Unionization Campaigns: How Can an Employer Play its Role Without Running Afoul of The Labour Code Commandments?

Introduction

The opening of a union certification campaign has significant impacts that will have long-term effects in a business, regardless of the outcome. The employer will now have an obligation to recognize the union that is certified as the sole representative of the employees covered by the bargaining unit, and so recognition establishes the framework for the employer’s relationship with employees. The employer may not attempt to obstruct the union’s actions, and so its right of communication will now be limited and it will have to use caution in addressing any subject that might relate to employees’ conditions of employment.

During that period, the employer will also have to make major decisions about the list of employees covered by the certification, exclusions, and the description of the bargaining unit.

The purpose of this presentation is to provide you with an overview of the major issues that arise for an employer in relation to the various things to be done in the context of a unionization campaign and the best practices to follow in that situation.

I. Stage 1: Campaign to sign up members

i. The law that applies to collective labour relations

a) Employees’ rights and restrictions on employees’ activities

Rights

The Canadian Charter¹ and the Quebec Charter² both guarantee freedom of association as a fundamental freedom of every individual. That right has been defined by the courts as covering “a wide range of associations or organizations of a political, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued”.³ A few years later, the courts expanded the definition to include protection for the collective pursuit of common goals,⁴ including individuals exercising their lawful rights in association. Freedom of association therefore covers not just individual activities engaged in collectively, but also the associational activities themselves.⁵

In addition to the Charters, the Labour Code⁶ also recognizes employees’ right of association, when it states: “Every employee has the right to belong to the association of employees of his choice, and to participate in the formation, activities and management of such association.”⁷

Restrictions

To protect the continuity of the business’s operations, the Labour Code prohibits all employees from soliciting another employee to join a union during working hours,⁸ which do not include breaks or meal periods, whether or not they are paid.⁹ An employee who violates that rule will give the employer “good and sufficient cause” for suspension.¹⁰

The same objective is the reason why an association of employees must not hold any meeting of its members at the place of employment during the union certification process¹¹ unless it has obtained the consent of the employer. The term “meeting” means meeting by any method, such as official, unofficial, de facto or spontaneous meetings.¹²

Penalties

In the event that an employee or association of employees violates sections 5 and 6 of the Labour Code, they are guilty of an offence and liable to a fine of $100 to $500 for a first offence and $1,000 to $5,000 for any subsequent conviction.¹³

b) Employers’ rights and restrictions on employers’ activities

Rights

The counterpart of freedom of association, for the employer, is freedom of expression. That freedom is also recognized by the Canadian Charter¹⁴ and the Quebec Charter¹⁵ as a fundamental freedom. The courts have held that any expression intended to convey a meaning, in any form, is covered by that guarantee.¹⁶

Restrictions

Because of employees’ right of association and their extremely vulnerable legal situation, and the significant economic power the employer has over them,¹⁷ the Labour Code imposes certain restrictions on the employer. The Code prohibits any employer or their representative from interfering in an association of employees by prohibiting them from seeking to dominate, hinder or finance the formation or the activities of any such association, or to participate therein.¹⁸ It also provides that they shall not “use intimidation or threats to induce anyone to become, refrain from becoming or cease to be a member of an association of employees…”.¹⁹ An employer is therefore not entitled to interfere in union activities, particularly since it is not considered to be an “interested party” for the purposes of determining the representative nature of the union.

Because of these restrictions, the employer or its representatives must exercise great caution in their communications with employees. In spite of the restrictions, however, it is impossible for the underlying philosophy of the Labour Code to support a claim that an employer must never express a view on an offer for its employees to join an association of employees, as was stated in Disque Améric.²⁰ What is the narrow path that an employer that wants to exercise its constitutional right of free expression may legally take, in the context of an effort to unionize its business?²¹ According to that case, an employer would be lawfully exercising its right of expression when, making no promises or threats, directly or indirectly, it engages in what may be polemic speech, but speech that is not extreme or dishonest and that essentially addresses the reasoning rather than the emotions of the interlocutors or readers, who must be free to receive the message or not.²²

That case held that what an employer may say to its employees, orally or in writing, to express its opposition to unionizing must, in a normal situation, meet the following criteria if it is to fall within its right to free expression, under the law, rather than constituting interference in the right of association:²³

