You may have noticed the splashy opening of Victoria Secret’s new store at Yorkdale Mall recently, complete with ‘Angels’. It’s a big store, and the Human Resources group at VS has no doubt been busy hiring 
dozens of employees—er, sorry, “associates”, not mere employees. Once hired, VS employees .. damn, I mean “associates” (when will I ever learn this HR speak!) will receive the VS Associate Handbook and a booklet that describes VS’s values and expectations of Associates. One provision in the “values” booklet is is called “Our Union Free Advantage”. Here’s some excerpts:
In fashion, winning means giving our customers what they want, when they want it. There’s a narrow window for winning, and everything that slows us down or inhibits our agility puts our success at risk. We believe we are more productive, more efficient and better able to deliver on our brand promises when we have close, collaborative relationships between associates and management, without interference from a third party, like a union….
…Limited Brands associates have grown their careers and the business on a platform of collaboration, cooperation, and by retaining the power to work freely and directly with each other. This collaborative spirit is the foundation of our enduring success. It comes from our values and reflects mutual respect, honesty, and fairness we believe creates the best working environment–and the vest results–for everyone. We pledge to maintain this collaborative atmosphere and protect each associate’s right to deal directly with the Company.
We believe [our] commitment to open and communication and cooperation makes interference from a third party, like a labor (that’s American spelling, by the way) union, unnecessary.
For my industrial relations students, this is classic Managerialist (HRM) speak. The idea is that unions are bad, that the employer can protect employee interests through “open door” policies and progressive HRM strategies, and that employees are better off dealing with the employer on an individual basis, rather than as a collective. This is the argument that Institutionalists (Pluralists), Reformists, and Critical/Radicalists think is hogwash. Recall Professor James Gross’ argument that VS’s strategy of trying to dissuade workers form joining unions is a violation of the fundamental human right to join unions and engage in collective bargaining.
Does VS’s statement to associates that they don’t need a union mean the workers can’t organize a union? Of course not. The statement has no legal meaning at all, except perhaps to serve as evidence that the employer would prefer to remain non-union, hardly a surprise. It is illegal in Canada to require an employee to agree as a condition of employment not to join a union. But I don’t think the text could be interpreted as requiring employees to refrain from unionizing, even though VS probably hopes employees think it does.
Are the statements in VS’s Policy Manual Illegal?
Our labour laws protect the right of workers to join unions, and because the state assumes that most employers will resist their employees’ attempts to unionize, it has passed laws limiting what employers can do and say in their efforts to resist unionization by their employees. The key section on employer speech in Ontario is Section 70 of the Labour Relations Act, which says this:
No employer … shall participate in or interfere with the formation, selection or administration of a trade union … or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
So, the question is whether VS’s comments amount to coercion, intimidation, threats, promises, or undue influence. Do you think they do? I would say there is a pretty deliberate message in the text that I can in Philosophy 101 argument format: (1) we are in an industry that requires us to be able to make decisions quickly and make changes when necessary without delay; (2) if we are unable to make those decisions and implement changes quickly, the success of our business is “at risk”; (3) unions impede our ability to respond quickly as needed; (4) therefore, unions put our success “at risk”. That’s the intended message, in my opinion, but do you think it crosses the line and amounts to “intimidation” or a “threat” that if workers join a union, their job security is at risk?
What should we make of the “pledge” by VS to “protect each associate’s right to deal directly with the Company“? If a majority of workers choose to be represented by a union, then VS in fact cannot “deal directly” with the employees. That rule is covered by the Section 70 prohibition on employers interfering with the administration of a union and also Section 73, which prohibits employers from bargaining directly with unionized employees. The union becomes the “exclusive representative” of the employees. Presumably, then, VS is “pledging” to resist unionization by its employees, since that is the only way it can protect its right to deal “directly with employees”.
Again for my Industrial Relations students, note that only a Managerialist (HRM) and a Neoclassicalist would find any sense in the notion that employees’ “right” to bargain with their employer directly under an individual employment contract model should be “protected”. The other perspectives we studied [Institutionalist (Pluralist), Reformists, and Radicalists] would all think it is ridiculous to speak about “individual bargaining” between employer and employee as beneficial to employees, since “individual bargaining” in employment is merely double-speak for allowing the employer to unilaterally fix the conditions of employment. The VS employees themselves probably experienced this in their recruitment. How much “bargaining” about conditions of employment do you think occurred during the hiring interviews at Yorkdale? Do you think even a single employee managed to bargain a higher starting wage, or a better benefit package, than what VS offered initially?