ith recent changes to British Columbia’s Labour Relations Code, employers now have greater latitude in what they communicate to employees during a certification or decertification drive.
In the past couple of years, decertifications have become a significant topic in B.C. There has been a decrease in the number of certifications and an increase in the number of decertifications. This is due to earlier legislative changes, in August 2001, requiring a vote by employees when a union seeks certification. Prior to that, the union could apply and be “automatically” certified if it had at least 55 per cent signed up as members. In one month recently the number of decertifications granted exceeded the number of certifications.
In general, the Labour Relations Board (LRB) is very vigilant in dismissing applications for decertification wherever there is any basis for concluding that the enthusiasm of the employer has flowed into the decertification drive.
This would include promises, assistance or allowing the decertification proponents to do things denied to the incumbent trade union.
Overt threats or intimidation are rare but promises are not unheard of. In one case, the employer unwittingly assured an employee that there would be no changes to the collective agreement if the decertification was successful. The LRB stated that such a promise was prohibited and dismissed the application.
In 2002 the provisions of the Labour Relations Code dealing with freedom of employer speech were amended to reduce the restrictions on employers. Prior to the change, the code had allowed employers “freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer’s business.”
There has been a long-standing tension between this “freedom to communicate” provision and other limitations in the code dealing with unfair labour practices. For example, sections 6 and 9 of the code state that an employer must not interfere with the formation of a trade union or seek by intimidation, threat or promise, to induce an employee to refrain from continuing to be a member of a trade union.
One obvious example of this kind of interference would be where the employer says, “I can’t afford the provisions of the collective agreement. I’m going to close the business.” While this may be a true statement of fact or opinion reasonably held about the business, its impact on the employees is dramatic. Unions would argue it is coercive and amounts to a threat.
The LRB had addressed this tension in a 1996 decision known as Cardinal Transportation. The decision dealt with two cases alleging employer interference and intimidation during certification drives. In both, the employers pushed the envelope when a number of individuals, acting on behalf of management, spoke directly to employees while the union was trying to organize. The board reasoned that the legislation obviously intended the employer to be able to influence employees, but what was prohibited was coercion and intimidation which interfered with the drive.
The board held that statements of fact or opinion could still be coercive or threatening and thus prohibited. As a consequence, employers felt their freedom of speech was unduly restricted and subject to interpretation.
The 2002 amendments to the code sought to address employer concern about their restricted speech. Section 8 was amended to read: “Subject to the regulations, a person has the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion.” The effect of this wording has been to give employers greater latitude in their communications to employees.
The phrase “subject to the regulations” refers to the government’s intention to address the issue of “captive audience meetings.” These are meetings where employers speak to employees about certification or decertification. The incidence of such meetings is on the rise because the certification process now requires an employee vote (decertifications have always required a vote).
The LRB feels employees are particularly vulnerable in these captive audience meetings where attendance may not be mandatory, but absence is easily noted and the maker of any comments easily identified. To address this concern, the government issued a statement of intention to introduce a process to control the manner in which employers addressed the captive audience meetings, perhaps even using a neutral party (an industrial relations officer, for example) as an observer and requiring written statements. But as employers have generally opposed these proposed regulations, and labour representatives haven’t shown enthusiasm for the plan, it is unlikely to proceed.
Changes to section 8, which expanded employers’ right to communicate, have recently been dealt with by the LRB in a certification decision referred to as
(B62/2003). This is a case involving complaints of interference and intimidation arising out of an employer’s determined response to a union organizing drive at a telephone call centre.
the LRB panel said: “The amendments reflect the confidence that a reasonable employee can make inquiries and assess these views knowing that most often, their (sic) employer will view participation in a union and collective bargaining as contrary to the employee’s self interest.”
The board held in
that coercion and intimidation is still prohibited, but now, discussion may still be acceptable even if it amounts to “undue influence.” This provision has not yet been the subject of discussion in a decertification case, but given the upsurge in decertifications, it soon will be. It seems likely that employers will use the expanded rights to communicate with employees in connection with these decertification bids, and inevitably, the unions will be filing complaints with the LRB over some of these communications.
The recent decertification activity in BC which is attracting significant protest from the trade union movement, is partial decertification. Partial decertifications are popular particularly where there has been a build up of certification by the addition of groups since the original certification, or where there is a multi-location certification. The LRB has recently revised a long standing policy decision and agreed to grant partial decertification. The effect is to release one or more locations or distinct groups at a single location.
Once again employer activity has come under close scrutiny. Unions often try to demonstrate that the employer has interfered by paying legal fees or promising to pay the legal fees for the dissident employees.
The privileged nature of the retainer has been the subject of recent rulings. Previous decisions have held that promises by the employer to pay the legal fees would be an unfair labour practice and payment would amount to interference. Either could result in dismissal of the decertification application.
Gary Catherwood is a Vancouver-based employment lawyer at Fasken Martineau DuMoulin. He may be reached at (604) 631-3119 or firstname.lastname@example.org.