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

In the last two Saturday columns, we discussed the mistakes employers make that result in their employees turning to unions and what smart employers do to ensure that doesn't happen.

But what if your employees have already started a union drive? What do you do then?

Fix problems before they become symbols

Unions thrive on:

• Symbolic injustices
• Small issues left unresolved
• Employees who feel unheard

Most union drives start with one unresolved complaint from an employee. What you may think is insignificant, might be a warning sign. It is important to take every concern seriously.

An employee may make what appears to be a minor suggestion or express some gripe casually at the water cooler. But that employee may have screwed up their courage for a week before telling their manager what was bothering them. If you ignore it, dismissing it as a casual comment, it can bottle up and create resentment in the employee, who will miffed at not being taken seriously.

There is nothing wrong with declining an employee's request as long as you provide a rationale — because nothing is as grating as being ignored and feeling unheard. Employees who feel that way end up signing union cards.

You should be regularly communicating with your employees, by department or with the organization as a whole, as well as individually. You should have suggestion boxes available, where feedback and anonymous complaints can be placed. Employees who are taken seriously are more inclined to feel part of the enterprise, and are the ones most likely to provide you early warning of a union campaign.

What you can say

Workers need to know what a union actually brings. Mandatory union dues, seniority rules, grievance wars and no guarantee of a salary increase (beyond the dues that will be deducted from their new salary) as both sides will bargain in their own interest.

Then there is the likely loss of individual merit in determining wages — and potentially promotions. In discussions or meetings with employees in the event of a union campaign, you should compare your benefits and wages to those of other companies in your industry — particularly unionized ones — if it favours you. And note the actual increases your neighbouring unionized workplaces received compared to those your employees are being promised (again, if it favours you).

You are allowed to say:

1. What unions can and cannot do
2. That unionization will change the relationship
3. That flexibility that may have benefited them in the past will be reduced
4. That disputes will go to arbitration rather than be worked out quickly and privately

You are not required to be neutral about your business. Silence is interpreted by employees as guilt and effectively cedes the union's propaganda.

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?

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.

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.

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

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

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.

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).

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

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.

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.

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.

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.

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).

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

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.

The reality check

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?"

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

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

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.