Canada: The Union Drive Playbook: How Far Is Too Far

In two recent decisions the Ontario Labour Relations Board (the Board) addressed when automatic certification was appropriate in view of employer conduct during a union organizing drive. In its Sunrise decision, the Board ordered automatic certification as a result of unfair labour practices committed by the employer. The employer's strategic reaction to the union's organizing campaign, as outlined in detail by the Board, provides a guide for employers against going too far when faced with potential unionization.

In another decision within the context of the construction industry, the Board denied remedial certification despite allegations the employer stalled the union's organizing drive, and was responsible for its failure to obtain the required 40% membership support.

Sunrise

The employer in this case, part of the international Sunrise Senior Living group (Sunrise), learned that union cards had been signed by employees working at its seniors' assisted living centre in Aurora, Ontario. As a result, Sunrise management immediately leapt into action. From the moment Sunrise learned that the union cards had been signed until the day of the vote, senior management and executives of Sunrise took action to "fight back" against the union.

Senior management and executives from the United States descended on the workplace in Aurora, as soon as they became aware of the union organising activities, with the clear intention to keep the workplace "union free". Their actions included a continuous series of one-on-one meetings between senior management and employees to ascertain the employees' views about the union and discuss operational issues with them. Considerable personnel and resources were dedicated to this exercise. In response to feedback received from employees during the one-on-one meetings, changes to staffing schedules occurred almost immediately, although there was evidence that management had been aware of the issues raised by employees for some time prior to the union drive. Sunrise also promised to make additional adjustments to respond to employees' concerns going forward.

In addition to the one-on-one meetings, the union alleged the following inappropriate behaviour on the part of the employer:

  • Videos, bulletins and letters were provided to employees on multiple occasions which suggested that union members would lie or mislead employees. Some of the materials provided by Sunrise also called into question employees' job security.
  • Town Halls meetings were held on two occasions to discuss the union. At one such meeting, the Chief Executive Officer of Sunrise came up from Sunrise's head office in the United States to attend and address the employees.
  • Two employees were terminated during the union organizing campaign. One, who was supportive of the union, was terminated for sleeping on the job. The other employee was terminated, according to the Sunrise Regional Director of Operations for Ontario, "because she caused the conditions to start the union in the first place".
  • Upon receiving two cakes from the union, Sunrise management placed the cakes in the employee lounge with a note that read "eat at own risk".
  • Employees were offered a free taxi ride and one hour's pay if not scheduled to be at work on the day of the vote. The same bulletin advertising this also encouraged employees to vote "No".

There were no material issues of credibility with respect to the evidence put before the Board, because, as the Board noted, much of the evidence came from the employer's own admissions.

The Board found that, although some of Sunrise's actions may not have been unlawful when viewed in isolation, when viewed as a whole, it was clear that the employer was exerting undue influence on the employees, contrary to Section 70 of the Ontario Labour Relations Act (the Act), which provides that:

"No employer...shall participate in or interfere with the formation...of a trade union ..., but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence."

In coming to its decision, the Board emphasized that it was the cumulative effect of the employer's actions, especially given the small size of the bargaining unit (approximately 75members), that rendered its actions offside of the Act.

The Board made it clear that an employer was not required to remain neutral during an organizing campaign, and further that "arguably unfair references" made by an employer to "union lies or distortions" would necessarily be grounds for intervention by the Board. Rather, as the Board aptly put it: "the average employee is an intelligent citizen quite capable of sorting out fact from fiction".

However, the Board did take issue with the scope and scale of Sunrise's response to the union, which it found was designed to undermine the union. Considerable emphasis was placed by the Board on the timing and number of one-on-one meetings held to discuss the union. Also of significance was the extent of the involvement of senior people at the organization, including the Chief Executive Officer of Sunrise and several other Sunrise employees who were based outside of Canada. This, together with the employer's other communications to employees, were found to be "well out of the ordinary course of business in Aurora and were motivated in the first instance entirely by the arrival of the [union]".

Based on the evidence, the Board found that the initial vote likely did not represent the true wishes of the employees. This conclusion was largely based on the employer's own admissions, including email correspondence between senior managers, which stated quite clearly that, but for the steps taken by management to defeat the union, Sunrise would not have "won the vote". The Board also decided that ordering a new vote would not be effective, given Sunrise's actions, the fact that almost a year had gone by since the initial vote and that, in the Board's view, the union would not be able to counteract the employer's undue influence. Accordingly, the union was granted automatic certification.

