Thanks to one of my students for sending along this link to Target’s anti-union indoctrination video for new employees. Apparently, Target used unionized actors to the make the video, which is pretty funny. Since Target is about to move into Canada and will be hiring hundreds of new “team members”, I’d thought it would be useful to provide a colour commentary to Target’s claims about unions, collective bargaining, and workplace law for those employees.
The notion of forcing new employees to watch a video explaining the employer’s opinions on unionization is a distinctly American invention. Thankfully, few Canadian employers engage in this sort of forced indoctrination, and those that have tend to be–surprise–American corporations which have crossed the border. The content of the video is mostly standard fare that we expect to hear from employers these days whenever an organizing campaign begins. It paints unions as money grabbing goons who will lie, cheat, and steal employees’ hard earned (though very meagre at Target) pay in exchange for no value whatsoever. On the other hand, the employer is described as an altruistic, caring entity that has nothing but the employees’ welfare in mind. So let’s deconstruct the message for our future Target employees.
Can an Employer Force Canadian Employees to Watch an Anti-Union Video
Good question to begin with. Not sure if Target intends to force Canadian employees to watch the video, but let’s assume they try. In the U.S., the right of employers to compel employees to listen to the employer’s opinions on unions has traditionally been upheld as falling within employer speech rights. However, opposition to this practice has been growing there, and a number of States (including Oregon, Michigan, and New Hampshire) have recently passed laws banning employers from doing this on the basis that it is oppressive and violates the employees’ right not to be forced to listen to ideas they disagree with. See my earlier blog on this topic.
In Canada, other than in the Federal sector, employers are permitted to hold ” captive audience meetings” to proselytize non-threatening anti-union views. However, forced viewing of antiunion employer propaganda like a movie or slide show is another matter. It is rarely done in Canada, but we do have some examples. One involved an employer in B.C. called RMH Teleservices, which among other actions, forced employees to watch slide shows describing the evils of unions. The B.C. Labour Board ruled that the forced watching of anti-union slide shows at work amounted to unlawful communication, even though the content of the messages in the slides was not threatening. The Board noted that the Charter does not protect forced listening, and that labour legislation should be interpreted with Charter values in mind. According to the Board, forced watching of slide shows was a “type of communication where otherwise permissible views become coercive and intimidating.”
I have criticized the way that the Board got to this decision, but I think the outcome was correct. Forced watching of antiunion videos should be unlawful under Canadian labour law. Think of one other situation in your lives where you are compelled to sit and listen to someone tell you not to exercise your lawful rights? If Target tries to force Canadian employees to sit and watch their anti-union videos, the practice will almost certainly be challenged as a violation of labour laws. And since we also have ‘remedial certification’ in most jurisdictions–the power to certify a union when an employer commits an unfair labour practice–it would be risky indeed for Target to test the waters.
So lesson one for Canadian Target employees: if you are forced to watch employer antiunion videos, your new employer may already be violating your legal rights. If this happens, I’d love to hear about it. Send me an email.
The Target “Open Door” Policy
The video claims that Target “prides itself on our open door policy”. Managers will answer all your questions, so feel free to raise any issue. That sounds familiar to Canadian labour lawyers: it’s exactly what Walmart tells employees.
But that “open door” policy came back to haunt Walmart in the famous Windsor case. I was on the union’s legal team in that case and remember it well. Walmart thought it would be clever and refuse to answer the one question employees were interested in: Will you close the store and fire us all if we chose to unionize. Suddenly Walmart’s open door slammed shut.
The Labour Board ruled that it is unlawful to promote open communication and solicit questions from employees about everything, but then refuse to tell them that you will not fire them if they exercise their lawful right to unionize. The labour board explained what Walmart should have said when asked by employees if the store will close if workers unionize:
“There is no legal prohibition against answering questions with regard to store closure by saying that the company would not close and would sit down and negotiate with the union if the union was successful. Obviously, it is only illegal for the company to say that the store would close. Therefore, by not alleviating employees’ concerns by answering the question, the company was intentionally fuelling employee concerns.”
So, lesson two for new Target employees: It is illegal for Target to threaten a store closure to dissuade you from supporting collective bargaining, and the company should not do anything that would lead a reasonable employee to believe there is a chance that joining a union could lead to them losing their job.
