Employers should tread lightly as statements can be perceived as coercive: Lawyer
A longstanding dispute between a hotel in Mississauga, Ont., and the union that hoped to organize its employees has ended with the Ontario Labour Relations Board (OLRB) ordering automatic union certification.
The case demonstrates the subtleties around employer free speech during an organizing drive, according to Stephen Krashinsky, a lawyer with Sack Goldblatt Mitchell LLP in Toronto who represented the union, UNITE HERE.
The OLRB ruled managers at Hotel Novotel in Mississauga acted illegally when they used misinformation and the threat of job losses to deter employees from unionizing. The board also ordered the hotel to pay union organizer Rekha Sharma the equivalent of eight hours’ pay per week dating back to April 2009 for cutting all of her part-time hours during the organizing drive.
The decision sends a serious message to employers about the limits of free speech, Krashinsky says.
“The board was prepared to look at the subtlety of the message,” he says.
While legislation varies by province, employers in Ontario can express their opposition to a union, so long as they do not intimidate or coerce employees in the process.
Defining what constitutes a threat or intimidation during an organizing drive can be difficult, especially because the messages are often subtle, Krashinsky says.
“It’s a rare employer who will get up and say, ‘If you vote for a union, you will lose your job,’” he notes.
In the Novotel case, managers held “roundtable discussions” during which they equated making bad decisions — voting for the union — with job losses experienced by other companies, and repeatedly referred to job security issues.
The company also shared what the board called “gross misinformation” about the employees’ ability to retain their family doctors under a union or their ability to continue to participate in the hotel’s RRSP programs.
The board said, taken together alongside the removal of a key union organizer, employees would have been left with the impression their job security would be in jeopardy if the union was certified.
“Employers learn to push buttons and unions find it difficult to win,” Krashinsky says.
Similar to Ontario, employers in British Columbia also have more latitude when it comes to how they communicate with employees about unions and collective bargaining.
That freedom initially appeared to be quite broad, based on a 2006 B.C. Labour Relations Board (BCLRB) decision involving a call centre, according to James Kondopulos, a management lawyer at Roper Greyell LLP in Vancouver.
In that case, the employer held a number of meetings to discuss the union’s certification drive, during which references were made to losing money. Slide projectors were also used to post anti-union messages and gifts bearing similar slogans were distributed to staff. The employer also brought in managers from other locations to wander the workplace and answer employee questions.
The original panel found the employer’s conduct permissible under section 8 of the B.C. Labour Relations Code that deals with unfair labour practices, saying the meetings were voluntary, the employees were free to look away from the projected images, and the gifts did not qualify as “expressions of genuinely held opinions.”
It also suggested the extra managers were also performing tasks unrelated to the campaign against unionization.
The union appealed and, on reconsideration, the BCLRB found the employer guilty of launching a “political style anti-union campaign.”
As with the Novotel decision in Ontario, the board took a contextual view of the case by saying “…it is not sufficient merely to consider the words expressed. The entire context must be considered.”
“I would advise employers in the organizing context to tread lightly because one or more statements can be taken together and can be perceived as coercive,” Kondopulos says.
He suggests employers counter a proposed certification with written material that sticks to topics such as the benefits of dealing with an employer rather than a third party, or issues such as inflexibility within collective agreements and the idea of seniority versus meritocracy.
While automatic certification is the extreme result, it’s also extremely rare, according to Kondopulos.
There have been nine automatic certifications in B.C. since 2002, he says, of which only some may be the result of employer actions during an organizing drive.
But those numbers don’t tell the full story, according to some union representatives.
Employers often push “close to the line” but don’t cross it, says Sean Hillman, a staff representative with the Federation of Post-Secondary Educators of B.C. He recalls an employer that recently announced, during a certification drive, it was suddenly planning to create the higher-paying positions it had been promising for years.
Although not a ‘threat,’ Hillman says it had the desired effect.
“(Section 8) certainly appears to have had a chill,” he says. “It’s getting more difficult and it’s more work to organize.”
Both Hillman and Krashinsky say the solution is to return to card-based certification.
While that would limit employer free speech in the short term, having a union is “not a prison sentence” and employees could apply to decertify a union eventually, Krashinsky argues.