1. It must not make any threat, directly or indirectly;
2. It must not make any promise, directly or indirectly, to induce the employees to adopt its views;
3. What it says must be defensible as being true;
4. It must address the individuals’ thinking and not play on their emotions;
5. Its interlocutors must be free to listen to or receive its message, or not;
6. In some respects, it must not use its authority as employer in any way to promote its anti-unionization opintions.²⁴

Content of the message conveyed

In an employer-employee relations context, communications between the two entities are likely to cover a variety of subjects. The employer is most at risk of engaging in interference, and thus of violating section 12 of the Labour Code, in the content of the message conveyed. That is why decision-makers will examine the consequences of the message for union representation in detail.²⁵

The main subjects that have been recognized as not violating employees’ right of association are: setting out the business’s conditions of employment,²⁶ making employees feel that their future in the business is safe by addressing the union membership drive neutrally;²⁷ announcing payment of a bonus when the plan to give the bonus had been under consideration for some time;²⁸ and reading sections of the Labour Code, particularly those sections that address employees’ rights, including the right of association.²⁹ These are the communications most likely to be accepted by decision makers.

The main subjects that have been recognized as violating employees’ right of association are: pointing to how well the business is running while taking an anti-union position;³⁰ explaining to employees how to resign from the union;³¹ threatening to close the business;³² and threatening disciplinary action.³³

Regardless of the content conveyed, decision-makers will assess the evidence of the employer’s intent to seek to hinder the union, to determine guilt.

Methods of conveying the message

Employers have various methods available to them for communicating with their employees.

One of the principal methods used is face-to-face contact, by holding assemblies, convening meetings, and so on. Meetings outside working hours have been considered to be legal, since employees have the ability to leave if they wish.³⁴ Meetings that take place during working hours have been held to be illegal, since the employer in that case is able to compel employees to participate.³⁵ Meeting held in the workplace that are not unusual tend to be accepted by the courts.³⁶

In addition to meetings, distributing a videocassette presenting the business’s financial position was considered not to violate section 12 of the Labour Code.

As well, sending a letter to employees’ homes that contained an anti-union message, as long as the opinion was supported, has also been considered to be legal, since the employees are not obliged to read it and can simply throw it out.³⁷

Identity of the person conveying the message

In the context of the certification process, the employer or its representatives may need to address employees directly.

Whether the communications come from the business’s senior managers or from the employer, decision-makers rarely rule as to the effects the source of the message has on the communication, and often simply do not identify the source.

However, it would certainly be possible to lead evidence that the employee’s freedom to hear or read the message conveyed may be influenced by the importance of the position in the business held by the person conveying the message.³⁸ It can therefore be stated that the more senior a position that person holds in the business, the more the person must measure their words and show restraint.³⁹

The final restriction is that the employer may not reveal an employee’s membership in an association of employees to anyone during the certification process.⁴⁰ The employer must therefore treat union memberships with discretion, since it is bound by confidentiality. Employees alone may waive that protection.⁴¹

Penalties

An employer who violates section 12 or section 13 of the Labour Code is guilty of an offence and liable to a fine of $100 to $1,000 for each day or fraction of a day during which the offence continues.⁴² In addition, an employer who violates section 13 of the Labour Code can be subject to a complaint of unfair labour practices, and thus have an order made against it by the Commission des relation du Travail (C.R.T.), such as⁴³ an order to cease performing, not perform or perform an act in order to be in compliance with the Code, an order to redress any act made in contravention of the Code, and so on.

ii. Best practices

a) Choosing what view to take

An employer facing a first unionizing drive among its members has to consider its options quickly, having regard to the fact that it might have to negotiate a collective agreement with the bargaining agent very soon.

In general, unions take a very dim view of any kind of investigation into the identity of members and of any form of communication directed to employees by the employer concerning the wisdom of joining the union.

The employer must therefore weigh and assess the real value to it of defeating the unionization effort, and its chances of success. Some useful information may be relevant to that decision. For example, statements made by employees to their superior, at their own initiative, and questions about certain legal issues, are useful information.

The kind of business, profit margins, competition in the market and the identity of the union itself are just as important in the decision the employer has to make as to whether or not to communicate its views to the employees.

b) Communications plan: coordinating what is done by representatives of the employer

Few managers are familiar with the basic rules of conduct to follow when a unionizing drive is underway. In fact, in many cases, it is difficult for a frontline manager to keep their emotions in check during the period coinciding with the announcement of a unionization campaign.

