When workers don't want to unionize

In a rare but not unheard-of turn of events, WestJet narrowly rejected unionization last week.

In a message on their Facebook page, the WestJet Professional Pilots Association said that 1,247 pilots voted with 561 “for” unionization and 684 against. Including two spoiled ballots, the end result was 55 per cent of pilots voting against certification, enough to quash the effort.

“It was an incredibly close vote and if I were WestJet, I would take no comfort from it and change my advisors,” Howard Levitt, a labour lawyer and senior partner at Levitt and Grosman LLP in Toronto told Yahoo Canada. “It reminds me, in its closeness, of the Quebec referendum.”

The vote is one of several attempts by employees to form certified labour groups since the company launched in 1996. But it’s the first since the Conservative government’s Bill C-525 – the Employees’ Voting Rights Act – came into play mid-June.

While in the past, proposed unions for federally-regulated industries governed by the Canada Labour Code – like railways, banks, telecommunications, broadcasting, shipping and air transportation – were automatically certified if more than 50 per cent of applicable employees signed union membership cards and paid the membership fee of around $5.

“Now (for federally-regulated industries) 40 per cent of employees must sign union cards to get a board-certified vote,” says Levitt. The vote is held with secret ballots.

“The reality is that ‎votes are normally won by employers because they have the ability both to probe their employees’ concerns and respond to them in continual propaganda both written and oral,” says Levitt. “Historically in the federal sector, until the (past) legislation, unions didn’t take a chance on votes for that reason but waited until they had fifty percent plus one signed up and then applied for automatic certification.”

Dr. Kendra Coulter, an associate professor at Brock University’s Centre for Labour Studies points out that while it’s difficult to know how often unionization efforts get voted down, it’s more common in the private sector and provinces with mandatory vote certification models.

“The process for forming a union varies depending on the province for most workers,” she says adding that generally there are two legal frameworks.

The first is the card-check certification, which allows workers wishing to organize a union to get a majority of signatures (often 50 per cent but sometimes less) and union dues then submit to the provincial labour board who will authorize or certify the union if it meets the prerequisites.

“This process is generally confidential and employers do not know who has signed union cards,” she explains pointing out that employers often do not even know there is an organizing drive going on until the application is submitted. “This route offers workers the best chance to learn more about unions and make up their minds independently, without any interference from employers.”

But more provinces have a mandatory vote model. In these cases the first stage is the same but if the legal minimum isn’t met there is a second requirement.

“The labour board next calls for a vote on unionization, usually held a week later and often somewhere at the workplace,” says Coulter. “A majority of workers have to indicate their desire to form a union for a second time.”

This is when employers usually get wind of the organizing campaign, a crucial point that can sometimes put them in a position to convince workers not to go ahead with the union.

In the case of WestJet, the airline’s chief executive Gregg Saretsky used the time surrounding the vote to send an email to all of WestJet’s staff warning that “having a union as your exclusive bargaining agent would have a significant impact on the nature of your employment and the way the company and employees interact with each other.”

The email also included a document saying that a union cannot guarantee anything, including the terms of employment, current wages and profit sharing and the employee share purchase plan.

Coulter says that while not all employers are opposed to unionization, few employers in the private sector remain neutral and many pursue multi-faceted union avoidance strategies.

“There are consulting and legal firms that specialize in developing or amplifying union-avoidance training and campaigns for employers,” she says. “It is not uncommon for employers to discourage unionization as soon as people are hired through anti-union training materials, one-on-one comments, etc.”

Union-avoidance strategies tend to fall under two categories – positive or negative.

“Threats can be individualized and targeted, or about what could be taken away from workers as a group,” says Coulter. “Emotions are powerfully used, and range from instilling fear, to literally tearful apologies and promises to heal the family.”

But choosing to vote against unionization isn’t always a byproduct of employer’s distaste against unions.

“Individual workers also bring their own particulars, and can be shaped by a negative experience with a union in the past or their family members’ views,” she says. “But employer-led union avoidance efforts have the biggest impact.”

However, to say it’s a simple workers versus employers situation ignores the other factors that come into play says Richard Press, a partner in law firm DLA Piper’s Employment Group in Vancouver.

“Sometimes, it’s simply about empowerment,” he says.

He points to Starbucks in British Columbia which unionized 15 years ago.

“Why would employees vote to unionize at Starbucks? Is it because they want job security to ensure they’ll still be pouring coffee when they’re sixty years old? I would suggest probably not,” he says.

Instead, he says they likely were looking for empowerment, a way to create a unified voice to represent their collective rights.

“Since then, Starbucks have all been decertified – a credit to the management there making employees feel empowered,” he says.

Although decertification is likely even less common then unionization getting voted down, it often sends a similar message: employees feel like they’re being heard and don’t feel the need to pay for a service to represent them as a whole.

Coulter says WestJets foray is likely to send a similar message while rattling their employers a bit as well.

“Even though a small majority of the WestJet pilots decided not to unionize at this time, they have gained a better understanding of their power and its potential,” says Coulter. “And workers’ efforts to improve their conditions throughout the company will continue through a range of routes, undoubtedly.”