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Special thanks to co-authors Andrew Shaw, Dave Bushuev and our articling student Ravneet Minhas for sharing this update from Canada.

In the United States, there have been many union-friendly changes at the NLRB and a number of high profile strikes making headlines in 2023. Our neighbors to the north are also experiencing an uptick in union activity.

With pervasive inflation and an uncertain job market, many Canadians are emerging from the pandemic with bolder workforce demands. For example, in the spring of 2023, federal public servants made headlines with the largest strike in Canadian history. More recently, 3,000 Metro grocery store workers went on strike across Toronto, demanding higher wages. In mid-October 2023, GM narrowly averted significant disruptions to its operations by reaching a deal with Unifor, which represents 4,300 workers in Ontario.

Employers are rightly concerned about the potential for increased union activity, which can cause significant disruptions to operations. There are many things employers can do to stay union free, but it requires treading carefully because labour laws offer extensive protections to employees’ right to unionize. One wrong step by an employer can lead to penalties, fines, and potentially automatic certification.

Understanding how quickly the 3-step certification process unfolds

The certification process formalizes the collective bargaining relationship. And, understanding how this process works and appreciating how quickly it can move forward is essential for developing an effective union avoidance strategy.

Generally speaking, the process for certification in Ontario involves three steps:

1. The Organizing Drive

In this first step, to the extent possible, the union will try to keep the organizing drive a secret. During this period, the union will typically attempt to gauge employee interest by having union representatives approach them inside or outside the workplace, as well as online, talking to them about any issues they may have with the workplace, and sharing union information with them. Most union organizing campaigns involve signing up employees as union members and collecting union membership cards. One way that unions target employers for a union drive is by obtaining the names, contact information, and/or home addresses of the employees of a certain workforce, which they use to send them propaganda.

Employers are often unaware that this step is occurring even though a union organizing drive can last for months (or, in some cases, even longer). It is important for management to have reliable sources in the workforce to advise them when a union drive is happening. Timing is critical here.Continue Reading Best Practices for Employers Amidst Signs of a Labor Union Resurgence in Canada

election box

In August, the National Labor Relations Board issued a notice of proposed rulemaking to address three rather limited situations involving employee representation issues. These proposed rules follow 70-plus years of experimentation with a hodgepodge of ad hoc one-off decisions, dramatic changes and frequent reversals in the process of enabling employees to exercise their rights under…

Historically employers could not restrict labor organizing activity in employer-owned, publicly accessible spaces. But, last month, in UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2 (2019), the NLRB reversed nearly 40 years of precedent holding that employers violate the National Labor Relations Act (NLRA) if they prohibit nonemployee labor organizers from publicly-accessible spaces.

Post UPMC, employers may adopt and implement neutral policies regulating the use of employer-owned spaces open to the public (such as cafeterias) and may lawfully apply those policies to exclude nonemployee union organizers. Employers with spaces open to the public should consider whether to adopt and enforce a content neutral (nondiscriminatory) bar to nonemployee solicitation or distribution in the publicly accessible spaces on their property.Continue Reading NLRB Rules That Employers May Lawfully Ban Nonemployee Union Activity From Publicly-Accessible Areas

(Thank you to our Baker McKenzie colleagues in Mexico for sharing this alert.)

As a result of a change in government leadership and recently signed laws and treaties, companies in Mexico now have an important “to do” for 2019: prepare to review any unions that are “on the books” and assess compliance in this new environment.

What are “White Unions”?

  • White Unions in Mexico are usually employer-friendly unions that — due to current legislation deficiencies — can effectively bar entry of other unions who might otherwise attempt to gain a foothold in the workplace. They have little to no actual membership and do not actively represent workers. Historically, any union could petition for unionization without the need to prove the support of workers.

What changed?Continue Reading Companies Doing Business In Mexico Need To Revisit Union Relationships