There’s a good story in the Star today about the successful efforts of workers at Toronto’s Trump hotel to win union certification. UNITE Here Local 75 is the union. The union won a certification vote and collective bargaining will now start towards a first collective agreement. There’s some interesting aspects to this campaign.
The piece describes the ups and downs of a typical service sector union organizing drive. In my former life, I was involved as a lawyer in many such campaigns, including campaigns at Walmart, Canadian Tire, and Tim Hortons, among others. There is always a shadow of fear
that at any moment the employer will freak out, break the law, and start firing people or engage in other threats and intimidation to pressure workers to reject the union. Rarely does an employer (in the private sector at least) take the position that this decision is up to the employees and therefore it will just stay out of it. Almost always the employer actively campaigns against the union and the law gives employers substantial tools to do so. For example, employers in Ontario are permitted to force employees to attend ‘captive audience meetings’ during working hours to hear the employer speak about why unionization is a bad decision for them and use their access to the employees to distribute antiunion literature directly to employees. The employers’ labour lawyers have a step by step rehearsed union avoidance response plan to guide employers through the process while staying within the legal rules. Some employers nevertheless cross over that line, and so unfair labour practice complaints alleging illegal threats or reprisals during organizing campaigns are not uncommon.
To Go Transparent or Not?
Unions usually try to keep the campaign from the employer for as long as possible to discourage or delay the union avoidance process from starting. They also usually try to hide the identity of employees who support the union for fear of reprisals. It’s illegal for employers to punish a union supporter in any way, but it’s certainly preferable from the union’s perspective to avoid any nasty unfair labour practice litigation and a reprisal against a union supporter can stop the momentum of an organizing campaign in its tracks. Therefore, the orthodoxy is that unions should hide the campaign from the employer for as long possible.
However, I remember in a few campaigns, my advice and that of some union organizers was to go completely transparent. By telling the employer that there is a campaign and that these are the employees who support the union, you give those employees a form of special legal protection from retaliation. Since the employer has been put on notice that Employee X is a union supporter, any employer decision that negatively affects Employee X will be immediately viewed with great suspicion by the labour board. The employer will not be able to say that they were unaware that X was a union supporter, and therefore must have very clear evidence that a decision negatively impacting Employee X has absolutely nothing to do with the fact that he or she supports the union.
This appears to have been Local 75’s strategy at Trump. The Star story claims that pictures were put up at the work place with photos of employees who support the union. The employer is alleged to have angrily ripped them down.
Another interesting twist in this campaign was the presence of a so-called card-check agreement:
In 2003, before the tower was built, Toronto city councillor Pam McConnell (open Pam McConnell’s policard), (Ward 28 Toronto Centre – Rosedale) sought and obtained a signed agreement that the Trump hotel would automatically allow union certification if a majority of workers in a bargaining unit signed union cards.
This practice of requiring hotels and casinos to agree to a card-check based certification process as a condition to obtaining political approval is a common phenomena in the US. The idea is to by-pass the heated, contested union election process required by our labour relations legislation and instead have a private arbitrator determine if the union has the support of a majority of bargaining unit employees. The arbitrator reviews union membership cards, compares the names to a list of employees provided by the employer, and if the union has card on behalf of some defined majority of employees, the employer ‘voluntarily recognizes” the union. No government run vote is required. Often these card-check agreements include also rules requiring employers to ‘remain neutral’, in other words, to not actively campaign against the union if a union campaign begins. American unions have organized hundreds of thousands of new members using these agreements, because the American union certification laws are completely inept.
I wrote my LLM thesis at the London School of Economics back in 2001 on the legal issues that might arise if the American neutrality and card-check agreements crossed the border into Canada, something I predicted would happen as our governments continue their attack on collective bargaining rights. The use of neutrality agreements seems to be growing in Canada, but they are still relatively rare, especially compared to the US. That’s probably because our ‘quick vote’ certification model is still far superior for unions than the American model, which can take months or even years to hold a union vote.
If you are interested in the legal issues that arise in the Canadian context in regards to neutrality and card-check agreements, check out two pieces I’ve written on the subject:
From 2006, Neutrality Agreements: Bargaining in the Shadow of the State
From 2009, Six Questions About Neutrality Agreements (And Some Answers)
The twist in the Trump situation was that Trump management took the position that it could just ignore the deal brokered by Councillor McConnell, since it was bargained with a predecessor company. That might be legally correct (think contract law privity of contract)–you’d have to read the actual agreement(s) to know for sure–but it certainly runs contrary to the spirit of what the city understood would happen if workers at the Trump tried to unionize. Nevertheless, the union decided to just go the normal route in the legislation and won anyways.
We will keep an eye on how bargaining goes.
Issues for Discussion
1. If you were advising a union, would you recommend ‘outing’ your inside union organizers so that there can be no doubt that the employer is aware of the campaign and the employees’ support for it? What are the risks and benefits of that strategy?
2. What are your thoughts on neutrality/card-check agreements? Do you think unions should pursue them more aggressively? Do you see any problems with these agreements?