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Canadian labor relations provides some lessons for U.S. employers.
On April 30, changes to the National Labor Relations Board's (NLRB) union election case procedure will come into effect, barring congressional action or legal challenges. Pre-election hearings will be limited to determining whether there is a question concerning representation. Any disputes related to voter eligibility, supervisory exclusions or the appropriateness of the proposed bargaining unit, and any appeal of the regional director's decision to order the election, will be determined after the election.
In 2010, under the current procedure, the median time between the filing of the petition and the election was 38 days. That year, 95 percent of all representation elections were conducted within 56 days of the filing of the petition. The new rule does not set a minimum or maximum time period for when the election must be held. Timing will depend on how aggressively officials administer the new rule. Predictions suggest that most elections will likely occur within 15 to 20 days from the filing of the petition, roughly half the current median period of 38 days.
The new rule will advantage unions in the certification procedure, will put greater pressure on employers and may result in a less-informed employee electorate.
The lessons learned from Canada's experience with expedited votes are instructive for U.S. employers preparing for the accelerated election procedure.
In Canada, the 10 provinces and the federal jurisdiction each have their own labor relations statutes. For decades, certification in Canada was determined on the basis of a card-check system. No certification vote was required if the union could demonstrate that a majority of employees had signed cards in support of union representation.
In the 1990s, the majority of Canadian jurisdictions transitioned to a vote-based system. However, the trade-off in moving from the card-check system to the certification vote was an expedited vote. Depending on the province, certification votes must be conducted within 5 to 10 days from the filing of the union's application or petition for certification.
The certification procedure in Ontario illustrates the pace and challenges of an expedited vote. In Ontario, the election must be held within five business days of the filing of the petition. Basically, the employer has one week to formulate a legal response and to communicate with employees before they vote. A petition filed on a Friday sets the following steps in motion:
Friday—The union delivers its petition to the employer and files the petition with the Ontario Labour Relations Board.
Tuesday—The employer is required to deliver its response to the petition within two business days. The response must include any objection the employer may wish to make to the proposed bargaining unit and any additions to or exclusions from the bargaining unit that the employer finds appropriate. The employer is also required to provide the Ontario Board and the union with the names of employees in the proposed bargaining unit. Unlike the NLRB procedure, however, the union does not receive contact information.
Wednesday—The Ontario Board will order a vote if the union's petition is supported by cards signed by 40 percent of the employees in the proposed bargaining unit.
There is no pre-election hearing in Canada. Rather, an officer of the Ontario Board is in contact with the employer and the union to attempt to resolve disputed issues before the vote. The officer will develop the voters' list and set the time and place for the vote. The officer has no authority to determine challenges over any employee's right to vote.
Friday—The Ontario Board officer will conduct the vote on the Friday following the filing of the petition. Any disputes related to voter eligibility are addressed by segregating disputed ballots. Generally, the undisputed ballots are counted after the vote and an assessment is made about whether the disputed ballots could affect the outcome.
The following Friday—Within a week of the vote, the employer must inform the Ontario Board of any objections to the vote.
Hearing and Challenges
A further attempt will be made by the Ontario Board officer to mediate any differences between the employer and the union. Unresolved issues will be decided by the board within four weeks of the date of the vote. The petition will either be granted or dismissed depending on the board's determinations.
Employers in Canada face major challenges in responding effectively to a union campaign ordered by an expedited vote. While the timeline under the NLRB's new rule will be slightly more generous—at least based on current forecasts—U.S. employers will have to deal with many of the same pressures as Canadian employers.
An employer taken by surprise has to hurriedly decide what bargaining-unit description makes sense for its operations.
Responding to the Petition
The procedure in Canada forces employers to take legal positions on the description and composition of the bargaining unit with little opportunity for analysis. An employer taken by surprise, without internal labor relations expertise or previous experience with unions, has to hurriedly decide what bargaining-unit description makes sense for its operations and what types of employees should be excluded.
Correctly answering these questions requires an understanding of labor law principles and practice. Then, in light of the law, the employer should assess whether all positions properly belong in the bargaining unit sought by the union and whether a bargaining relationship based on the proposed unit would be feasible, given the structure of the employer's operations.
These are difficult questions. The two-day period afforded under Ontario's procedure often results in employers declaring positions that are not fully informed. This may lead to mistaken positions from which the employer cannot retreat or pleadings so cautious as to be of little assistance in narrowing the issues before the vote.
