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Unions in Dental Offices: What are my rights?
By Paul Martin
If the term labour union conjures up images of “blue-collar” automotive or factory workers, then you likely are not aware of the changing face of unions in Canada.
In 2014, Credit Valley Oral Surgery was the first dental office to become unionized in Ontario. We are receiving an increasing number of enquiries concerning unionization, and it is believed that a specific union is targeting dental offices for unionization. If this is to occur, it will represent a seismic shift in the employment law landscape for dentists.
Unionization
The Ontario Labour Relations Act sets out the process for a workplace to become unionized. There is a specific application and voting process the workers and the union must go through. In Ontario, the union certification process is as follows:
- The union will commence organizing initiatives with employees in the workplace. The employer often has no idea that these initiatives have commenced.
- If the union can demonstrate that it has the support of at least 40% of the employees in the workplace, then it can file an application with the Ontario Labour Relations Board (hereinafter “OLRB”) seeking certification to represent the employees in the workplace.
- The union then serves the application for unionization on the employer.
- The employer is required to immediately post notice of the application in the workplace, so that it is brought to the attention of the employees.
- The employer then has two business days to complete, serve, and file a response. It should be noted that the response is not a response in the sense that the employer has an opportunity to make submissions as to whether or not the workplace should be unionized. The response is limited to the employer declaring its position on which workers constitute the bargaining unit, which workers should be excluded, and whether the Union actually has obtained 40% or more support in order to proceed with the vote.
- Five days after the original application is filed, the vote takes place. An officer from the OLRB supervises the vote.
- If 50% +1 of the employees vote in favour of the union, then the workplace becomes unionized, subject to any disputes about the vote that may be decided later. It is important to note that in the voting process, the percentage necessary to certify the union is based only on the number of employees who actually vote, not the number of employees employed in the workplace. If a dentist has 10 employees, but only 4 of them vote, then this group of employees will dictate whether or not the remaining employees become unionized. For instance, if 4 out of 10 employees vote, and 3 out of 4 vote in favour of unionization, then the entire workplace will become unionized.
- If the union drive is successful, the employer and the union will enter into negotiations for a collective bargaining agreement.
As you can see, the timelines are short, and the OLRB is typically unforgiving of employers who cannot meet the deadlines. This process can leave the employer scrambling to counteract the union campaign, in circumstances where the union has a significant head start.
Risks to dentist employers
There are significant business risks when a dental office becomes unionized. Firstly, the most obvious risk is that the employer will lose a large measure of control over workplace issues. Collective bargaining agreements often provide for grievance processes for employees. These processes can involve contested arbitration hearings. This will significantly drive up the time commitment and legal costs for dentist employers. Secondly, the establishment of a union in the workplace will undoubtedly drive up labour costs for the employer dentist. Having to pay more to employees in wages and benefits will decrease the profitability of dental practices. It is our opinion that a dental practice with a union in place will be more difficult to sell than a non-unionized work place. The sale of dental practice to a new owner will not remove the union from the workplace. Potential purchasers may be scared away by the presence of a union in the workplace. The presence of a union will result in more administrative headaches, and potential expenses.
Employer’s right to free-speech
If you think all of this sounds unfair and frightening, then you are probably correct. However, the employer is not completely without rights in the process. There is a common misconception that employers are not allowed to discuss the unionization process with employees. This is simply not correct. The Ontario Labour Relations Act does not prohibit discussions with employees, but rather moderates the contents of those discussions.
Under s. 70 of the Labour Relations Act, the employer is free to express his or her views regarding unionization, so long as the employer does not use coercion, intimidation, threats, promises or undue influence. So, while the employer may communicate with employees concerning unionization, they must be very careful in how they do so. The line between discussing unionization and engaging in prohibited conduct under s. 70 is a fine one, and employers must be cognizant of what they can and cannot say.
What employers can say or do
The entrenchment of the right of freedom of speech under the Labour Relations Act allows employers to express opposition to the union, and to express their opinion on the merits of unionization. Again, the employer must be careful not to utilize tactics of coercion, intimidation, threats, promises or undue influence. Below is a list of activities employers are entitled to engage in:
- The employer can inform employees that the employer wishes for the workplace to remain union-free, and that it does not wish to have a union intervene in the employment relationship. Employers can indicate that it would be best if the employment relationship remained direct, as opposed to having to negotiate through a third-party.
- The employer can inform employees that a union cannot guarantee its promises. Unions may often make promises to employees about what they will receive through unionization. However, a union does not unilaterally impose the terms and conditions of employment on the employer after certification. Instead, after the union is certified, the parties will still have to negotiate a collective bargaining agreement.
