As we have previously blogged about here, the British Columbia Labour Relations Code (the “Code”) which governs labour relations in unionized workplaces, was recently amended effective May 30, 2019. The amendments included placing narrower restrictions on employer speech in respect of labour relations issues.
Between 2002 and the recent amendment, section 8 of the Code said:
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.
Section 8 now reads:
Nothing in this Code deprives a person of the freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer’s business.
The new section 8 is obviously narrower in scope than the previous section 8, but what statements are permissible as pertaining to “the employer’s business”? As it turns out, the “new” section 8 language is not new at all – it is identical to the language of section 8 in effect before 2002. Accordingly, there is no need to speculate on how the Labour Relations Board (the “Board”) will interpret this language – there are already Board decisions under the pre-2002 section 8 language which provide guidance.
The Board engaged in a comprehensive discussion of section 8 in Cardinal Transportation B.C. Inc., BCLRB No. B344/96. In that case, the Board articulated its policy respecting section 8 as follows:
(a) Employers have a general right to express their views. However, to fall within section 8, communications must be either statements of fact or opinions reasonably held regarding the business.
(b) The definition of "business" in section 8 includes statements concerning all aspects of managing the business, including collective bargaining matters; however, it does not generally include statements concerned with union membership. “Business" does not include negative comments about unions in general.
(c) An employer's statement can influence the choice of an employee provided it is protected by section 8 (or does not in any other way contravene the Code).
(d) An employer’s statement may not amount to coercion, which is defined as any effort by an employer to invoke some form of force, threat, undue pressure, or compulsion for the purpose of controlling or influencing an employee's freedom of association.
(e) Captive audience meetings will be given a strict level of scrutiny. Statements that would otherwise be permissible may, in the context of a captive audience meeting, be impermissible.
(f) An employer is not entitled to engage in an anti-union political-style campaign in an effort to prevent the union from certifying.
In Cardinal, the Board noted that greater restraint is placed on employer speech at the initial stage of collective bargaining than when collective bargaining rights have become more established.
Effectively, under the new (and pre-2002) Code, employers may not comment to employees about unions generally or even the employer’s view of the particular trade union that is seeking or that holds representational rights at its workplace except to the extent that the employer’s comments are based on a reasonable belief about the impact of unionization on its business. In making such comments, the employer must ensure there is a reasonable basis for making such comments – for example, an employer may not simply state that the entire business will collapse if a union is certified unless there is some objective basis for believing that to be true.
Employers should make extra efforts to bite their tongues under the newly amended Code, which also provides the Board with discretion to award remedial certification to a union that has lost a certification vote if the union can show that the employer violated section 8, even without the union proving that, but for the employer’s illegal comments, the union would likely have won the certification vote.
The lawyers in Lawson Lundell’s Labour, Employment, and Human Rights Group would be pleased to advise your business in respect of appropriate communications during (and following) a union certification drive.
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