Positive Non Union
Environments
Keeping Employees Happy
Community Employee Relations – Part 1
Michael Weiler, Presenting
2013 BCSLA Conference
Whistler, BC on September 30, 2013
Agenda
• Opening Comments
• Two approaches to staying non union
• Certification under the Labour Relations Code
(“Code”)—a Primer
• Tips To Avoid Unionization
• Conclusion — Mike’s Top 5 Reasons Unions
Get Certified
• Q&A
First the good news…
Last May 29, 2013 Christie Clark’s Liberals
defeated the NDP in a stunning upset.
“On election day, voters focus[ed] not on the past, but on who
offers best hope for the future…”
“…the province … is still looking for a vision for the future,
focused on growth, prosperity and sounder management of
provincial finances.”
Vaughan Palmer, Vancouver Sun, on election of Christy Clark’s BC Liberals May 29, 2013
Now the bad news…
Why are these three gentlemen raising
their arms in joyful glee of victory?
“New union looks to grow membership in new
non-traditional sectors.” Globe and Mail, August 31, 2013
UNIFOR
• CAW and the CEP merged to form Unifor, a
union of over 300,000 members.
• Unifor is committed to not just maintaining its
membership levels but in actively pursuing
membership expansion.
• Unifor devotes 10% of its total revenue—that
10% amounts to $10 million—to organizing.
“A rising tide raises all boats…”
The rippling effect of this consolidation
will likely cause other unions in BC,
especially the BCGEU and HEU, to step
up their organizing efforts.
And the Liberal government signals mutual
interests with unions.
Sept 9 2013: Working with BC Fed Labour President Jim
Sinclair and BC Building Trades ED Tom Sigurdson – skills
training.
Premier’s June 10, 2013 directive upon appointment of new
Minister of Jobs, Tourism and Skills Training, and Minister
responsible for Labour:
“It will be essential that your Major
Investments Office continues to assist global
investors in taking their projects from an idea
to completion. And our government has
committed to working with our private sector
union partners to ensure our labour code
meets the needs of employees as well as those
who want to invest in our province.”
Staying non-union?
NOT everyone will WANT to stay non-union.
• Some employers find advantages to having a
union.
• Some invite more ‘Employer-friendly’ unions
such as CLAC to organize.
• Partially unionized operations can set
benchmarks that benefit non-union segments
of the operation.
Staying non-union?
For others, the goal is to create a positive work
environment that encourages employees to stay
non-union, where there is no third party
between you and your employees.
There are two basic approaches to staying
non-union:
#1 – THE STICK
Staying non-union #1 – THE STICK
“So, does
anyone else feel
that their needs
aren’t being
met?”
Two approaches to staying non-union
• The second approach is to anticipate why your
employees (or even a small group of your
employees) might want to join a union and
organize your workplace.
• Ask yourself, “If I worked for me, why would I
join a union and why would I not join a
union?”
#2—THE CARROT WITH A LITTLE BIT OF STICK…
“This
conversation’s
going nowhere
if you keep
injecting the
human factor.”
Two approaches to staying non-union
• If you can keep your employees glad to be
working in your operation where they are
properly rewarded for what they do; they
truly feel like part of a team; they feel they
are treated with respect while at the same
time recognizing that you must make hard
decisions then I think this approach not only
keeps the union out but it maximizes the best
asset you have…your workforce.
Certification under the Code—a Primer
Education as Motivation….
• Sometimes knowing how something bad
might happen assists in organizing your
workplace in such a way as to minimize the
risk that it will happen.
Certification under the Code—a Primer
• Union first signs up 45% of employees in an
appropriate bargaining unit
(NOTE: not the most appropriate unit—see Island
Medical Laboratories Ltd.)
• The union applies to the Labour Relations
Board (“LRB”) to become certified as the
exclusive bargaining agent.
• Most often you do not know about the sign
up.
Certification under the Code—a Primer
• However some unions tell you up front
they are organizing. Then certain
restrictions apply and if you take action
that is in any way tainted by anti-union
animus, you might be subject to an
Unfair Labour Practice complaint
(“UFLP”).
Certification under the Code—a Primer
• The LRB will order a vote that must be scheduled
within 10 days of the application for certification.
• An Investigating Officer (“IRO”) will conduct an
investigation, usually by phone and fax asking you
for payroll information. Then they prepare an
IRO Report that is used by the LRB to decide if the
application is in order and the vote should go
ahead. It will note whether the Union has the
requisite 45% support and will attach a “Tentative
Voters List”.
Certification under the Code—a Primer
• The LRB hearing is usually within 7 days.
• The LRB asks 3 questions: 1) Is it a union?
2) Is it an appropriate bargaining unit applied
for? And 3) Does the union have the requisite
45% support?
• And there may be any number of other
questions…
Certification under the Code—a Primer
• In almost all cases a vote will be conducted
(except if there is a really egregious UFLP in
which case LRB may order automatic remedial
certification).