Many employers served with an application for certification have no understanding of the process about to unfold, nor will senior managers know what problems in the workplace may have triggered interest in union representation. These employers need advice, they need to instruct and coordinate their management team, and they need to gather facts. No effective communication plan can be developed until the employer knows what is driving interest in union representation and understands what can lawfully be said or done in response.
In an expedited voting regime, every day counts. Union officials understand the value of surprise. In Ontario, where the vote is conducted within five business days, the employer will often receive an application late on a Friday afternoon and will face a vote by the following Friday. Employees and supervisors may be gone for the weekend. The employer may not be able to fully assess the situation until work resumes on the Monday of the voting week. This leaves little time to formulate and communicate the employer's message.
Even the best-prepared employer is rushed to communicate its messages to employees. The prospect of reversing employee sentiment mobilized against the employer in the five-day pre-vote period is daunting. Complex information must be explained to workers who may have no experience with union representation. This information includes:
This information will be delivered in a torrent of letters and discussions. Employees have little opportunity for reflection and may simply be overwhelmed. Or, worse, the employer's communications may be misread as desperation and may bolster support for the union.
Integrity of Results
The NLRB's new rule will alter expectations and tilt the certification process in favor of the organizing union. Major changes like this to labor law and practice are often destabilizing.
It is critical that all parties have confidence that the results of an election reflect the legitimate choice of an informed workforce because the certificate is just the beginning. The employer and union officials will determine the quality of their relationship when they meet at the bargaining table. If the employer doubts the legitimacy of the election, union support may be challenged in first-contract negotiations.
For many years, petitions in Canada were determined on the basis of signed union cards and without a vote. There was a high incidence of bitter first-agreement strikes. This industrial relations problem abated with the transition in many jurisdictions from a card-check to a vote-based system. One reason for this trend was greater employer acceptance of the integrity of certification results.
Limiting the employer's accustomed opportunity to communicate with employees may undermine the perceived legitimacy of any resulting certificate. As under Canada's card-check experience, this could lead U.S. employers, unsure that the true wishes of employees have been expressed, to test union support at the bargaining table. Increased conflict in first-contract negotiations could result.
Prudent employers in Canada understand that the odds are against them in an expedited vote, and they focus on preventive measures to identify dissatisfaction and to dispel interest in third-party representation. Surveys, crew meetings, complaint procedures, ongoing communications and manager training become critical.
In Canada, initiatives aimed at fostering positive employee relations are lawful, provided employers do not resort to threatening or anti-union actions. The employer is free to seek the advice of labor lawyers and consultants to address workplace problems and to strengthen direct relations with workers.
U.S. employers will soon face the realities of an expedited vote. The challenge facing U.S. employers is compounded by new reporting requirements proposed by the U.S. Department of Labor related to "persuader activities."
If the contemplated changes to the LM-10 Employer Report come into effect, the employer will be obliged to report when consultants undertake activities to directly or indirectly persuade employees concerning their rights to organize. Among the expanded list of "persuader activities" are the development of HR policies or practices or conducting seminars for employer representatives aimed at influencing employees. This expansion in reporting obligations may constrain U.S. employers' ability to implement preventive strategies in a way that is not experienced in Canada.
It is a risky strategy to wait for a petition before developing a plan of action. By then, it is often too late to reverse the momentum. The most effective approach involves ongoing communication and a continuing commitment to identify and address problems in the workplace that could spark interest in union representation. However, employers should be prepared to respond to the petition if it comes. A sensible action plan would include:
The action plan for the pre-vote period is a necessary part of the larger strategy to engage employees and lawfully reduce the incentive for union representation.
The author is a senior partner in Heenan Blaikie's Toronto office.
SHRM web page: SHRM Online Legal Issues home page
SHRM article: SHRM Opposes NLRB’s ‘Quickie’ Election Rule (Labor Relations Discipline)
SHRM article: NLRB Approves Scaled-Down Version of ‘Quickie’ Union Election Rule (Labor Relations Discipline)
SHRM article: NLRB Backs ‘Quickie’ Election Rules, but Final Approval in Doubt (Labor Relations Discipline)
SHRM article: NLRB Proposes Rules that Would Speed Up Union Elections (Legal Issues)
SHRM article: House Committee Approves Measure to Block NLRB Proposed Rule (Labor Relations Discipline)
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