In addition to certification, the Board awarded further relief due, in part, to the fact that the union would need to "recover the confidence of the employees and to embark upon collective bargaining in difficult circumstances". This further relief included directing Sunrise to:

  • Post a notice of the Board's decision and the employee's rights in the workplace for 60 days.
  • Permit two representatives of the union to meet with employees three times on each shift. Sunrise was further directed to pay employees during their attendance at those meetings, including reasonable taxi expenses.
  • Provide access to employee bulletin boards to enable the posting of union notices.
  • Permit a union video to be shown in the workplace for a period of two weeks.
  • Provide the union with a list of names, addresses, phone numbers and email addresses of bargaining unit employees.
  • Provide reasonable notice of and access to meetings of employees called Sunrise.

Gabriel

In the second decision we mentioned above, the union alleged a variety of unfair conduct on the part of the employer, Gabriel Excavating & Grading Limited (Gabriel), consisting of: (i) improperly pressuring employees to reveal whether or not they had spoken with the union or were supporting the organizing drive; (ii) increasing the monitoring of its worksite and holding a mandatory captive audience meeting; (iii) intimidating or coercing employees; (iv) promising benefits in exchange for not supporting the union; and (v) penalizing two employees that were perceived as supporters of the union.

In reviewing the evidence before it, the Board found the union's various allegations unsupportable for the following reasons:

(i) Improperly pressuring employees

A junior employee alleged that the principal of the employer, DeAcetis, inquired as to whether he had been approached by the union, whether he had signed a membership card, knew what was happening, or if he had divulged to the union the location of the job sites. DeAcetis denied the allegations, and as the totality of his evidence indicated that he was cautious about statements made during the organizing drive, the Board preferred DeAcetis' evidence and found it unlikely that he would have blatantly requested the information alleged, particularly of a relatively new employee.

(ii) Increased monitoring and captive audience meeting

The union alleged that the employer increased its monitoring of the worksites during the organizing campaign. DeAcetis' evidence was that he always visited the worksites on a daily basis and continued to so during the period of union organizing. As the union was unable to contradict DeAcetis' position that his pattern of conduct had not changed, the Board determined that the allegation was unfounded.

Allegations of a "captive audience" meeting were also rejected by the Board. While those employees forming the proposed bargaining unit did meet at a set date and time at the employer's shop for the purpose of discussing the organizing drive, the fact that DeAcetis was not present, the brevity of the meeting (ten minutes) and the lack of employer orchestration led the Board to determine that the meeting was not a contravention of the Act. However, and of interest, the meeting leader prepared notes of what was said at the meeting, and passed the notes and a list of attendees on to DeAcetis, who accepted and read them. The Board found that while imprudent, this transfer and acceptance of information was not a contravention of the Act.

(iii) Intimidation or coercion of employees

Allegations that the employer attempted to intimidate or coerce employees by linking a decision to seek unionization with the loss of work, including hours and overtime, were unfounded, as the union was unable to call any positive evidence at the hearing. Accordingly, the employer's denial of the allegations was accepted.

(iv) Promises of raises and benefits

Again, the union was unable to call evidence to support its allegation that the employer promised to increase wages and benefits if the employees chose not to unionize. As a result, the allegation was not substantiated and rejected by the Board.

(v) Penalization of perceived union supporters

The layoff of two employees, Miccolli and Bettencourt, were alleged by the union to be a penalization for their support of its organizing efforts. The employer disagreed, and provided a version of events demonstrating that the layoffs were entirely independent of the organizing drive.

Miccoli, a fuel truck driver, had complained numerous times about the fumes in the cab of his vehicle. To assess the validity of the compliant, DeAcetis assumed Miccoli's duties and drove the vehicle for a number of shifts. During this time, Miccoli requested his Record of Employment and left the employer. DeAcetis testified that management did not believe Miccoli to be a union supporter, and as such the allegations must be false. The Board accepted the employer's evidence, and concluded that Miccoli's layoff was unrelated to the organizing drive.

Bettencourt, an excavator operator, was bumped out of his job when another site was shut down and more senior operators were redistributed to his worksite. DeAcetis testified that it was the employer's practice to allow senior operators to bump junior operators when necessary. Shortly after being bumped out of his job, Bettencourt requested his Record of Employment, which DeAcetis took to mean that he had resigned his employment. While the Board accepted that the employer was aware of Bettencourt's support of the union, it determined that his layoff was due to normal business practices, and not a retaliatory action by the employer.

Our Views

The holistic approach taken by the Board in the Sunrise case is interesting and reminds employers (and their counsel) that, while it might be tempting to toe the line of legally permitted behaviour in response to a union drive, one can push matters too far. As in many things in life, moderation is the best policy.  The spirit and intent of the Act must be considered in deciding how far an employer should go to convince its employees to "vote no". Specifically, the Act is intended, in part, to facilitate collective bargaining and to enable employees to designate a representative to do so, without being coerced, intimidated or unduly influenced by their employer

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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