Anti-union letter crossed line: labour relations board

Alberta employer argued letter was protected by free speech, but board said parts of it simply went too far
|employmentlawtoday.com

An Alberta employer improperly interfered in a union organizing drive when it issued a letter to staff, the Alberta Labour Relations Board has ruled.

The board said Guardian Ambulance Ltd., a private ambulance company based in Red Deer County, crossed the line with portions of the letter it issued two days before employees were set to meet with the Health Sciences Association of Alberta (HSSA) to discuss unionization.

Tony Jones, an HSSA organizer, testified that on Jan. 10, 2006, he returned from vacation to find an e-mail from his supervisor passing on to him a lead about an organizing opportunity among Guardian employees. The e-mail said, “This should be an easy one, they’re all on board.”

Jones telephoned the employee contact and arranged a meeting on the evening of Jan. 26 at a local hockey rink. At the meeting, the employee contact showed Jones a letter from Lance Holly, Guardian’s president, and general manager Glen Holly. It was dated Jan. 24:

The full text of the letter

Dear Employee:

As you contemplate the feasibility of a union please consider the following:

A union will make many promises that may raise your expectations but they cannot guarantee them. Those promises only an employer can keep.

Our family does not believe in the merits of a union nor do our religious beliefs support its methods and ideologies. We believe it creates a barrier between employees and employers and promotes mediocrity. We strongly feel that it is our responsibility to look out for our own employees and it is our duty to recognize your value, not the unions.

Ask yourself honestly, have I been subject to unjust treatment? Am I really unappreciated? Are the working conditions ridiculous? Did I not willingly sign an agreement that clearly stated the conditions of employment? Have I not seen annual raises? Have there not been opportunities for advancement? Consider these points carefully when you hear the arguments for a union.

As most of you are aware we have been reviewing salaries as we do in January each year. Adjustments to your salary take place as of December 26, 2005.

Please make your individual opinion clear to us and your peers this week. Our relationships, salary flexibility, and the future growth of the company are placed in jeopardy with the increased costs that are associated with a union. We will not willingly sign an agreement with a third-party; our commitments are with each one of you individually.

Sincerely and heartfelt,

(Signed)

Fallout from the letter

At the Jan. 26 union meeting, a shift supervisor attended and showed Jones another copy of the letter. The supervisor told him he had been instructed to distribute the letter to employees at the meeting.

Jones was disappointed by the result of the meeting. About a dozen employees attended out of what he understood to be Guardian’s workforce of about 30. There was very little enthusiasm that he had understood there to be among employees. Only his contact and two other employees stayed after the meeting. Jones said these workers were supportive, but were in discomfort and expressed fear about what would happen next.

No worker signed a petition in support of certification, either at the meeting or after. Employees expressed no interest in another meeting. Jones said this was quite a different response than he is used to in initial organizing meetings.

The board’s ruling

The board said the employer in this case was not guilty of discriminating against employees for exercising a right under the

Labour Relations Code

as the union charged.

“The employer did not discipline or penalize any employee or alter terms and conditions of employment in any way that might constitute ‘discrimination’ because of exercising that right,” the board said.

The union also charged that Guardian interfered with the representation of employees by a trade union, contrary to s. 148(1)(a)(ii) of the code. The board saw some merit in this complaint.

The board rejected a submission by Guardian that the union had to bring evidence that the letter had an actual negative effect upon employees.

“The test the board applies to cases involving communications that are alleged to have interfered with a union’s organizing efforts is a purely subjective one: What is the likely effect of the employer’s conduct upon employees of average intelligence and fortitude?” the board said.

Requiring evidence of actual impact upon one or more employees amounts to the introduction of a subjective element into the test, it said.

“In our view, this is unnecessarily strict and contrary to sound labour relations principles because it would hold out the prospect that the employer that most thoroughly intimidates its employees, to the point that none are willing to testify, would be the employer most secure against a remedy from this board,” it said.

Employer pleads free speech

The employer argued the letter was a valid exercise of employer free speech protected by the code.

While the board said much of the letter was indeed a valid exercise of free speech, parts of its crossed the line.

It was critical of two aspects of the sixth paragraph. The statement, “We will not willingly sign an agreement with a third party” would be understood by the ordinary employee as a threat that Guardian would not make reasonable efforts to enter into a collective agreement with a union.

“That is, the employer would not abide by its obligation of good-faith bargaining imposed by the

Labour Relations Code

,” the board said.

While the employer argued the sentence was simply informing employees that it would not voluntarily recognize the union, the board said that simply wasn’t what the sentence said.

“That is not what it says, and no ordinary employee would likely grasp that nuance in any event,” the board said. “The message is that selecting the union as bargaining agent is not only unwise (an opinion) but futile (a threat).”

The board also had a problem with the opening sentence — “Please make your

individual

opinion clear to us and your peers this week.” It said that sentence would be understood by an ordinary employee as one or both of two things: an invitation to declare one’s representational wishes to the employer or an exhortation to employees to influence their fellow employees in favour of the employer’s position.

The board admitted it was possible to interpret this sentence as the employer said it should be — a neutral invitation to engage in the representational debate.

“But given the overall context and tone of the letter, we think it highly unlikely that an ordinary employee would understand this sentence that way,” the board said.

Remedy

The board ordered Guardian to cease and desist interfering in the union’s representational activities. It ordered the employer to post notices to employees, in a form provided by the board, advising them of its decision and attaching a copy of the decision. The notices were to be posted in conspicuous places at each of the employer’s locations for a period of 21 days and not obscured or defaced.

But the board rejected a bid by the union to recover its organizing costs. While the board has the power to award such costs, that type of remedy is reserved for cases of “egregious and repeated or lengthy misconduct,” it said.

“We have not been convinced to alter that approach in this case. This breach of the code does not fall into the category of egregious misconduct, and we consider that the remedies of a cease and desist order and a posting are adequate,” the board said.

For more information see:

H.S.A.A. v. Guardian Ambulance Ltd.

, 2006 CarswellAlta 796 (Alta. L.R.B.)

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