• The vote then takes place and both the
employer and union have scrutineers who can
challenge ballots. Assuming there are no
challenges, the vote is usually counted right
there and then.
Certification under the Code—a Primer
• There is a “freeze” on terms and conditions of
employment both before and for 4 months
after the certification.
• If the Union is certified, the Employer has a
duty to bargain in good faith under s. 11 of
Code.
• Often an issue in bargaining about Union
access to employee confidential contact
information.
Certification under the Code—a Primer
• If no deal, then possible strike/lockout;
or first time arbitration under section 55.
• Potential essential services issues.
• And so on, and so on, and so on…
Tips To Avoid Unionization
1. Geographic location –different vulnerabilities
Tips To Avoid Unionization
2. Vulnerability of your various departments—
remember the Union only has to get 45% of the
employees in “an” appropriate bargaining unit;
not “the most” all employee bargaining unit.
Tips To Avoid Unionization
3. Hiring:
Tips To Avoid Unionization
3. Cont. Hiring:
• Reference checks
• What one may ask and what one should not
• Use of social media
Tips To Avoid Unionization
3. Cont. Hiring:
• Hiring handicapped persons - Government
producing a White Paper. Most are loyal and
become engaging for all employees; and you
demonstrate that you are a responsible employer.
Tips To Avoid Unionization
3. Cont. Hiring:
• Despite skill shortages and pressures of our
“just in time” society, be patient and get the
right employee. Listen to that little fellow on
your shoulder.
Tips To Avoid Unionization
3. Cont. Hiring:
• Have your well-drafted customized employment
agreement on hand. Make sure it complies with the
Employment Standards Act and is enforceable in all
other respects. USE IT with every new hire.
For example, this clause:
“Convergys may terminate your employment for cause, or by
providing you with notice, or pay in lieu of notice in accordance with
the Employment Standards Act of British Columbia.”
was challenged but UPHELD by the BCSC this year in
Miller v Convergys GMG Canada LP.
Tips To Avoid Unionization
3. Cont. Hiring:
• Absolutely imperative to carefully monitor
during the probation period.
• LPN’s now part of BCNU—where are RCA’s in
your organization?
Tips To Avoid Unionization
4. Manage your employees.
5. Firing—do it when you have to and be seen
as fair but firm; rely on your ironclad
employment agreement (see Hiring above).
6. Functional integration—consider not only
departments but other operations.
Tips To Avoid Unionization
7. Consider who you might want excluded from the
bargaining unit. Ensure managers are truly
managers and would be excluded under the
Code; similarly set up exclusions for confidential
positions and independent contractors.
8. Use of part timers
9. Youth
Tips To Avoid Unionization
10. Employees on “layoff” and other leaves of absences
11. Policy Manuals “Say what you mean and mean what
you say.”
12. How are your working conditions and wages and
benefits? Check out your competitors especially the
union ones.
13. Make sure your employees know about the benefits
and positive conditions that they already have.
Tips To Avoid Unionization
14.Develop strong communication links to your
employees. Pay attention to the suggestion box.
Be careful not only in what you say, but how you
say it…
Tips To Avoid Unionization
Tips To Avoid Unionization
15.Do you want some form of employee
committee as conduit? Regular operational
meetings. Good team building events.
16.Deal firmly with problems and problem
employees. Make the tough decisions.
But do it in a way that shows you are being
fair but firm, respectful, and consistent.
Tips To Avoid Unionization
17. Follow the laws—failing to do so is a very good basis
for unions to get their feet in the door. For example:
• non-compliance with Employment Standards Act
• failure to follow WCB—especially harassment and
bullying policies coming into force November 1st and
the potential for section 151 WC Act complaints
18. Try to get designation as “Best Employer” or other
similar accolades—allow employees to feel part of the
team and successful.
Tips To Avoid Unionization
19. Set up a relationship with your legal
advisors in advance. That is not just an ad but it
is a reality.
20. Network—the BCSLA and these types of
gatherings are perfect. Remember unions by
their very size “network” and know what is
going on—you should too.
Tips To Avoid Unionization
21. Manage change—everyone thinks the worst
and we don’t like change—and your business
especially will need to change to succeed.
22. “Be a leader, not a boss”.
My view: Top 5 reasons
Unions get certified
1. Wages and/or benefits.
2. Job security, especially if a ‘new broom’
arrives.
3. Disgruntled employees being disciplined or
fired, especially if spouse is in a union.
My view: Top 5 reasons
Unions get certified
4. Poor managers – managers of
businesses versus managers of people.
5. Environment and local culture-- eg
Nanaimo versus Abbotsford.
My view: Top 5 reasons
Unions get certified
But if it turns out your employees or some
of them unionize your workplace, don’t
feel bad. Even really good employers
encounter unions….
Thank you for coming!
Michael Weiler Employment + Labour Law
Mike Weiler*
Carolyn Weiler, admin
mweiler@htln.com
604-408-5628
cweiler@htln.com
604-408-5627
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