So your employees have started a union drive. Here’s what you can and cannot say or do

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Let them know that unions bring strikes and that every week lost to a strike requires the union to obtain an extra two per cent in wages just to make up for that absence from work. A five-week strike represents a 10 per cent wage loss. What is the chance that loss will ever be recouped?

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Ask them if they know what their union dues will be, or how much the union executives are earning — and how organizing your company benefits those executives.

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Ask if the union has assessments (in addition to dues) to support other causes, such as strikes at other companies it represents or political activism that has nothing to do with their own interests.

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Ask them to ask the union to put their many promises into a written contract or guarantee.

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Ask if they have seen the union’s constitution and know what restrictions it creates.

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Ask if the union managed to obtain the same wages it is promising them for all of its member employees, and remind them that the union will only be able to obtain wages that you agree to provide through negotiations.

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If the union promised job security, you can point out any layoffs that the union’s members have suffered, while saying nothing to suggest there could be layoffs if the union is certified or that being unionized creates any greater chance of a layoff (that would be an unfair labour practice).

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Remind them that they lose the ability to negotiate any individual terms of employment going forward.

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You can also advise them of some legal realities. For example, unionized employees cannot hire a lawyer and sue for wrongful dismissal. There is also no such thing as a constructive dismissal case in the unionized world.

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Whereas non-union employees can sue for wrongful dismissal if they are laid off, unionized employees can be laid off as long as it is in order of seniority. That is a major disadvantage for the employee of any company that needs to downsize.

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More significantly, a unionized employee has no control over their own grievance — unlike a non-union employee who can sue. Unions have the legal right, with very limited restrictions, to negotiate one grievance away in favour of another one, or decide that a grievance is not worth the union’s money to take to arbitration.

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Even if an employee is fired, the union may not take the case — or, if it does, it can settle it for an amount of its choice, even against the employee’s objection. Suggest that your employees ask what percentage of the union’s grievances get taken to arbitration.

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Remind your employees that if the union decides to strike, they will have little recourse if they do not wish to participate and will lose their wages for the period of the strike (and strike pay provides minimal compensation).

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You might invite them to speak to any unionized friends and colleagues.

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Many unionized employees are angry — not necessarily at their employer, and maybe not even at their union, but at their plight. A plight that has led many to the blinding realization that they have far fewer rights than their non-unionized peers.

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The reality check

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Unionization is not a legal problem. It is a leadership failure. By the time the cards are signed, culture is already lost, trust already broken and management authority gone. The real question is not, “How do we fight a union?” It is “Why would our employees ever need one?”

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Answer that last question honestly and you will remain union-free.

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Good employers do not defeat unions. They make them irrelevant.

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Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario and Alberta, and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.

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