Unions are a Business that rely upon union dues to survive
It’s certainly true that unions relies on dues to fund the services they provide. Target suggests that this is some dark, deep, despicable secret. Unions are a service provider. They employ lawyers, economists, researchers, professional bargainers, communications people, and organizers, as well as support staff and other employees. They need to pay for offices, computers, paper, stationary, travel, and so on. They also have to pay for arbitrations to defend workers and pay workers who are striking. All of this cost money, lots of it. And Target is correct, that money can only come from dues paid for by the people who the union represents.
The amount of dues is no great secret–ask the union and they’ll tell you the amount–and it will usually be based as a small percentage of your pay, and it is tax deductible. My faculty union at York sets its dues at slightly over 1 percent of my pay, for which I receive lots of benefits. Also note that you would not pay dues until the union has bargained a collective agreement that a majority of the employees have voted to accept. The requirement to pay dues is found in the collective agreement that you will have a chance to vote on.
The question for you is whether the services offered by the union justify the dues.
Workers Don’t Join Unions Because Many of the Good Things Unions Fought For in the Past are Now Covered by Laws
It’s true that union fights contributed to the passage of many laws, such as employment standards, human rights, workplace safety, unemployment insurance, et cetera. However, to suggest that legislation protects employees from mistreatment by employers is nonsense. If it were enforced effectively, then maybe you could make that case. But we know empirically that regulatory standards are plagued by enforcement problems.
For example, Harry Arthurs noted in his recent study of federal labour standards that 75% of employers were not in compliance with at least one provision of the Canada Labour Code, and 25% were not in compliance with “most obligations” (see p. 192). Ask the hundreds of nonunion bank employees who are seeking to recover wages and overtime they claim was not paid them how difficult it can be to obtain statutory benefits. Or ask Walmart employees, who have been forced repeatedly to sue to recover basic statutory overtime pay. We also know that virtually no employees file ESA complaints–it is only ex-employees who use the ESA mechanism.
The story with human rights isn’t much better. Human rights legislation requires employees to bring a legal action against their employers, which very few are prepared to do. So the cases that are actually decided by Tribunals represent only the tip of the iceberg of actual incidents of discrimination. Women and non-white workers in particular have fared very poorly in the big retail companies, usually stuck at the retail floor level.
Target itself has been the “target” of numerous complaints alleging violations of labour standards and human rights legislation in the U.S. Some examples found with a quick google search include a 2007 race discrimination case that Target settled in Pennsylvania by paying 14 black workers a total of $775,000. In another case, Target paid $100,000 to settle a complaint of non-accommodation by a disabled employee.
One thing that unions do very well is ensure that employment legislation is complied with. In Canada in particular, employment-related statutes are enforced through the labour arbitration process directly by unions on behalf of their members. That is one of things your union dues pay for: professional representation in ensuring compliance with employment legislation. Nonunion Target employees must hire lawyers or represent themselves in complaints to recover their statutory entitlements if Target fails to pay overtime pay, discriminates against them, et cetera.
Finally, union dues are a form of insurance. If you are dismissed or disciplined, the union will represent you and you do not have to pay legal fees. A typical dismissal arbitration can cost thousands of dollars, but the union covers those costs if you have a decent case. Moreover, a unionized employer needs a reason to fire or discipline you (“just cause”), which is not true of a nonunion employer. If a unionized employee is dismissed without just cause, she will probably get her job back, something that would never happen in a nonunion environment. So there are definite benefits to being covered by a collective agreement.
Unions will insist on “old fashioned” job structures that prevent an employee in Menswear from Helping a Customer in Sports
Ok, that’s just silly. No union would insist that an employee not be permitted to answer a question posed by a customer. More importantly though, any rules about job assignments would be bargained with the employer. The union doesn’t impose anything on the employer, as the video notes later on, when it explains that: “management doesn’t have to agree to any union demand. If the union demands seem potentially harmful to the company, too expensive, or not too smart management can simply say no.” That is true. So the only way that the sorts of nonsensical terms the video threatens would end up in a collective agreement is if (1) a majority of the employees insisted the terms be there and (2) the employer agreed to them. Seriously, why would that ever happen?
