Employees Thinking About Unionizing? Employers Use Caution When Communicating With Employees: By Melissa Beaumont, Thompson Dorfman Sweatman LLP

Oct 28, 2010 | Corporate Member News

For the most part, The Labour Relations Act protects the freedom of speech of individuals – which includes that of employers, too. Under The Labour Relations Act, an employer is not denied the freedom to generally express its views to its employees, so long as it does not use intimidation, coercion, threats or undue influence or interfere with the formation of a union.

In circumstances where employees are considering unionizing, therefore, employers must be careful that any communications made to their employees during this time are not only free of intimidation, coercion, threats and undue influence, but do not “interfere with the formation of a union”.

To interfere with the formation of a union could have negative consequences for an employer, as this may constitute an unfair labour practice. The consequences for an unfair labour practice could include, but are not limited to, being ordered by the Manitoba Labour Board to cease and desist any activity constituting the unfair labour practice or to pay to the union or any affected persons up to $2,000 each.

More importantly, an unfair labour practice in these circumstances could also result in the Labour Board granting an “automatic certification” to the union. In other words, if the Labour Board concludes that the employer acted inappropriately, it can certify a union even if the union does not have sufficient support from the employees.

So what is an inappropriate communication?

While an employer is free not to want a union, an employer is not free to express its negative views of unionization to its employees.

The Labour Board has rendered several decisions that deal with the issue of employer communication during a certification campaign. In Re Marusa Marketing Inc., the Labour Board set out the following guidelines:

  • When an employer communication issue arises, the first question a hearing panel must ask itself is whether the communication can be considered employer interference. In other words, could it affect an employee’s decision to join or support the union, or one union as opposed to another?
  • Statements do not necessarily need to be overtly negative or threatening to be considered interference. Statements about the union which may not on their face be negative – for example, statements describing the dues structure of a union – can be considered interference if the panel considers, on the facts of the particular case, that they convey a negative message.
  • In addition to the content of the communications, the panel considers how the statements were delivered to the employees. Examples include, but are not limited to, whether the communications were made to the employees in a threatening manner or in a setting that conveyed compulsion, or, whether the communications, whether written or oral, were made in a disparaging tone which conveyed a negative view of the union.
  • The panel must also examine the communication in the context of the particular case. The panel must weigh all the evidence and determine whether the negative communication, in the context of all the circumstances of the particular case, could likely influence an employee to reject the union.

The Labour Board also pointed out that it does not matter what the actual effect of the communication was – rather, the test is whether the average employee would likely be negatively influenced against the union.

So does that mean an employer cannot communicate with employees about its business?

Not necessarily. The Labour Board has also gone on to note that, if an employer’s communications do amount to interference, the next question to ask is whether the communications are statements of fact or opinion reasonably held with respect to the employer’s business. These types of communication are permitted under The Labour Relations Act.

For example, statements about the employer’s wage rates and benefits, or the economics of its business, might have a negative effect on the certification application, but they may not be considered interference if the Labour Board determines that they are statements of fact or opinion reasonably held with respect to the employer’s business.

On the other hand, statements about the union’s internal disciplinary process, or the manner in which the union deals with workplace issues, would not likely be considered to be facts or opinions reasonably held with respect to the employer’s business.

Of course, any communications where intimidation, coercion, threats or undue influence are involved, even subtly, would not be protected in any event.

So what can an employer say?

Although the rule is not meant to silence employers, employers must still be very cautious in communicating with employees during a certification campaign. At the end of the day it falls to an employer to determine whether there is any benefit in communicating information to employees. In other words, an employer will have to ask itself whether it should run the risk of having the communication successfully challenged, with the possibility of the Labour Board issuing a discretionary certification or granting some other remedy against the employer.

As can be seen, it is far from clear what types of employer communications “cross the line” between acceptable communications and interference with the formation of a union.

If you would like more information on this topic or wish to discuss issues of a legal nature, Melissa can be contacted by phone at 204.934.2515 or by e-mail at [email protected].

For assistance with this or any other labour or employment matter, please contact any member of the TDS Labour & Employment Practice Group.

DISCLAIMER:

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create solicitor-client relationship. The views expressed are solely the author’s and should not be attributed to any other party, including Thompson Dorfman Sweatman LLP (TDS), its affiliate companies or its clients. The author(s) make no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this article. The author(s) are not able to provide free legal advice. If you are seeking advice on specific matters, please contact Don Douglas, CEO & Managing Partner at [email protected], or 204.934.2466 but please be aware that any unsolicited information sent to the author(s) cannot be considered to be solicitorclient privileged.

Copyright 2010 – Thompson Dorfman Sweatman LLP

About TDS:

With the benefit of more than 100 years of service to Manitobans, TDS has become one of the leading full-service business, employment and civil litigation law firms in the Province, with approximately seventy-eight lawyers. TDS has lawyers who provide services to its clients in both official languages and also in Spanish, Portuguese, Italian, Russian and Greek. Our professionals are assisted by a support staff of about 100, including paralegals, legal assistants, law clerks, accountants, systems and human resource personnel. We occupy four floors at Winnipeg’s premier business address, Canwest Place, in the heart of the City’s business district. We encourage our clients to make use of our facilities which include numerous well-finished boardrooms of various sizes.

TDS has long been recognized as a centre of excellence in the areas of labour relations, employment law and civil litigation. Recently, LEXPERT® The Business Magazine for Lawyers recognized us as being the only Manitoba firm at the centre of its “Bulls-Eye” of firms practicing corporate law in the Province. For every challenge that confronts business people in this Province, we have the expertise necessary to develop creative solutions in a timely and cost-effective way. A number of our Partners have been recognized by LEXPERT® and THE BEST LAWYERS IN CANADA® as being among the best lawyers in the country in their particular areas of practice.

TDS was one of the founding members of Lex Mundi, The World’s Leading Association of Independent Law Firms and we continue to be its only Manitoba based firm. This organization, with its 160 firms, has members in every province of Canada, state of the United States and 100 countries throughout the world. Lex Mundi firms practice in more that 50 areas of law and, in order to qualify for and maintain membership, firms must meet strict quality control criteria. Lex Mundi has a no-cost, initial consultation policy that allow us, as a member firm, to obtain a preliminary understanding of the relevant legal considerations pertaining to our clients’ affairs in the various jurisdictions in which Lex Mundi has representative firms.

We have embraced technology as a means of providing clients with timely and efficient service. Our document management software allows us to quickly retrieve and modify documents and make efficient use of our knowledge base. We also subscribe to both the LexisNexis Quicklaw and WestlaweCarswell® services, being the premiere legal research databases available in Canada, which enable us to conduct detailed searches of legislation, decided cases from both courts and administrative bodies and scholarly articles published in legal journals throughout the western world, in order to ensure that the legal advice we provide to our clients is the most current presently available.®

TDS is rooted in the legal and business communities of Manitoba. We also encourage our lawyers to be significantly engaged in wider community matters and many have held and continue to hold positions of leadership in that regard. 

When you retain Thompson Dorfman Sweatman LLP, your initial contact may be with our Managing Partner, Donald G. Douglas. He will ensure your matter is referred to the lawyer with the most expertise in your field or, if necessary, he will assemble a team of lawyers to deal with the issue.

Acumen Corporate Development Inc. an affiliate of Thompson Dorfman Sweatman LLP, focuses on providing North American companies with a structured, comprehensive approach to the planning and execution of growth by acquisition, financing and other strategic opportunities. Acumen spearheads the corporate development function for businesses, providing the experience and resources required to achieve extraordinary results with ingenuity, insight and in-depth business intelligence.

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