Discouraging unionization

Question: What can an employer legally do to discourage unionization?

Answer: The question whether and to what extent an employer can discourage unionization in the workplace must be considered in light of the statutory right of all employees to join and participate in union activities. Labour legislation throughout Canada protects these employee rights; for example, the Alberta Labour Relations Code states: “An employee has the right (a) to be a member of a trade union and to participate in its lawful activities, and (b) to bargain collectively with the employee’s employer through a bargaining agent.” These rights are reinforced in labour statutes through a variety of methods.

All Canadian jurisdictions set out categories of employer conduct that constitute unfair labour practices. The statutes specifically address employer participation in or interference with the formation of a union and attempts to coerce employees not to become union members as unfair practices. Employers are prohibited both from hindering union organization and from promoting or financing it. The latter prohibition is intended to insure any union ultimately certified is truly representative of employee wishes and not controlled by the employer.

A recent Alberta case provides an example of a subtle form of interference that was found by the Alberta Labour Relations Board to be an unfair labour practice. In Gateway Casinos G.P. and U.F.C.W., Local No. 401, the employer funded an employee’s campaign to oppose a merger of the former employee association with a union. The employee in question had approached the employer to express his dissatisfaction and was given a range of options, one of which was to contact specific legal counsel. Thereafter, the employee spearheaded a lengthy and protracted battle against the merger and union successorship application, which included representations before the board, judicial review proceedings and an appeal. The employer paid almost all of the employee’s legal bills — close to $150,000 — in the process. When the union discovered this, it filed a complaint with the board. The employer attempted to defend its actions on the basis that the employee was already opposed to the merger and the employer had merely facilitated the expression of his opposition through its financial support. However, the board was not convinced.

It found the employer’s payments breached the fundamental rule against employer interference with the employees’ selection of their bargaining agent. Despite the fact the funding was done surreptitiously, the employer’s support of the employee was not imperceptible. The employer had pointed out the employee’s actions as evidence of employee dissatisfaction in its communications to employees and had aligned itself with the employee’s campaign in an effort to give its own opposition to the union more credence. By doing so, it had attempted to foster an illusion that employees were so concerned about the merger they were prepared to spend their own funds to oppose it. Although indirect, this conduct breached the prohibition against employer interference.

This is but one example of the many ways in which employers can run afoul of the rules requiring employers from attempting to discourage unionization. However, it does indicate that even behind-the-scenes manipulation, however passive as it may be, can be problematic.

Employers retain a right of free speech in all jurisdictions. In many, employer free speech is expressly preserved in the relevant statute. For example, the Alberta Labour Relations Code allows expression of employer views as long as there is no “coercion, intimidation, threats, promises or undue influence.”

However, even in jurisdictions where no express limits are placed on employer free speech, it is essential for an employer opposed to unionization to proceed with caution. Some labour boards have, in the past, required employers to retain an attitude of strict neutrality in the face of an organizing drive. In jurisdictions where free speech is more literally interpreted or expressly protected by statute, boards have required more circumspection during sensitive periods, such as union organizing drives, collective bargaining for a first agreement and decertification applications. Also, the context of an apparently neutral message’s delivery can affect its character, so boards have examined not just the content but the nuances of employer communications for evidence of improper interference.

Any communication from an employer necessarily carries with it the weight of authority and some potential for intimidation if it expresses disapproval of employees’ initiatives. Where that communication is presented in an intimidating environment, such as a “captive audience” meeting — a meeting held during paid time or under circumstances where employees could reasonably infer negative consequences could follow from non-attendance — the employees’ economic vulnerability and the power their employer ultimately has over their work life is underscored.

The Alberta Board recently discussed these issues in the context of a complaint arising out of a certification application in International Association of Machinists and Aerospace Workers Local Lodge 99 and Calgary Exhibition & Stampede Limited. The employer distributed a letter and held meetings with small groups of employees in the bargaining unit a few days prior to the certification vote. The letter expressed the employer’s preference that its employees not choose to be represented by the union and highlighted its specific concerns for the employees’ consideration. In particular, it emphasized employees would no longer be able to deal with the employer directly about “terms and conditions of employment.” There was nothing in the letter that was coercive or intimidating and no threats or promises were made. The letter was found to be permissible employer speech. As the board pointed out, however, representations that might be lawful if only contained in a letter could cross the line into incidents of undue influence or implied threats or promises in the context of a captive audience meeting. In every case, a labour relations board would assess all of the circumstances to determine if the employer had exerted undue influence over the employees such that the free expression of their true wishes had been thwarted.

In dismissing the complaint, the board quoted from its 1989 decision in I.B.E.W., Local 424 v. Stuve Electric Ltd.

“Employers are not required to sit gagged and bound during an organizing campaign,” said the board. “However, an employer is in a position of power, particularly in respect to unorganized employees. Free speech must be tempered, as it is in section [148(2)(c)], by a recognition that certain conduct emanating from the employer can coerce or unduly influence employees impairing their right to freely select a union.”

The justifiability of employer conduct exhibiting its opposition to unionization can be affected by a number of factors. Conduct that is coercive, threatening or intimidating and has the intention or effect of influencing employees’ decisions on unionization will undoubtedly amount to improper interference. A measured and accurate response to union propaganda likely will not. Somewhere in between lies a grey area where employer conduct might or might not be permissible depending upon a myriad of factors.

For more information see:

•Gateway Casinos G.P. and U.F.C.W., Local No. 401, [2010] Alta. L.R.B.R. 122 (Alta. L.R.B.).
•International Association of Machinists and Aerospace Workers Local Lodge 99 and Calgary Exhibition & Stampede Limited, [2010] Alta. L.R.B.R. LD-016 (Alta. L.R.B.).
•I.B.E.W., Local 424 v. Stuve Electric Ltd., [1989] Alta. L.R.B.R. 69 (Alta. L.R.B.).