No Target Employees have ever unionized
True, but American labor laws are basically useless in terms of assisting retail workers to unionize. It’s easier to organize a union in Canada than in the U.S., mostly because there, the law permits an employer to drag out the process prior to a unionization vote for months and months. In Canada, depending upon what province the store is located, the union will either need only to collect membership cards on behalf of some majority of employees, or it will need to win a vote that will happen very quickly after the union applies to represent the workers. In Ontario, for example, it is 5 business days. That gives companies like Target very little time to wage their “vote no” campaigns. Of course, it is true too that Canadian retail workers employed by ferociously anti-union employers like Walmart have had little success bargaining decent collective agreements, even under the Canadian legal model.
Your signature on a union card could be used by the union to get the right to legally represent you and collect dues with out even letting you vote.
That certainly is not true in any jurisdiction with mandatory ballots, which is most of Canada. The only way signing a union card could lead to a Target employee being legally represented by a union without a vote is if Target voluntarily recognizes the union without requiring a vote. That ain’t gonna happen. Or if Target commits a serious illegal act that prevents a fair vote from every being held, a result that Target can avoid by simply obeying the laws. And as I noted above, in Canada, unions don’t require dues to be paid until a collective agreement is in force, and no collective agreement can come into force until a majority of employees in the bargaining unit at a given Target store vote in favour of it. So, in other words, before you have to pay dues to the union, you will have had at least two chances to vote: a certification vote and a collective agreement ratification vote. A third vote will be held if there is a strike, since no strike is lawful until a successful strike vote is conducted.
Once a Union is Certified, you can no longer bring your great suggestions to the Employer
Utter rubbish. Again, the only way that you could be prevented from making suggestions to the employer is if the collective agreement prevented you from doing this, and why would the union and employer agree to that. It’s true that the employer can no longer “bargain” with you directly about your wages and benefits, because the law would make the union your legal representative for those purposes. So if you think that you will be more successful “bargaining” wages and benefits on your own than as a collective with the union’s assistance, you shouldn’t support the union.
If Target is unionized, everything will be determined by seniority rather than the employer’s perception of who is the best worker.
Seniority rights are bargained rights, so if the employees don’t want seniority to be relevant, they can direct the union to not ask for seniority rights. If the employer doesn’t want seniority rights, then it won’t agree to them. One of the main reasons workers join unions, according to surveys, is because of the perception that employers do NOT base decisions about raises and promotions and layoffs on merit alone. Instead, personal favortism, bias, and discrimination is believed to come into play. Unions do usually try to restrict employer discretion by imposing transparent rules. If you trust your employer to always reward you for you hard work, then perhaps you will not be as inclined to support unionization.
A union organizer might make promises that the union can’t keep in order to get you to sign a union card
That could happen. Just like the employer may make many false claims about what will happen if you do unionize (some of which are recounted here). You should take everything that union organizers, your co-workers, and your employer say with a grain of salt and a dose of common sense. Just remember that the union has to bargain any changes, it can’t just implement them. The union will probably due a survey of workers to see what they want to ask for, and then it will go to the bargaining table to try and bargain those things.
You don’t need a union because Target will always treat you fairly
Well, this is obviously up to you to decide as an employee. Statistically speaking, we know that unionized workers receive WAY more in wages and benefits than nonunion workers. In Canada, unionized workers earn between 10-25 percent more than nonunion workers, depending upon the study you look at, and have better pensions, medical plans, dental plans, and disability plans than nonunion workers. These are overall statistics and do not guarantee that a union at Target will achieve those results. Moreover, union improvements tend to accrue over time, so you shouldn’t expect any great improvements immediately, especially since Target would fight hard to ensure that a unionized store does not receive more than a nonunion store. This is why unions have not been very successful in the retail sector (outside of grocery stores). Workers are interested in unions, but a union at a single Target store will have little bargaining power compared to the giant corporation. It would be difficult for the workers at a single store to win improvements by threatening a strike, since Target would prefer to allow the strike rather than provide a reason for other stores to unionize.
So there you have it. We will watch Target carefully. Hopefully it will turn out to be more law-abiding that its big competitor Walmart has been when it crosses the border. Please send along comments or stories about Target’s employment practices.