Volume 2, Issue 3

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First LRB Decision re Use of Site in a Union Drive

John Mortimer
President, Canadian LabourWatch Association

This September 2002 BCLRB decision (B309/2002) discusses the use of LabourWatch during a union drive. The employer referred to the site in a memo to their employees. This first decision came 22 months after our website became available. The decision held that "nothing turns on the content of the site alone in this case". Further, ". . . the information on the website is neutral" by explaining the law but "is not pristine in its neutrality from the perspective that it is apparently limited to offering a countervailing view to … information an … union may be prepared to give employees."

We can find only positive outcomes in reading the parts of this decision that relate to us. This is even more significant given that the totality of the employer's conduct was held to be "some of the worst and most egregious acts" possible. Our content was, appropriately, not tarnished at all by the Board's findings regarding the employer's conduct, in spite of the Union's claims at the hearing. The Board ordered a remedial certification for the totality of conduct driven by the termination of three employees, all organizers and one of their friends.

It is likely that the Vice Chair didn’t see the first two paragraphs of About Us where we commend the excellent union websites employees can go to if they want a union, and link them to a section of our website that contains links to the Canadian Labour Congress and every provincial Federation of Labour. We do not duplicate what is already well done, just provide what is either not available or augment what is incomplete online.

“As indicated out the outset, The Brick admitted on August 30 before the Board that the dismissals were unlawful contrary to Sections 5(1), 6(3)(a) and 6(3)(b) of the Code. This admission and the Board's declarations and orders were published in BCLRB No. B287/2002. That decision was ordered to be distributed to all employees who had received the initial bulletin of August 29, 2002. The Brick attached a covering letter to the Board's decision indicating, among other things, that as an employer, it was limited to what it could say to employees. The Brick gave the dates of the continuation of the Board hearing and invited employees to visit a website: for more information about unionization. The Brick also invited employees to visit Local 15's website if they so chose.”

“Local 15 contended that was a virulent anti-union website. It invited me to take judicial notice of its contents and draw appropriate inferences. Local 15 led no evidence about the website's contents. The Brick denied that the website was anti-union. It said that it contained strictly neutral information and invited me to visit the site.”

“I did view the site at the invitation of both parties and find that it offers countervailing information to what employees might reasonably expect trade union organizers or representatives to disseminate during an organizing campaign. For example, as contended by Local 15, it offers detailed instructions on how to revoke union membership and how to initiate a decertification application in each jurisdiction in Canada. It does not apparently offer instructions on how to obtain union representation. I will comment more on this website below, but I can say at this point that nothing turns on the content of the site alone in this case.”

“I have more difficulty concluding that the memo distributed to employees on August 29 was intimidating or coercive. I have no trouble concluding that it was misleading and disingenuous. By that time The Brick knew it was going to face a hearing at the Board and that its chances of success regarding the dismissals was slim to none, yet it continued not only to profess its innocence, but to appoint itself as a defender of the employees’ right to vote having by its own admitted actions jeopardized that right in the first place. I suppose that one could say the audacity of such a pronouncement reflects a "nothing can stop us" attitude which, as argued by Local 15, was inherently intimidating.”

“Local 15 also argued that I draw just such a conclusion in view of the memo attached to the Board’s previous decision directing employees to the website. While the information on the website is neutral from the perspective of conveying information which is readily available in the Code, the Regulations and the Board Rules, or from the Labour Board’s Information Officer it is not pristine in its neutrality from the perspective that it is apparently limited to offering a countervailing view to what information an organizing union may be prepared to give employees.”

“Does such a reference then disclose an employer’s hidden displeasure with the activities of its employees seeking union representation and is it therefore coercive or is it protected by the amended Section 8? Whether either memo alone amounts to improper conduct is not something I need to decide in this case. It is sufficient in the present circumstances to conclude, as I do, that The Brick’s other conduct overall taken together with and in the context of the admitted improper four dismissals amounts to the most egregious conduct consisting of intimidation, coercion and interference that an employer can engage in during an organizing drive short of closing the business altogether. As such, I find The Brick has in total violated Sections 5(1), 6(1), 6(3)(a), 6(3)(b), 6(3)(d) and 9 of the Code by engaging in unfair labour practices.”


About LabourWatch - Informed Employees, Informed Choices

LabourWatch advances employee rights in labour relations. We provide resources on unionization to help employees make informed choices. The Canadian LabourWatch Association is a federally-incorporated, non-profit founded in 2000. LabourWatch's membership includes law firms and industry associations across Canada that provide financial and voluntary professional support for the organization's activities. LabourWatch encourages employers, particularly, to use the website in consultation with a labour lawyer.

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