CIRB Clarifies Employer Free Speech and Cracks Down On Union Intimidation
By Tim Lawson
In a unanimous decision, the Canadian Industrial Relations Board (the “CIRB” or “Board”) dismissed unfair labour practice complaints filed by the Canada Council of Teamsters (the “Teamsters”) against FedEx Ground. The only unfair labour practice complaint the Board upheld was filed by FedEx Ground against the Teamsters for using unlawful tactics during the campaign to suppress employee opposition to the union.
The Board’s decision is important because it squarely addresses employer free speech and union campaign misconduct, both top-of-mind issues for employers facing union organizing drives.
Employers Can Communicate Views On Unionization
The decision clarifies the Board’s approach to employer communication during a union campaign. The CIRB has arguably maintained the most restrictive view on employer communication of any Canadian labour board. That is now no longer the case. With this decision, the Board has brought its jurisprudence in line with most provincial boards, creating a virtually uniform approach.
In this case, the Teamsters alleged that certain employer communications to employees interfered with the union and coerced employees. In affirming the employer’s right to communicate its views about unions, the organizing campaign, the certification process, and collective bargaining, the Board considered provincial labour board decisions and its own jurisprudence to derive the following non-exhaustive principles:
- An employer is entitled to express its views and is not confined to mere platitudes.
- The fact that an employer does not want a union and expresses its opinion to that effect is not necessarily a violation of the Canada Labour Code (the “Code”).
- The Board must determine whether the employer’s conduct deprived employees of the ability to express their true wishes.
- Intimidation, coercion and undue influence in a labour relations context must involve some form of force, threat, undue pressure or compulsion, for the purpose of controlling or influencing an employee’s freedom of association
- The context in which the statements are made and the probable effect on a reasonable employee is important.
- Circulation of written material is the preferable mode of communication, as the written text is less intrusive than captive audience meetings or private discussion with employees.
Applying these principles, the Board concluded that the employer communications did not intimidate or unduly influence any employees, and that the content of each communication was employer free speech protected by section 94(2)(c) of the Code.
Unions Must Not Intimidate Opposing Employees
The employer filed a complaint against the Teamsters alleging that the Teamsters violated the Code by intimidating employees who did not support the union.
The Board found that the Teamsters “clearly intended to deter” and “silence” employees from “expressing their opinions” through intimidation and coercion. This conduct violated section 96 of the Code, and the Board ordered the Teamsters to cease and desist from these activities. We are not aware of another case where the CIRB has sanctioned a union under section 96 of the Code for this type of conduct.
Union Misled Employees to Gain Support
Also at issue in the case was a Teamsters press release that the Board found was intentionally designed to mislead employees into believing that the union had been legally recognized to represent the employees when it had not. The Board did not find a Code violation because the misleading communication did not, itself, have sufficient force, threat or pressure.
This decision has important implications for employers. Employers do not have to sit on the sidelines during a union organizing campaign. The Board will protect free speech and freedom of association, even when those freedoms do not align with the trade union. It is not, of course, open season at the Board on trade unions. Far from it. But this decision reminds us that labour boards can step in to ensure that during an organizing drive, it is not open season on employers and dissenting employees either.
While there is no doubt that this decision will influence future Board cases on employer speech, employers should always seek legal advice prior to issuing communications to employees during an organizing campaign.
The CIRB’s decision cited as Canada Council of Teamsters v. FedEx Ground Package System, Ltd (Document No. 294733, November 22, 2011) will be printed soon on the Board’s website: http://www.cirb-ccri.gc.ca