In this situation, an employer will do well to take a systematic approach to communications directed to employees. Some employers will refer all questions or requests from employees, whether they are sympathetic or opposed to the union movement, to a specialized labour relations service. A member of the Barreau or the Ordre des conseillers en gestion des ressources humaines agréés will often be able to play an effective role here. Other employers will distribute a document to their managers, and even directly to employees in the bargaining unit, that contains questions and answers dealing with the terms of the Labour Code relating to an employee’s right to choose whether or not to join the union, the effects of signing a membership card, the mechanisms for paying union dues, and so on.

II. Stage 2: Petition for certification

i. Applicable law

a) No change to conditions of employment

From the filing of a petition for certification, no employer may change the conditions of employment of its employees without the written consent of each petitioning association and, where such is the case, certified association.⁴⁴ The employer is subject to that obligation until the right to lock out or strike is exercised or an arbitration award is handed down.⁴⁵

The rule generally recognized by the courts in this regard is that conditions of employment are frozen. That rule means that the employer is required to maintain the conditions of employment in effect and abide by the firm commitments it may have made or revoked concerning adjustment to certain conditions of employment.

On this point, Robert Choquette, writing as adjudicator, stated that the opinion in the case law is unanimous or virtually unanimous that the freeze on conditions of employment in section 59 of the Labour Code is relative, and is described as a “business as usual” approach that does not completely suspend the management right in that the employer may continue to manage its business in accordance with its existing policies, and may make the changes that are usual and necessary to its operation. In short, he wrote, the employer may continue to administer its business in the usual manner during the period covered by section 59, as long as it can justify its decisions in a reasonable way, the objective of the Code being to prevent the employer from using changes to the conditions of employment to try to discourage employees from exercising the right of association or the right to freely negotiate their collective agreement.⁴⁶

b) List of employees

Under section 25 of the Labour Code, once the petition for accreditation has been filed with the Commission des relations du travail, the employer must, within five days after the petition is received, post, in a conspicuous place, the complete list of the employees of the business concerned by the petition, indicating the function of each employee. The list must be kept posted until the date on which the petition is granted or refused. The employer must also send a copy of the list forthwith to the petitioning association and place a copy at the disposal of the labour relations officer seized of the petition.

This stage is crucial for the employer since it is how the representative nature of the petitioning association is determined.

The employer must first decide which employees’ names should not be included in the list of employees on the ground that they are its representatives and not mere employees. Section 1 of the Labour Code excludes from the definition of employee “a person who, in the opinion of the Commission, is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees”. For employees to be removed from the list, they must, for example, have disciplinary authority over employees, have the power to evaluate, hire and fire, and attend management meetings and have real power to manage the employment of the employees.⁴⁶

A second category of employees may also be removed from the list: non-active employees (employees absent on the filing date) or casual employees who will not be working imminently. Whether an employee will be working imminently is determined having regard to all of the facts that are relevant to the employee’s work. Some labour relations officers have developed an empirical rule referred to as the 7/13 rule to determine the eligibility of casual employees,⁴⁷ which involves ascertaining whether the employee worked at least seven of the thirteen weeks preceding the filing of the petition for certification.⁴⁸ We can therefore deduce that employees who were at work less than 7/13 of the time are casual employees who are not be working again imminently, and so are not or are no longer employees.⁴⁹

c) Bargaining unit

At this stage, the employer has to decide whether it agrees with the association’s description of the bargaining unit. The employer’s decision may have major repercussions, since the association’s petition will be automatically refused if it covers fewer than 35% of the employees.

On the other hand, agreement between the parties on the bargaining unit is a factor that promotes a degree of industrial peace⁵⁰ since in that case, the certification officer need not consider whether the unit is appropriate.⁵¹ An association that covers an absolute majority of employees will automatically be entitled to certification, while an association that covers between 35% and 50% of the employees will have to be put to a vote to ensure that it is representative.⁵²

In the event of disagreement on the bargaining unit, the employer will have to explain the reasons why it disagrees, in writing, and propose the unit it thinks suitable to the labour relations officer.⁵³ In that case, the Commission des relation de travail, which will ultimately hear the matter, need not consider whether the unit in question is the most suitable, but only whether it is suitable.⁵⁴ The main criteria on which the employer and the officer must base their decisions as to what unit is suitable include the territorial or geographic division of the business, the mobility of the work force and/or of work, industrial peace, common interests (similarity in terms of the work and positions, wages and other remuneration, conditions of employment, occupations and qualifications, interdependence and interchangeability of the positions, transferability and promotion, etc.)⁵⁵ An employer who fails or refuses to communicate the reasons for its disagreement and propose the unit it thinks suitable within 15 days of receipt of a copy of the petition for certification will be deemed to have agreed to the bargaining unit.⁵⁶

ii. Best practices

a) No change to conditions of employment

The employer must not downgrade employees’ conditions of employment after a petition for certification is filed.

