as ordering that a second representation vote take place, if an unfair labour practice has affected the outcome of the first vote.

Employers should be aware of the remedial powers that are available to the Labour Relations Board in its jurisdiction. Understanding the remedial powers of the Labour Relations Board helps to understand the risks the employer faces if it responds inappropriately to a union organizing campaign.

As stated above, employers are not entirely precluded from communicating with their employees during an organizing campaign. Statements which may legitimately be made by an employer during an organizing campaign include the fact that:

• The employer would prefer not to be unionized.
• Employees have the right to join or not to join the union, and the right to make that choice free from intimidation, coercion or threats from anyone, including the union.
• By law the employer is precluded from making any promises, so employees should not construe silence as a lack of interest by the employer.
• The union is free to make promises, and employees should carefully consider whether the promises are realistic.
• Collective bargaining involves the agreement of both parties; a promise made by the union requires the employer to agree in bargaining before it is a promise kept.;
• The trade union cannot guarantee job security, only a healthy, productive and profitable plant will provide job security.;
• If a trade union is certified it means that the employer can no longer directly and individually deal with employees concerning the terms of their employment;
• Trade union certification means the employee must pay union dues whether or not he or she is a member of the union.;
• In jurisdictions where certification can be based solely upon valid signed union membership cards, that signing a union card may not entitle the employee to a secret ballot vote.

The nature of the message will vary depending upon what stage of the process you are at and whether there is a risk that the union can be certified without a vote if sufficient evidence of membership (usually 55% or more) has been filed with the Labour Relations Board.

If an application for certification is already filed, the employer's message will be different than during an organizing campaign. If the application has already been filed, the employer will want to advise employees that they should vote, and encourage as many employees to vote as possible. Only those employees who vote influence the outcome of the vote. Historically, employers tend to win more votes than trade unions where voter turnout is high, so encouraging voter turnout is critical. Since any employer communication will receive critical scrutiny from the trade union, especially if the trade has had trouble organizing the employees, the content of the message should be reviewed by legal counsel.

Appropriate Bargaining Units

Every Labour Relations Board in Canada has the broad discretion to determine what bargaining unit would be appropriate for collective bargaining. Recent trends reveal that bargaining units are broader and more inclusive than ever before. Broader bargaining units are created to prevent the fragmentation that smaller, or multiple, bargaining units may create.

The Labour Relations legislation in each Canadian jurisdiction excludes managerial personnel and persons employed in a confidential capacity with respect to labour relations, from the bargaining unit. When determining if someone should be excluded from the bargaining unit, the quantity and quality of that individual's managerial or confidential functions will be examined. The rationale for excluding managerial or "confidential" employees is that their presence in the bargaining unit may place them in a conflict between their duty to the employer and their duty to the union.

The Labour Relations Board is charged with resolving disputes concerning an employee's status as a manager or "confidential" employee.

During collective bargaining, neither party may press the issue of including (or excluding) a manager or "confidential" employee from the bargaining unit to impasse; the legislation is clear that managerial and "confidential" employees are de facto excluded from the bargaining unit.

Other issues which may need to be addressed when determining the appropriate bargaining unit include whether an employee is employed part-time or full-time, whether an individual is a casual or regular employee, and whether these employees are even properly members of the same bargaining unit. Questions as to whether these same individuals are entitled to vote in a certification application may also arise.