In depth

Understanding how quickly the 3-step certification process unfolds

The certification process formalizes the collective bargaining relationship. Understanding how this process works and appreciating how quickly it can move forward is essential for developing an effective union avoidance strategy.

Generally speaking, the process for certification in Ontario involves three steps:

1. The organizing drive

In this first step, to the extent possible, the union will try to keep the organizing drive a secret. During this period, the union will typically attempt to gauge employee interest by having union representatives approach them inside or outside the workplace, as well as online, talking to them about any issues they may have with the workplace, and sharing union information with them. Most union organizing campaigns involve signing up employees as union members and collecting union membership cards. One way that unions target employers for a union drive is by obtaining the names, contact information, and/or home addresses of the employees of a certain workforce, which they use to send them propaganda.

Employers are often unaware that this step is occurring even though a union organizing drive can last for months (or, in some cases, even longer). It is important for management to have reliable sources in the workforce to advise them when a union drive is happening. Timing is critical here.

2. The application for certification

Once the union has garnered enough support (signed membership cards from at least 40% of the workers), it will formally apply for certification with the Ontario Labor Relations Board. Once an application is filed, employers should receive a copy of it on the same day. The application will include:

• A written description of the proposed bargaining unit that the union seeks to represent.
• An estimate of the number of individuals in the unit.

Employers have just two business days to file a response, which can include, among other things, a different bargaining unit description or a different number of employees in the proposed bargaining unit. As far as the bargaining unit scope goes, the employer may disagree on the basis that the description is too broad, contrary to the physical or administrative structure of the employer, or puts employees together who have vastly different skills. Experienced legal counsel can provide strategic support for these employee status disputes. Notably, once an application for certification has been made, an employer cannot alter the terms and conditions of employment.

Next, the Board will hold a hearing to determine the appropriate voting constituency to be used for a representation vote based on the descriptions proposed by the union and the employer.

3. The certification vote

If the union shows the support of at least 40% of the employees in the bargaining unit on the day the application is filed, the Board will set a date for a representation vote.

The representation vote will be held within five business days of the application for certification. If over 50% of the employees who cast ballots vote to unionize, the union will be certified and become the workforce's exclusive bargaining agent.

During the time between when the representation vote is scheduled and the date it happens, both the union and employer usually run vigorous campaigns. For the employer, this could involve holding meetings at which management can listen to employee concerns and explain how they will be addressed (a process that must be done with great care in order to avoid an unfair labor practice complaint). Management typically also provides the benefits of staying union-free and the potential downside of having a union.

What Can Employers Do?

Unions typically get traction in a workforce when employees believe that:

• Working conditions are poor.
• They lack job security.
• Management does not respect them.
• There is favoritism in the workplace.

Here are four practices that create an atmosphere where employees never feel they have to resort to a third-party to protect their welfare:

1. Create a positive working environment

Employees want to feel like they are heard and valued. To do so, employers can ensure that a shared sense of purpose guides the workplace.

For example, a UN Report suggested that companies implementing Environmental, Social, and Governance principles can increase shareholder value and positively impact their reputation and brand. Moreover, various studies have shown that employees between the ages of 25-34 consider an employer's "values" and ESG principles when considering job offers. Therefore, employers should consider adopting policies prioritizing equity, diversity, and inclusion.

Employers can also minimize the likelihood of a union drive by recognizing employee efforts, teamwork, and company milestones. Employers can show appreciation for employees by providing monetary incentives, such as annual salary increases, bonuses, ensuring competitive pay practices, or offering flexible working environments (e.g., working from home arrangements, four-day work-week arrangements, flexible paid time off policies, etc.).

2. Ensure effective and clear internal communication

Clear communication is critical to ensuring a good relationship between the employer and employee. One of the main marketing techniques unions use to cater to workforces is to convince employees that the union will ensure their voices are heard and that workplace issues will be effectively brought to the attention of employers and addressed promptly. To avoid creating an environment where this sounds attractive to employees, so much so that they're willing to pay union dues to get it, employers can take steps to ensure that their workplaces have an open-door policy and complaints are resolved in an impartial and timely manner. Employees should feel confident that their concerns will be heard and addressed.

Further, consider adopting clear guidelines on how to disseminate information on policy and procedure changes before they are enacted. This will prevent employees from feeling ambushed or shocked by any changes.

3. Promote transparency and fairness

Employees should clearly understand how to resolve disputes using existing company procedures. Moreover, they should also trust that their employers will handle conflicts appropriately, fairly, and promptly. To facilitate such a process, ensure that the workplace has clear policies and procedures for dispute resolution and that management is appropriately trained to resolve such issues, including harassment, bullying, discrimination, etc. Consider refresher training on these policies and available channels for redress.

4. Expose employees to the challenges associated with joining unions

Finally, if and when a union drive occurs, employers should try to educate workers on the potential repercussions of joining a union. For example, employees should understand that they will have to pay union dues and that employee compensation will be driven by seniority rather than individual productivity. Generally, in a unionized workforce, bad workers thrive, and good workers suffer.

However, while employers can talk to employees about unions, they must refrain from making any communications that may be perceived as threatening, coercive, discriminatory, or may prevent employees from making free and informed decisions with respect to union representation. Doing so violates provincial labor laws and may result in penalties, fines, and automatic certification.

 Key takeaways

For many employers, union organization is a big problem. For some, it's fatal.

Being organized increases costs and makes the workforce more challenging to manage. Employers' hands are tied when seeking to reward top performers or disciplining poor ones. Disciplinary issues become a nightmare to deal with because employees can file grievances for the most insignificant disciplinary issues, which require involving legal counsel and hearings. Terminating employees without cause is practically impossible in most unionized environments. When it comes time to renegotiate a collective agreement, usually once every three years, an impasse during negotiations could lead to significant business disruptions caused by strikes and lockouts. These negotiations are often very time-consuming and add to the overhead of running a business. All of this to say, when a business is unionized, operating becomes much more expensive. And in turn, the business becomes less competitive.

The two ways a business can avoid unionization are (1) run a campaign during a union drive and defend legal claims from the union with respect to employees' voting status, unfair labor practices, etc., and (2) maintain an environment in which employees don't want to unionize. Obviously, option two is much less costly and risky.

Here are some additional steps employers can take to stay union-free:

• Work with counsel to prepare a five-day plan for management to follow in the event they learn union organizing is underway. Given the tight timelines at most provincial labor boards, once an application for certification is filed, there is very little time to react. Not having a plan in place for running a campaign is often the difference between success and failure. These plans contain draft messaging for the workforce to convince them against voting for a union, where and when to hold meetings, and the dos and don'ts of messaging, which can lead to unfair labor practice complaints.
• Train management on how to appropriately respond to whiffs of union organizing. This is critical. Oftentimes, workforces will become unionized because a manager says or does the wrong thing (e.g., "you will be fired if you vote for the union"). Without training, management employees are often not aware of how strict labor boards are with respect to unfair labor practices and the serious repercussions for the employer if one is committed.
• Take steps to keep the lines of communication between the workforce and management open and ensure issues are dealt with in a fair and timely manner. As discussed above, the goal of this is to foster an environment where employees don't feel they need a union. In the long term, this is the most cost-effective way of preventing unionization.

For further support in this area, please contact your Baker McKenzie employment attorney. Our Toronto team has decades of experience with domestic and international labor relations. We frequently represent employers in industrial actions, designing and implementing programs and policies to maintain positive employee relations in non-union and unionized workplaces.