As a general rule, the right strategy to adopt during bargaining is not to grant new wage increases other than those agreed to prior to the filing of the petition for certification. That way, the employer will create a situation that will encourage the union to negotiate an agreement on the first collective agreement.

b) List of employees

The employer is allowed a very short time (five days) to file its list of employees.

It is essential that the time be used to ensure the exclusion of employees who are representatives of the employer. In many cases, these exclusions have a decisive influence on the subsequent handling of the group of unionized workers and on the application of the collective agreement.

In some cases, it will be wise to extend the list of employees by adding employees who are on sick leave, replacement workers, new hires and casual workers. If their names are accepted, they will then be included in the total number of employees in calculating the union’s majority.

It may be useful to adhere to a few rules for convenience in how the list is presented. Alphabetical order is often best for employees in the same occupation or with the same status, to simplify the investigation to be done by the labour relations officer.

Where there is disagreement concerning certain employees or certain groups of employees, the labour relations officer will have to determine whether the disagreement has an impact on the union’s majority. Where the union has the necessary majority in any event, the officer may certify the union and refer the issue of the disputed employees to the labour relations commissioner.

c) Bargaining unit

A pragmatic approach is definitely also best in this instance, since the employer has to assess its chances of success in having the bargaining unit it is asking for adopted.

In this regard, it may be useful to fall back on the classic bargaining units.

For example, a unit covering all employees is always valid, in view of the text of section 21 of the Labour Code. As well, in the manufacturing sector, a distinction between office employees and production employees is often considered appropriate. To a lesser degree, a distinction for research and development units may succeed in some cases.

III. Conclusion

The employer’s reaction to a unionization campaign is definitely an important point in the labour relations history of a business. As we have shown, it is therefore essential that the employer pay proportionately significant attention to all related activities, and that it demonstrate professionalism and concern for relations with the potential bargaining agent in the medium and long term.

We hope these remarks will heighten your awareness of the issues so you will know how to respond when the time comes.

