B.C. Employers Have More Rights to Communicate with Employees
Legal Affairs - Workplace Today®
The British Columbia
Labour Relations Board has expanded the scope of employers’ rights to communicate with their employees during a union campaign. A board panel issued a decision after reviewing the recent amendments to the provincial Labour Relations Code concerning the right to communicate.
A union alleged that a call centre committed a number of unfair labour practices that hurt its efforts to get employee support for a certification drive.
The union used several tactics during its organizing drive to try to persuade employees to sign up, including stationing union organizers at building entrances to talk to employees as they went in and out of their workplace; calling and mailing leaflets to employees at home; and placing leaflets on employees’ cars in the company parking lot.
The union had signed up just 17 of the estimated 650 employees and decided it would be difficult to persuade 45% of the workforce to join the union. It asked the company if it could hold a representation vote and the company refused.
The call centre responded to the organizing drive by issuing bulletins to employees in response to the union’s tactics and stationing a security guard next to the employee entrance when union organizers distributed leaflets. The company also responded to some employee complaints that the union was contacting them at home, by telling workers they would be dismissed if they shared another employee’s name, address, or telephone number with the union.
One bulletin contained the following statement from the company: “The union has been campaigning for over 13 weeks. One would think it would have the civility to leave people alone who obviously don't want to do business with them. It appears the union is hoping employees will sign a card just to have them go away. Doing so encourages this kind of behaviour. If you sign a card, you are legally indicating that you want to be represented by the union regarding all work-related matters. Signing a card to get the union off your doorstep is not the right approach. If an employee does not want to be represented by a union, they should not sign a card.”
One employee in particular was actively opposed to the union drive and she distributed a leaflet in the employee lunchroom and urged her co-workers to wear ribbons symbolizing their opposition to the union. She also confronted two union organizers once outside the employee entrance.
The union launched its complaint with the labour board, alleging the company was engaging in unfair labour practices that inhibited employees from signing their union card.
The employer felt that amendments to the Labour Relations Code in B.C. protects its communications with employees. The Code now reads, “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 employer says it did not engage in coercion and the company argued that its conduct was not responsible for improperly influencing employees against signing a membership card.
The board’s panel considered, among other things, whether the Code protects the employer’s expression of “unreasonable views or views critical of the union.”
The panel said that the amendments tipped the scale in favour of an employer’s freedom of expression; that the scope of permissible expression has been expanded to include “any matter” and does not require the expression be scrutinized against a standard of reasonableness.
The panel said that for views to be “coercive” or “intimidating,” they must involve the use of economic pressure, force, threats of adverse consequences, or fear or compulsion for the purpose of controlling or influencing an employee's freedom of association.
Although the employer’s views were critical of the union, they were not coercive, intimidating, or threatening, the panel ruled. The Code protects the right to express a preference to resist certification.
The panel did find that the employer violated the Code by threatening employees with dismissal if they shared employee personal information with the union and by stationing security guards near campaigners, because employees have the right to participate in the “lawful activities” of the union.
The panel also determined that the woman who actively opposed the union was not acting on behalf of the employer.
The employer was ordered to post the board’s decision for 14 days, provide a copy to employees upon request, and schedule paid staff meetings to allow the union to meet with employees for no more than 30 minutes, if the union so chose. The employer was granted a stay of the order to schedule paid staff meetings.
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