Publication

BC Labour Relations Board Retreats from Earlier Position respecting Communications during Union Organizing Drives

While the BC Labour Relations Board has acknowledged employers' expanded rights to communicate with their employees as set out in Section 8 of the Labour Relations Code, it has now placed certain limits on those rights. Employers may comment on their reasonably held beliefs about unionization, but they may not use "forced listening" techniques to share those views during a union organizing drive.

Section 8 was amended in 2002 to read as follows:

Right to communicate

8. 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.

In June 2003, the US-based RMH Teleservices Inc. changed tactics in response to the BCGEU's then one year old effort to organize call centre employees. In order to send out its message, the employer distributed "gifts" of Frisbees, sand pails, chocolate bars and water bottles. All of these items bore messages directly related to the certification application. The employer also held meetings, and projected large messages on the walls of the call centre about unionization. These projected messages could be readily viewed by employees at their workstations. The Union described these activities as a "US-style political campaign" against unionization.

The Union complained to the Board that the employer's behaviour amounted to an unfair labour practice. In a decision released in late 2003, the original panel held that recent changes to section 8 of the Code greatly expanded an employer's right to communicate with its employees during an organizing drive. Employers were free to express views about unionization provided that the content of messages was not coercive or intimidating. The panel further held that the employer's views in this case were not coercive or intimidating even though the employer was criticizing the union. "[I]n the absence of coercion or intimidation, views expressed as part of a campaign [to resist a union] are protected by section 8 and do not constitute interference for the purposes of section 6(1)." As a result, the Union's complaint was dismissed.

The Union appealed and, on July 8, 2005, a five-member panel of the Board released its decision[i] which in large part overturned the original decision. The Board held, in particular, that RMH's "forced listening" tactics were coercive because they deprived employees of their fundamental right to choose whether or not to be represented by a union. RMH was outside the protection of section 8 as a result.

The Board's decision was informed by a comprehensive review of the development of section 8. The panel expressly recognized that the 2002 amendments to section 8 were intended to increase the scope of permissible employer communications during an organizing drive. An employer is allowed to communicate honestly held beliefs about unionization to its employees; however, the mode of communication may cause problems.

The Board commented that the 2002 Code amendments represented a "legislative choice that employers have an interest in unionization which gives rise to a right to express views about unionization beyond [previous] limits." However, the exercise of that right cannot be at the expense of employee choice which remains "the fundamental premise of the Code."

The Board held that the Code is meant to address the inequality in bargaining power that exists between an employer and its employees. That is why section 8 continues to restrict communications that are intimidating or coercive. Intimidation or coercion occurs when an employer seeks to compel an employee to make a particular decision about unionization. Employer views which would not otherwise be considered to be intimidating or coercive become so if the employer removes the employees' right "not to listen". The Board said:

Section 8 does not guarantee an audience. The right of expression under section 8 does not entail a right to compel others to listen to those views. A reasonable employee who has no choice but to listen to an employer's views regarding unionization may feel coerced or intimidated...

Based on these principles, the Board held that RMH's projection of information on the walls of the call centre during work hours was "coercive and intimidating" because the images were "so prominent, persistent, and impossible to miss that employees . would inevitably have been forced to view them or . consciously turn away from them." The content of the message was permissible, but became coercive and intimidating due to the manner of expression. In a similar fashion, the Board held that, although the "gifts" distributed by the employer were not valuable, they were improperly intrusive and persistent in the overall context and thus not protected by section 8. The Board upheld the original panel's finding that employer meetings with employees did not breach the Code because attendance at those meetings was voluntary.

This decision is important because it confirms that employers have important and expanded rights to communicate with their employees during union organizing campaigns and can express views related to unionization itself. However, an employer must allow employees to choose whether or not to listen to its views. Forcing employees to receive an employer's view may lead to a successful complaint of unfair labour practice.

[i]. RMH Teleservices International Inc. v. B.C. Government and Service Employees' Union, BCLRB No. B188/2005 (Leave for Reconsideration of BCLRB No. B345/2003).

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

For further information, please contact one of the following lawyers:

Matthew Cooperwilliams (604) 806-3852
mcooperwilliams@ogilvyrenault.com

Patrick Gilligan-Hackett (604) 806-3860
phackett@ogilvyrenault.com

Muriel Henry (604) 806-3828
mhenry@ogilvyrenault.com

Jennifer A. Jamieson (604) 806-3847
jjamieson@ogilvyrenault.com

Graeme M. McFarlane (604) 806-3859
gmcfarlane@ogilvyrenault.com

Thomas A. Roper (604) 806-3850
troper@ogilvyrenault.com

Delayne M. Sartison (604) 806-3851
dsartison@ogilvyrenault.com

Kim G. Thorne (604) 806-3854
kthorne@ogilvyrenault.com

Michael A. Wagner (604) 806-3853
mwagner@ogilvyrenault.com

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