The first step in the unionization process is to:

Learning Outcomes

• Describe the steps in the union organizing process
• Describe employer rights and restrictions during an organizing campaign

Unionization is the process of organizing employees into a labor union that will act as the exclusive bargaining representative for all eligible workers. There are five basic steps in the process, proceeding from preparation to certification. The union standpoint is detailed below; management considerations are addressed below that.

Step 1: Preparation

The first step in the process is discussing concerns with co-workers. In this phase, employees are evaluating and building support for action. This step includes identifying core issues and educating co-workers on unionization rights. As noted on multiple union websites, this step also involves developing an understanding of proper union policies and principles. The goal of this step is to assemble an organizing committee that is informed and fairly represents the workplace.

Step 2: Campaigning

The second step involves developing a list of demands—also referred to as an issues program—and soliciting employee support for the union. Some unions provide social media training and support—a situation described by “union proofing” communications firm Projections in their UnionProof article “How Unions are Organizing Your Employees on Social Media Right Now.”

Step 3: Petition for Election

In order to proceed with a union election, at least 30% of employees must sign union authorization cards, although some unions prefer to see a majority show of support. Once this threshold is met, the organizing committee can submit a petition to the NLRB for election. The majority percentage is also significant in that an employer may voluntarily recognize a union based on “evidence,”—typically signed authorization cards—that a majority of employees choose union representation.

Step 4: Election

NLRB agents will conduct an investigation to confirm there are no issues that would prevent an election and develop an election agreement between the parties to establish the balloting date, time and place, ballot language and a method to determine who is eligible to vote. Managers and supervisors are considered management and cannot join unions or be part of the bargaining unit. Determination of the bargaining unit—who is eligible to vote—can be a point of contention. Management generally attempts to classify as many employees as possible as supervisors to limit union membership. The NLRB has established that employees who have the authority to make work assignments or direct the work of other employees may be classified as supervisors if those tasks require some independent judgment and discretion, even if they serve in this capacity for only 10-15% of their time.

Step 5: Certification

If the union receives a majority of the votes cast, the NLRB certifies it as the employees’ bargaining representative and is entitled to be recognized by the employer as the exclusive bargaining agent for eligible employees. Every member of the bargaining unit (eligible employee) is covered by the negotiated contract, whether the individual voted for the union or not. Failure to bargain with the union at this point is an unfair labor practice. 

Employer Restrictions and Rights

Both the union and employer have rights and obligations during an organizing campaign. As stated on the NLRB website: “The National Labor Relations Act forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity. Similarly, labor organizations may not restrain or coerce employees in the exercise of these rights.” For a detailed list of rights and obligations, refer to NLRB’s Employer/Union Rights and Obligations page. In Fundamentals of Human Resource Management, the authors emphasize the need to train management and supervisors on what constitutes “unfair labor practices,” using the acronym TIPS as a way to remember prohibited behavior. Specifically, management cannot Threaten, Interrogate, Promise or Spy on employees.

If management wants to prevent unionization, they must first be aware of why employees join unions and be proactive in addressing those issues. Speaking at SHRM’s 2018 Annual Conference, labor attorney Timothy Davis identified seven steps for employers to take to minimize the risk of unionization:

1. Review policies
2. Benchmark wages and benefits
3. Conduct employee management surveys
4. Train management on positive employee labor relations
5. Analyze an organization’s weaknesses
6. Implement a risk/response protocol
7. Prepare a first round of union avoidance materials

Davis’ top tip: maintain good employee relations. Tactical point: craft responses to typical union issues as a brief statement of fact so managers can communicate them effectively. For example, to support a claim of fair pay compensation should be in the top 10% in the industry.

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Chapter 10: Labour Relations

Employees, as separate individuals, have very little power when it comes to their relationship with companies’ management. When organized as a group, however, employees gain some power and can start leveraging that power to negotiate with their employer. In this section we discuss the process that a group of employees must undertake to become an official union.

The path to unionization and the process of maintaining a union is heavily regulated. These regulations can greatly vary from one legislation to another. In Canada, the system of collective bargaining is embodied in federal and provincial labour relations acts and labour codes. Canadian workers have the right to join trade unions, which may be certified to collectively bargain conditions of employment with their employers on their behalf. The Federal Public Service Labour Relations Act (PSLRA) is the law that regulates the collective bargaining and grievance adjudication systems in the federal public service. Provincial legislation, such as the Labour Relations Code in British Columbia, the Labour Act of Prince Edward Island, and the Quebec Labour Code, regulate various aspects of labour relations for most workplaces. In North America, the legislation with the most pro-union legislation is found in the province of Quebec. Coincidentally, it is also the jurisdiction with the highest unionization rates (40%; check out the map to see how much variation exists in North America).

The creation of a union follows has to follow a fairly strict process. First, an established union may contact employees and discuss the possibility of a union, or employees may contact a union on their own. The union will then help employees gather signatures to show that the employees want to be part of a union. To hold an election, the union must show signatures from over 35 percent of the employees of the organization.

Figure 1. The Unionization Process

Union and employees make contact	As a result of employee dissatisfaction, union and employees make contact and discuss possibility of joining forces.
Initial Organization Meeting	Initial meeting with union is scheduled to gather employee support.
Formation of organizing committee Application to Labour Relations Board	Local union leadership is identified. Its objectives is to organize a campaign to obtain the signature of a majority of workers willing to join the union.
Certificate is issues by the Board	Once a majority of these signatures are gathered, the workers can apply for official recognition to the Labour Relation Board. After checking the process and the signatures, the Board certifies the union.
Election of bargaining committee and contract negotiation	After having been certified, the first step for the newly formed union is to elect a bargaining team that will be tasked with negotiating a contract with the employer.

Unions approach prospective members with promises like higher pay, better health insurance, and more vacation time. Not surprisingly, then, management resist unions because they generally add to the cost of doing business. A a result, the union organizing process can be a very delicate process because most employers feel the constraints of having a union organization are too great. Collective bargaining can put management at odds with its employees.

There exists legal protection for employees considering unionization and it is advisable for HR and management to be educated on what can legally and illegally be said during this process. It is illegal to threaten or intimidate employees if they are discussing a union. Employers cannot threaten job, pay, or benefits loss as a result of forming a union. Figure 1 “Things That Shouldn’t Be Said to Employees during a Unionization Process” includes information on what should legally be avoided if employees are considering unionization.

Figure 1. Things That Shouldn’t Be Said to Employees during a Unionization Process

Despite all of the above, some organizations will go to great length to prevent unionization of their workforce. In Quebec, there has been some illustrious examples of how motivated some organizations are to keep unions out.  Most notably, the Wal-Mart in Jonquière became the first store  in North America to be unionized in 2004. A few months later, Wal-Mart closed its store and put approximately 190 employees out of work claiming that the store was not profitable. The laid-off employees took Walmart to court and the case made it to the Supreme Court of Canada. The court found that Wal-Mart did not adequately prove the four-year-old store was in financial difficulty and violated a provision of the Quebec labour code by changing the workers’ conditions of employment without consent while the terms of the collective agreement were being negotiated. You can read about this landmark case here.