- The employer is allowed to indicate that if a collective bargaining agreement is not reached, then this will most likely result in a strike or a lockout.
- The employer may communicate facts about the union’s finances, such as the amount of strike pay unionized employees receive while off on strike. The employer can also discuss with employees the amount of union dues that will be payable, what union dues pay for, and the salaries of union personnel, so long as this information is accurate.
- The employer can stress the importance of voting in the process. Remember, if the voter turnout is low, then a minority of employees could end up binding the entire workforce.
- The employer can combat incorrect information or statements made about the workplace by the union.
Ultimately, employers are entitled to discuss their opposition to unionization, and can provide employees with facts about the union.
It would be best if communications with employees are conducted either in writing, or in what is known as a captive audience meeting, where the employer meets with employees to discuss the unionization process. Depending on the volatility of the situation, and the employer’s familiarity with what they can and cannot say, this may be a constructive exercise, or one that blows up in the employer’s face. Employers should work with a lawyer to ensure they are fully aware of what to say at a captive audience meeting, as running afoul of the legislation may have negative consequences, as more fully discussed below.
What employers cannot say or do
As stated above, employers cannot coerce, intimidate, threaten, make promises or exert undue influence over employees in relation to the unionization process. Specific examples of prohibited conduct are:
- The employer cannot make implicit or explicit references to job security. For instance, employers cannot advise employees that they will be fired if they attempt to unionize. Employers cannot indicate that if the workplace becomes unionized, it may be shut down entirely.
- The employer cannot engage in more subtle forms of discipline, such as a reduction in hours of employees who support unionization.
- The employer cannot promise bonuses, or pay increases, or additional benefits to employees in exchange for voting against a union, or agreeing not to participate in the process.
- The employer cannot side with employees who are voicing anti-union opinions that would be a violation of the Act if communicated by the employer personally. The Employer cannot reward those employees who are anti-union.
- The employer cannot advise employees that the business will becomes less competitive if the workplace is unionized.
- The employer cannot ask employees how they intend to vote.
- The employer cannot conduct surveillance of employees to determine whether or not they are participating in union activities. Employers also cannot have another employee report to them concerning union campaign initiatives.
- Risks associated with going too far
It is very important for employers faced with a union drive to not overstep the stipulated legal limits in communicating with employees. Employers can expect that unions will be aggressive in combating inappropriate employer communications. An employer who goes too far runs the risk that the union, or an employee, will make a complaint to the OLRB against the employer for engaging in “unfair labour practices”. The consequences for an employer who breaches s. 70 of the Labour Relations Act can be draconian. The Board has the remedial power to certify a union without a formal vote in response to an employer who engages in unfair labour practices. For instance, if an employer threatens to fire an employee (or employees) in response to unionization efforts, then the OLRB has the power to certify the union without the need to go through the application and voting process.
Discussing unionization is a potential minefield for employers in the dental industry. The unionization process elicits a visceral reaction in many employers. There is a strong sense of the small business owner being “in charge” of their office, and unionization represents a loss of that control. This can be a difficult pill to swallow for a business owner who has invested their entire career in building a successful practice.
However understandable the negative reaction to a unionization of the workplace may be, an ill-planned response will likely not serve the employer well. If the employer is emotional or angry, then these feelings are bound to taint the discussions with employees, and may cause the employer to go too far in their communications
How do you stop a union from gaining a foothold in your office?
We are strong advocates of taking preventative measures in the workplace. When it comes to the unionization process, our advice is no different. As trite as it may sound, if employees are happy, they will rarely seek to unionize. While employee happiness is a somewhat esoteric concept, employers would be remiss to ignore the changing reality of the dental workplace. These changes have happened, and it appears likely that more unionization will occur. An employer who proactively pays attention to their employees, and treats them fairly, will face less of a chance that the workers will band together to unionize.
As mentioned above, employers are often caught flat-footed when faced with a unionization drive. In this increasingly tumultuous time for dental offices, it would be prudent to have in place strategies to combat unionization initiatives, including information on how to conduct meetings with employees, and to draft acceptable communications to employees in response to union pressure. While the choice to unionize will ultimately belong to the employees, the employer who is knowledgeable about the process and their rights stands a better chance of combating unionization than an employer who turns their mind to it after receiving the application for unionization.
If you would like to discuss unionization in dental offices, please contact Matthew Wilton at matthew@wiltonlaw.com, or Paul Martin at paul@wiltonlaw.com, or by phone at 416.860.9889.
*The foregoing is not intended to be legal advice and is provided for educational purposes only. You should retain a lawyer to seek advice prior to taking any legal steps.