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There are many cases that discuss the difficulties and issues associated with an  employer communicating directly with unionized employees during collective bargaining. The rules have as their cornerstone the fact that, upon certification, the union becomes the exclusive bargaining agent of employees. 

Unions have filed unfair labour practice complaints against the employer in circumstances where the employer communicates with employees during bargaining.  The cases seem to stress that it is not every communication with  employees that will result in a successful unfair labour practice complaint (in other words, it's not automatic), but employers must exercise caution at these times and be aware of the risks. 

A BC Board has put it this way in a recent case:

Again, communication regarding bargaining proposals is not without risk and there are cases where the union has been entirely successful.

However, there is one way (at least in Ontario) that allows the employer one (1) opportunity to, effectively, "end run" the union and the bargaining committee and put its final offer to the employees for a vote.  The Labour Relations Act, 1995 provides for a "final offer vote" on the employers' last offer received by the union.  Specifically the Act provides that:

The Ministry supervised vote is conducted and, if more than 50 per cent of those voting vote in favour of ratifying the agreement or memorandum, then there is a collective agreement.

There are strategic and procedural issues to consider in deciding whether to make use of this statutory means for achieving a collective agreement.  Obviously, making this  request of a third party (the government) suggests that the employer questions whether the union is really communicating with the membership or on behalf of the membership.  Assuming the vote is successful (or even if it's not), invoking the process will do little to assist harmonious labour relations during the term of the agreement. 

Whether to make a request for a "final offer vote" should not be an easy decision and much thought should go into deciding whether to invoke the procedure.

What got me thinking about this was a National Post article where the employer was indicating that it would be "asking the minister [of labour] for help." in ordering "a membership vote on the city's latest offer."  The dispute in the article seems to take place under federal legislation, and, I gather (though am not certain), there may not be a procedure similar to that in Ontario's Act for applying to the Ministry as set out above.

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