Howard Levitt: Unionized workers have fewer rights — here’s how to dismantle your union

Few unions negotiate severance approximating what members would have been entitled to if they hadn’t been unionized.

Unionized employees are angry. Not at their employers and not always at their unions, but at their plight. A plight which has led to the blinding realization that they have far fewer rights than their non-unionized peers.

The pandemic has driven that home with intensifying ferocity. Unionized employees have no right to claim wrongful dismissal or constructive dismissal. If they are ultimately terminated, their severance is governed by the minimal provisions of employment standards legislation, a fraction of what a court would provide. Some unions negotiate greater severance but few in this country negotiate anything approximating what their members would have been entitled to if they had not been unionized.

And, perhaps worst of all, even if they have a perfectly legal case, the union may decide not to take it. And that decision can seldom be successfully challenged as unions are legally viewed as inexpert bodies entitled to make mistakes. They are also legally entitled to consider whether the cost of a particular arbitration, in money and time, is in the interest of their overall membership and, as such, can refuse to take undeniably meritorious cases. Furthermore, the chance of the labour relations board overturning a union’s decision not to pursue a case is infinitesimal, even though it has the technical ability to do so.

Worse yet, if the union refuses to take a “good” case, the employee still cannot hire a lawyer or otherwise take the case forward themselves either to an arbitrator or to the courts.

I have received many calls and letters from unionized employees lately, responding to this column and on my Bell Media radio network talk show, complaining and asking about the options available to them.

There is an answer. Last week, I acted for an employer whose union was decertified — effectively employees choosing to get rid of their union. I have been involved in about 30 such decertifications, probably more than any other lawyer in this country, sometimes on behalf of employees, but usually on behalf of the employer. Many management labour lawyers actually discourage decertifications. After all, every decertification ends a lifetime stream of revenue for that lawyer, in future arbitration and labour negotiation fees.

They plead that it’s too difficult to accomplish. But it’s not.

So, for those employees wishing to terminate their union’s bargaining rights, here is your manual.

The first and most important point to note is that decertification must be initiated by the represented employees, not by the employer. If there is evidence that the employer initiated or facilitated a decertification application, that application will fail. The most that employers can do, if asked by employees about how to decertify their union, is to direct them to contact a lawyer or, depending upon the province, the Law Society Referral Service, which refers lawyers at minimal cost for a consultation. That lawyer, in turn, will direct the employees from that point forward, avoiding the suggestion — which the union will be quick to assert — of management involvement.

Once armed with what to do, the employees must circulate a petition among coworkers. That petition must be circulated by a member of the bargaining unit in question and cannot be by someone who is managerial or, say, the owner’s nephew, to avoid the argument of management involvement in its initiation or circulation. To avoid any inference that management is tacitly supporting it, that petition must be circulated outside of working hours and not on company property.

It is similar, in that respect, to union organizing drives which are surreptitiously conducted away from the property to avoid employer detection. Strategically, you want to circulate it first to the employees most likely to sign to avoid the union learning of it. Once the union gets involved, it will begin its campaign to discourage signatures, by promises as to what it will negotiate “the next time” (why had it not already obtained that might be asked) and attempt to frighten employees by suggesting what the employer will do once employees no longer have union protection.

Petitions cannot be circulated at any time. They are only permissible in the “open period” at the end of the collective agreement or at the end of its first three years in most provinces if it’s longer than three years. By way of example, federally regulated employees can decertify in the last three months of the collective agreement and provincially regulated employees in Ontario, in its last two months.

The petition will be worded in a manner such as, “We the undersigned employees of X Limited, no longer wish to be represented by Y union.”

Under that, in columns, will be the employees’ names, signatures, date and time and a witness to each signature. It is important that there be no management names among the signatures, only members of the bargaining unit. When the requisite number of employees in the bargaining unit sign, 50 per cent in many provinces, the petition will be submitted to the applicable Labour Relations Board.

At that point, the Board will confirm whether the requisite number of employees have signed, (just like in a union certification application) and, if so, call a board supervised vote. My vote last week was electronic and virtual in light of COVID-19. If the majority of the employees who vote (not total employees), vote to decertify, that will be the end of that union. Management is allowed to appoint a scrutineer for the vote. During the voting period, management cannot campaign but both the union and the decertifying employees can (another reason it is best if the employees have counsel) but not on company property or during working hours.

The only real defence that the union could have, assuming the campaign happened during the open period and the requisite employees signed a petition, is to argue management involvement. That does not mean that non-union employees can’t express their opinion, or the coffee supplier or anyone else, as long as management is not seen to be behind it. If the union has evidence of management involvement, there will be a hearing on that before decertification is granted.

But there are things that the employer can do legally to facilitate union decertification. Reciting all of them is beyond the length of this column, but they include treating your people well so that they trust that there will be no risk to no longer having the union’s “protection,” apart from developing personal relationships with your employees for the same reason. If you have multiple worksites, keep them as separate bargaining units and never agree to combine them in one bargaining unit as that will make it virtually impossible for employees to sign up the majority of the entire bargaining unit as required.

Many argue that it is nearly impossible to decertify. That simply is not true. Indeed, that is a myth perpetrated by unions and others delighted with the status quo.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.