Toughest HR Question
Question: Can an employer publicly oppose a union-organizing drive without interfering with workers’ rights to organize?
Answer: Labour relations statutes in all Canadian jurisdictions contain unfair labour practice provisions designed to prevent employers from interfering in union-organizing campaigns at their workplace. Employers are prohibited, for example, from dismissing or disciplining employees because they have engaged in union activities or from using coercion or intimidation to persuade employees to oppose unionization.
But employers are not required to remain completely silent — all Canadian labour statutes give them at least some ability to communicate with employees while union organizing is underway. However, the nature and extent of an employer’s communication rights vary among provinces.
In British Columbia, the Labour Relations Code was amended in 2002 to broaden an employer’s right to express its views during certification and decertification campaigns. While coercion and intimidation are still prohibited, B.C. employers have an expanded right to communicate opinions about union representation. In Convergys Customer Management Canada Inc. v. B.C.G.E.U., the B.C. Labour Relations Board stated:
“Taken as the whole, the Legislature’s amendments to sections 2, 6(1) and 8 reflect important judgments about the ability of employees to make free choices about union representation, despite attempts to influence their decision-making through the expression of views that are not coercive or intimidating. The amendments reflect the confidence that a reasonable employee can make inquiries and assess these views, knowing that most often, their employer will view their participation in a union and collective bargaining as contrary to the employer’s self-interest. Hence, the expression of non-coercive or non-intimidating views based on the preference to resist certification are prima facie protected by section 8 and do not constitute interference for the purposes of section 6(1). This reasoning equally applies if views are expressed in what might be characterized a campaign to influence employees’ decision-making about union representation. In the absence of a deliberate lie, it is not the board’s role to police the accuracy or reasonableness of views expressed in accordance with section 8.”
B.C. employers can express opinions in opposition to union organizing, as long as they do not use coercion or intimidation. In RHM Teleservices International Inc., the employer responded to a union-organizing drive by telling employees it preferred to remain non-union and handing out gifts such as plastic sand pails and shovels filled with popcorn, with the message that the union did not secure work, bring in business or provide job security. The employer also distributed water bottles, notepads, and chocolate bars encouraging employees to question the union about the changes that could result from unionization. None of these actions were found to be a breach of the code.
However, the rules are more restrictive in other Canadian jurisdictions. In Ontario, for example, the Ontario Labour Relations Board in its 1988 decision C.J.A., Local 27 v. Povoa Carpentry Trim ruled that it is unlawful interference for an employer to tell employees that both they and the company would be better off if they were represented by one union over another.
Employers should obtain legal advice regarding the steps that can lawfully be taken in the jurisdiction in which the union organizing is occurring.
For more information see:
• Convergys Customer Management Canada Inc. v. B.C.G.E.U., 2003 CarswellBC 2202 (B.C. Lab. Rel. Bd.).
• RHM Teleservices International Inc., BCLRB No. B345/2003 (B.C. Lab. Rel. Bd.).
• C.J.A., Local 27 v. Povoa Carpentry Trim, 1988 CarswellOnt 1289 (Ont. Lab. Rel. Bd.).
Colin G.M. Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or firstname.lastname@example.org.
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