Employer’s conduct during organizing campaign survives labour relations board scrutiny
Previously printed in the LexisNexis Labour Notes Newsletter
In Vanderpol Eggs Ltd. –and– Teamsters Local Union 213, BCLRB No. B165/2014, the Teamsters Local Union 213 (the “Union”) alleged that Vanderpol Eggs Ltd. (“Vanderpol”) had engaged in unfair labour practices during the Union’s campaign to organize Vanderpol’s employees. Specifically, the Union alleged that Vanderpol had breached sections 6(1) and 6(3)(d) of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”), which prohibit an employer from interfering with the formation, selection or administration of a trade union, and seeking to compel or induce an employee to refrain from becoming or continuing to be a member of a union.
The Union’s certification campaign commenced when a Vanderpol employee, Liz Ducsay, began to distribute information about the Union to other employees. In response, management immediately issued a letter to employees which contained the following statement:
Once again, I want to emphasize that you are free to join or not join any organization. The law also protects your rights to refrain from engaging in union activities and you do not have to talk to a union organizer. You are protected from threats, restraint or coercion by the union or its agents inside or outside the company. If you feel you are feeling threatened or forced into something you do not want, please contact your supervisor …
Several months later, Ms. Ducsay placed union materials in the locker room and lunchroom. She was told by the plant manager soon afterwards that distributing union materials was illegal and she was not to do it on company time. She was told that if she continued, she would be disciplined. Undeterred, Ms. Ducsay again placed union materials in the locker room and lunchroom. Management removed the materials and replaced them with copies of another letter. The letter contained the following statements:
Unions often make big promises to try to get workers to sign membership cards. If they are making promises, ask them to put them in writing. The reality is they cannot guarantee anything aside from the fact that you will have to pay union dues. If they were to be certified, all terms and conditions of employment, including wages and benefits, would be up for negotiation. There is no guarantee you would even retain the things you have now …
The B.C. Labour Relations Board (the “Board”) applied a contextual approach to assess the appropriateness of Vanderpol’s conduct during the Union’s organizing campaign. The Board considered the content of Vanderpol’s communications with its employees, and the cumulative effect of Vanderpol’s conduct on the employees.
The Board confirmed that an employer can express its views on unionization to its employees during the course of an organizing drive, so long as it does not do so in a way that is coercive or intimidating. The employer must do so, in other words, without the use of force, threats, fear or compulsion for the purpose of controlling conduct.
The Board held that Vanderpol’s communications with its employees were not coercive or intimidating. Specifically, it was permissible for Vanderpol to state that terms and conditions of employment were not guaranteed and would be the subject of bargaining, and that unions cannot guarantee everything they promise. Importantly, Vanderpol had not editorialized on the Union’s promises. Moreover, the interactions between Ms. Ducsay and the plant manager were not in the nature of coercion or intimidation because the view expressed by the manager was his genuine view about the limitations on the activities of trade unions in the workplace. These communications were protected by section 8 of the Code.
In the result, the Board dismissed the Union’s application in its entirety.
Takeaway for employers
- The Code places limitations on what an employer can say and do during an organizing campaign. It is crucial to be aware of these limitations.
- An employer can express its views on unionization to its employees, so long as this is done without coercion or intimidation.
- Board decisions such as this one provide employers with concrete examples of what can and cannot be said to employees during an organizing campaign.
- The consequences of engaging in an unfair labour practice can be severe. Although the Board has a range of remedies available to it, if the Board is satisfied that a union would have obtained the requisite support to certify the employees but for an unfair labour practice, the Board may automatically certify the union without a vote.