Walking the line between simple communication and interference

Avoiding interference with union organizing

Tim Mitchell

Question: When a union organizing drive is taking place in a non-unionized workplace, how far can an employer legally go to inform its employees of its position against the drive?

Answer: Broadly speaking, the regulation of employer communications during an organizing drive involves the balancing of employer and employee rights. An employer’s right to inform employees of its views, often referred to as employer free speech, is balanced against its employees’ statutory rights to join a union, to participate in its lawful activities and to choose a bargaining representative freely and without employer interference.

While employers are not prohibited from expressing their views, and are often given the express right to do so subject to certain conditions, their communications with employees cannot encroach on these employee rights. Unfair labour practice provisions in every province and in the federal jurisdiction provide a remedy where it is alleged that employer communications have gone too far. There are many similarities in the legislation and consistent themes running through the case law. However, the statutes do differ from jurisdiction to jurisdiction. The terms of the relevant legislation and the jurisprudence interpreting that legislation should be considered in assessing the appropriateness of a communication in any particular case.

Under the Alberta Labour Relations Code, employer communications are typically challenged under provisions prohibiting an employer from interfering with the formation of or representation of employees by a union or, less often, contributing support to a trade union. (s. 148(1)). These prohibitions, as applied to employer free speech, are moderated by s. 148(2). This provision allows an employer to “express (its) views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.”

Addressing the scope of this provision in I.B.E.W., Local 424 v. Stuve Electric Ltd., the Alberta Board said:

“Employers are not required to sit gagged and bound during an organizing campaign. Employees are not like Burns’ ‘wee timorous beasties’ scared off by the slightest expression of employer opposition. 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.

Other labour boards have echoed these sentiments, ruling that reasonable employees have the ability to make inquiries and to assess employers’ views, knowing that employers are unlikely to welcome unionization.

The B.C. Labour Relations Code provides perhaps the greatest scope for employers to express their disapproval. The B.C. Board has interpreted 2002 amendments to the code as permitting an employer to effectively interfere with union organization and to carry on a campaign to influence employees’ decision-making about union representation provided that it does not resort to intimidation or coercion. The board has ruled that, absent coercion, intimidation or deliberate lies, employer communications to employees need not be either informed or reasonable: Simpe ‘Q’ Care Inc.; RMH Teleservices International Inc. v. B.C.G.E.U..

The line between an acceptable communication and a coercive or intimidating one resulting in an unfair labour practice can be a fine one in the sensitive context of an organizing drive. As the consequences of misstep can be severe, it is vital to ensure that management is aware that caution is required when communicating with affected employees. Communications that threaten negative outcomes such as job loss, plant closure or reduction in salaries, benefits or hours of work if a union is certified or, alternatively, promise improvements if the union is defeated are problematic and should be avoided.

It is also important to recognize that the legitimacy of an employer communication is not judged solely by reference to its content. Factors such as the parties’ relationship and their prior history; the manner in which the employer’s views are expressed; the place, form and timing of the communication; the conduct and demeanour of the speakers; and similar circumstances are all relevant in determining the effect of the employer’s communication on the reasonable employee. Captive-audience meetings tend to be regarded as coercive by their very nature. Relatively neutral expressions of opinion may be tainted by conduct that casts that neutrality into doubt. Even a refusal to communicate can be intimidating if the silence can be interpreted as an implicit threat. Attention must be paid to the circumstances of the communication as well as its content.

For more information see:

I.B.E.W., Local 424 v. Stuve Electric Ltd., [1989] Alta. L.R.B.R. 69 (Alta. Lab. Rel. Bd.).
Simpe ‘Q’ Care Inc. v. H.E.U., 2006 CarswellBC 2942 (B.C. Lab. Rel. Bd.).
RMH Teleservices International Inc. v. B.C.G.E.U., 2005 CarswellBC 1933 (B.C. Lab. Rel. Bd.).

Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright’s Calgary office. He can be reached at (403) 267-8225 or [email protected]

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