¹ Section 2(d), Canadian Charter (Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c 11).
² Section 3, Charter of Human Rights and Freedoms, CQLR c C-12.
³ Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.
⁴ Lavigne v. Ontario Public Service Employees Union, [1991] 2 SCR 211.
⁵ Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 SCR 391.
⁶ Labour Code, CQLR c C-27.
⁷ Section 3, Labour Code, CQLR c C-27.
⁸ Section 5, Labour Code, CQLR c C-27.
⁹ Mitchell v. Serabjit-Singh, (1949) T.T. 294.
¹⁰ Allaire v. Cie Paquet inc., (1972) T.T. 162.
¹¹ Section 6, Labour Code, CQLR c C-27.
¹² Meilleur v. Syndicat des employés de Gaz Métropolitain inc. (CSN), (1973) T.T. 380.
¹³ Section 144, Labour Code, CQLR c C-27.
¹⁴ Section 2(b), Canadian Charter (Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c 11).
¹⁵ Section 3, Charter of Human Rights and Freedoms, CQLR c C-12.
¹⁶ Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927.
¹⁷ Syndicat canadien des communications, de l’énergie et du papier, section locale 194 v. Disque Améric inc., D.T.E. 96T-835 (T.T.).
¹⁸ Section 12, Labour Code, CQLR c C-27.
¹⁹ Section 13, Labour Code, CQLR c C-27.
²⁰ Syndicat canadien des communications, de l’énergie et du papier, section locale 194 v. Disque Améric inc., D.T.E. 96T-835 (T.T.).
²¹ ibid.
²² ibid.
²³ ibid.
²⁴ ibid.
²⁵ Joëlle RIVET-SABOURIN, Le droit de communication de l’employeur dans les rapports collectifs du travail, Éditions Yvon Blais, 2012, p. 36.
²⁶ Syndicat des travailleuses et travailleurs Dans un jardin v. Gagnon, D.T.E. 97T-23 (T.T.).
²⁷ ibid.
²⁸ Syndicat canadien des communications, de l’énergie et du papier, section locale 194 v. Disque Améric inc., D.T.E. 96T-835 (T.T.).
²⁹ Syndicat des travailleuses et travailleurs Dans un jardin v. Gagnon, D.T.E. 97T-23 (T.T.).
³⁰ Syndicat canadien des communications, de l’énergie et du papier, section locale 194 v. Disque Améric inc., D.T.E. 96T-835 (T.T.).
³¹ Syndicat de la fonction publique, section locale 3894 et Ste-Anne-des-Lacs (Municipalité de), D.T.E. 2001T-68 (C.T.).
³² Association des employés de Hebdo Litho et 173438 Canada inc., D.T.E.99T-691 (C.T.).
³³ Travailleuses et travailleurs unis de l’alimentation et du commerce, section locale 501 et Compagnie Wal-Mart du Canada, D.T.E. 2004T-1128 (C.R.T.).
³⁴ Syndicat des travailleuses et travailleurs Dans un jardin v. Gagnon, D.T.E. 97T-23 (T.T.).
³⁵ Syndicat canadien des communications, de l’énergie et du papier, section locale 194 v. Disque Améric inc., D.T.E. 96T-835 (T.T.).
³⁶ Syndicat des travailleuses et travailleurs Dans un jardin v. Gagnon, D.T.E. 97T-23 (T.T.).
³⁷ Syndicat canadien des communications, de l’énergie et du papier, section locale 194 v. Disque Améric inc., D.T.E. 96T-835 (T.T.).
³⁸ Syndicat des employées et employés de soutien de l’Université Concordia et Université Concordia, D.T.E. 2007T-777 (C.R.T.).
³⁹ Joëlle RIVET-SABOURIN, Le droit de communication de l’employeur dans les rapports collectifs du travail, Éditions Yvon Blais, 2012
⁴⁰ Section 36, Labour Code, CQLR c C-27.
⁴¹ Bureau en gros (Business Depot) v. Travailleuses et travailleurs unis de l’alimentation et du commerce, section locale 500, D.T.E. 2002T-20 (T.T.).
⁴² Section 143, Labour Code, CQLR c C-27.
⁴³ Sections 118 and 119, Labour Code, CQLR c C-27.
⁴⁴ Section 59, Labour Code, CQLR c C-27.
⁴⁵ ibid.
⁴⁶ Travailleuses et travailleurs de l’alimentation et du commerce, section locale 501 et Walmart Canada (St-Hyacinthe), D.T.E. 2010 T-797
⁴⁷ Syndicat des travailleuses et travailleurs de Lumi-O – CSN v. Lumi-O International inc., 2013 QCCRT 78.

⁴⁸ Syndicat des travailleurs de la mine Noranda (CSN) v. Noranda Mines Limited et Les métallurgistes unis d’Amérique, section locale 4278, [1979] T.T.
⁴⁹ Robert P. GAGNON, Le droit du travail du Québec, 5th edition, Éditions Yvon Blais, Cowansville, 2003, p. 324.
⁵⁰ Syndicat des travailleurs et travailleuses du centre d’accueil Anne-Le-Seigneur, CEQ, v. Syndicat des employés et employées du service Bétournay CSN et Centre d’accueil Anne-Le-Seigneur, (1990) T.T.
⁵¹ Pavillon des Jeunes inc. v. Union des employés de service local 298 (FTQ), (1979) T.T. 266.
⁵² Association des professionnels non enseignants du Québec v. Association des professionnels de l’orientation du Québec, (1975) T.T. 158.
⁵³ Sections 21 and 28(b), Labour Code, CQLR c C-27.
⁵⁴ Section 28(c), Labour Code, CQLR c C-27.
⁵⁵ Travailleuses et travailleurs unis de l’alimentation et du commerce, section locale 500 v. Marché Port-Royal inc., D.T.E. 2009T-504 (C.R.T.).
⁵⁶ Syndicat national des employés de Sicard (CSN) v. Association internationale des travailleurs de métal en feuilles, (1965) R.D.T. 353 (C.R.T.).
⁵⁷ Section 28(c), Labour Code, CQLR c C-27.