February 20, 2015
UNFAIR LABOUR PRACTICES
Scope of Employer Communication During Union Organizing
The scope of permissible employer communications with employees during a union organizing campaign is difficult to define precisely. It is important to note that restrictions on employer communications are effective at the very beginning of a union’s organizing drive, even before an application for certification is filed. Recent amendments to the Code have further restricted employer speech during union organizing campaigns. The following guidance applies:
- An employer may communicate to an employee a statement of fact or opinion reasonably held with respect to an employer’s business.
- An employer’s communication must not be intimidating or coercive.
- Coercion is defined as any effort by an employer to invoke some form of force, threat or undue compulsion for the purpose of controlling or influencing an employee’s freedom to participate in union activities.
- The employer’s right to communication does not extend to encouraging employees to take a certain course of action in relation to a union organizing drive, nor does it extend to an employer’s attempt to discover which employees signed membership cards.
Both the content and the communication methods used by the employer will typically be considered.
Conduct during the certification process
When an application for certification is pending, an employer may not declare a lockout, increase or decrease rates of pay, or alter terms or conditions of employment of employees affected by the application without the Labour Relations Board’s written permission. This is sometimes referred to as a “statutory freeze.” This freeze also affects your right to suspend, transfer, lay off, discharge or discipline an employee. Such action cannot be taken unless you can establish that you had proper cause.
Furthermore, you or a person acting on your behalf are prohibited from participating in or interfering with the formation, selection or administration of a trade union, or contributing financial or other support to it.
You are prohibited from doing anything that could interfere with the right of your employees to join a union or have union representation. Specifically, you must not seek to compel or to induce an employee to refrain from becoming or continuing to be a member or officer or representative of a trade union by any of the following means:
- threat of dismissal
- any other kind of threat
- imposition of a penalty
- wage increase
- alteration of any other terms or conditions of employment
Most significantly, you must not use pressure of any kind that could reasonably influence a person to avoid joining or to quit being a member of a trade union. The board is more likely to find coercion and intimidation where the party exerting the pressure has the capacity to take action that would directly affect the employees concerned.
The entire context of the statement or conduct will be examined when determining whether an employer has exerted unfairly forceful pressure or made an unfair threat of adverse consequences.
Conduct such as that described above is known as an “unfair labour practice.” If you have any doubt about the permissibility of certain contemplated conduct, you should seek legal advice prior to engaging in such conduct.
The Code also recognizes and protects certain employer rights. These rights include:
- the right to discharge, suspend, transfer, lay off or otherwise discipline an employee for proper cause;
- the right to make a change in the employer’s operation that is reasonably necessary for the proper conduct of business; and
- the employer’s freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer’s business, provided that it does not use intimidation or coercion.
Properly exercising any of these rights, even during a union organizing drive, will not normally result in an unfair-labour-practice finding if they are exercised in good faith and for legitimate business reasons. However, if the exercise of any of these rights is motivated by animosity toward the trade union, then it will be characterized as an unfair labour practice and the union may seek certain remedies. The onus is on the employer in unfair-labour- practice proceedings to prove that anti-union animosity did not form any part of the reason for taking the challenged action. This is a hard thing to prove.
In particular, the dismissal, layoff, suspension or discipline of employees involved in organizational campaigns — particularly immediately prior to a representation vote — often gives rise to an allegation by the union of unfair labour practice. As noted above, the onus on the employer to prove that such action was not prompted in any part by anti-union animosity, and the additional requirement of proper cause, make such actions by an employer during an organizing drive extremely vulnerable to attack.
Conduct during bargaining
The most typical unfair-labour-practice complaint during bargaining concerns allegations of a failure to bargain in good faith. Bargaining in good faith means meeting with the other side, exchanging bargaining proposals and making a sincere attempt to reach an agreement. This does not mean that you must agree with the other side’s proposals to avoid an unfair-labour-practice complaint. However, you must not engage in a deliberate strategy to avoid reaching an agreement, as such a strategy will be deemed bad faith bargaining and contrary to the Code. You must also not attempt to bargain directly with employees.
In the absence of an obvious violation of the Code, the board has generally adhered to a longstanding practice of restraint in terms of its interference with the bargaining process. The board’s reluctance to intrude into the bargaining process is at its highest where the parties are in a longstanding bargaining relationship and where the parties are committed to reaching a collective agreement.
Typically, when one party disputes the accuracy of a communication issued by the other party, the appropriate response is for the complaining party to put out its own communication to employees, rather than file a complaint at the board.
Unfair labour practices committed by unions
Just like employers, unions are prohibited from committing unfair labour practices. For example, unions are prohibited from organizing employees at the employer’s place of business during working hours without the employer’s consent. However, this does not mean that employees are prevented from discussing the merits of unionization and distributing union literature during the lunch hour or other work breaks.
The Code gives the board a wide range of remedial powers. These include the power to:
- direct the person to cease doing the act complained about;
- direct any person to rectify the act;
- direct reinstatement of an employee with back pay if the unfair labour practice involved a dismissal;
- direct the employer not to increase or decrease wages or to alter a term or condition of employment of the employees affected by the order for a period not exceeding 30 days without written permission of the board;
- hold a new vote to ascertain the true wishes of the employees;
- allow the union access to its premises under specified conditions so that the union may communicate freely with all employees without employer interference; and,
- automatically certify the union if the board believes it is just and equitable in order to remedy the consequences of a prohibited act.
For more information concerning unfair labour practices, employer communication and the related topics discussed above, explore the following on the Board’s website:
- Guide to the Labour Relations Code – Chapter Three – Rights, Duties and Unfair Labour Practices
- Labour Relations Code – Part 2 – Rights, Duties and Unfair Labour Practices
- Labour Relations Board – The Trade Union Certification Process
- Labour Relations Board – Employer’s Guide to the Union Certification Process
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.