How to meet the challenges of unionizing a workplace

By LegalMatters Staff • Unionizing a workplace can have its benefits but it’s important to follow the proper procedures to ensure success, says Toronto employment lawyer Jeffrey M. Andrew.

Whether the workforce is big or small, the first decision to be made is whether to join an existing union or strike out alone, says Andrew, co-managing partner with Cavalluzzo LLP

“Establishing your own union is not as easy as some think,” he tells LegalMattersCanada.ca. “You need a group of like-minded people. The process can be quite technical if you have no experience. In the absence of legal advice, it can be quite complicated and full of pitfalls.” 

Autonomy has a price

Creating a grassroots union may offer the attraction of determining what rules to follow and how the organization will function. However, Andrew says autonomy comes with a price. 

Perhaps the biggest hurdles for those who chose to start a union is creating a written constitution – an absolute must – and taking to proper steps to legally found the union, he says.

“The constitution is technical. A key element, but not the only one, is that it has to set as one purpose of the union the regulation of the employment relationship,” Andrew says. “Typically, you’ll want legal advice to set up the constitution which costs money. You also have to have a founding meeting where it can be approved.”

Once a constitution is set, the work of organizing a union can offer more challenges, including how to recruit members and technical issues such as what to include on membership cards, he says, adding there are also financial considerations.

“Unless you have a large workplace the cost of organizing could be quite steep,” says Andrew.

In many cases, he says, it makes more sense to join an existing organization.

“An established union will have experienced staff on hand. They are aware of the process and they can help people unionize,” says Andrew. “For most, it is probably more cost effective and expedient.”

Same organizing rules

He says the organizing rules remain the same for a start-up or an existing union.

“For non-construction workers in Ontario’s provincial jurisdiction (not federally regulated), the union needs cards or signatures from at least 40 per cent of the bargaining unit that it wants to represent if the board thinks it is appropriate,” Andrew says. “That gets you the ability to file an application for certification which seeks a union representation vote supervised by the Ontario Labour Relations Board.”

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In the federal sector, such as banks, airlines, railways, the Canada Industrial Relations Board can order a vote if at least 35% of the employees in the appropriate bargaining unit sign on, and if more than 50% do, it can certify the union without a vote,” he says.

Andrew says organizers have the right to approach employees about joining the union, but recruitment cannot interfere with normal work responsibilities.

He says it’s also important to be respectful of other people’s feelings during a recruitment drive.

‘Listen to what people say’

“You have to be polite. You have to listen to what people say,” Andrew says. “In the same way that it is against the law to threaten or punish someone for wishing to join a union, it is equally against the law to punish or threaten someone because they don’t.”

He notes that an established union may have an advantage when it comes to recruiting since they can give “advice on how to approach people and how to react to somebody if they are not interested.”

“Essentially union organizers can help people do it properly,” says Andrew.

While many employers may not appreciate the fact that there is a union drive happening in their workplace, workers cannot be penalized for organizing, he says.

“Legally speaking it is against the law to punish or discriminate against someone because they have indicated a willingness to be unionized,” Andrew says. “Smart employers will act professionally. They know that it is dangerous to retaliate because they could find themselves before the labour board. 

“Established unions will not tolerate when people inside the workplace are trying to organize and are being sanctioned. Unions will defend them vigorously,” he adds.

In exceptional cases the employer may agree to voluntarily recognize the union for the bargaining unit without a vote or board application, Andrew says.

Simple majority needed

In a vote, a simple majority of more than 50 per cent is needed and only those who vote have a say in the outcome, he says. Those who abstain are not counted in the final tally.

“Everybody in the bargaining unit gets to vote, whether they supported the union or not,” Andrew says.

If the union is certified, every non-managerial worker in the bargaining unit is represented exclusively by the union – even if they voted against it – and get the same benefits and protections as those who supported it, he says.

Once established, a majority of members retain the option of applying to the labour board to terminate the union’s bargaining rights, says Andrew.

“If a union gets out of touch with the membership or does things that they generally don’t like or members don’t think they are being properly represented it can happen,” he says. “Sometimes it means workers no longer want to be unionized or it can mean they found another union that they think will do a better job.”

This is part two of a two-part series on unions. In part one, Jeffrey M. Andrew discusses how being unionized can have a big impact on job satisfaction.