On September 13, 2022, the Administrative Labour Tribunal (“ALT”) issued a significant decision[1] regarding the application of section 12 of the Labour Code. Section 12 prohibits, among other things, an employer from interfering with the activities of an employee association.
Context
In this case, the union representing the employees filed a complaint against the employer, a company specializing in packaging products, for interference with union activities. The union criticized the employer for communicating directly with its employees about the collective agreement negotiations. In response to a union pamphlet that addresses a specific issue of the collective agreement negotiations, the employer sent a written communication to all unionized employees.
When the complaint was filed, the negotiations were being finalized. The collective agreement would be renewed in July 2021. However, in the midst of completing the last drafts, the parties disagreed with the interpretation of an article in the collective agreement which delayed its signature.
As a result, the union posted a pamphlet for its members to inform them of the situation stating:
This is why the employer does not want to sign your contract renewal and why your back pay due on August 1st will be delayed. Please note that we are in solution mode (at least from the union’s part) and that we are currently waiting for the employer’s response for a meeting to resolve the impasse. We want to sign your contract renewals as soon as possible.
A few days later, the employer posted a press release in response to the union’s flyer. In order to clarify the situation and correct certain information, the employer wrote:
We remain available for an immediate signature. We do not want to renegotiate the agreement that was reached, as requested by the union. The union’s proposal to reopen the discussions with corporate for this amount three months after everything is finalized risks jeopardizes our very favorable and coveted position for investments of a new press.
We are available this afternoon and we agreed to meet the union representatives for a couple of hours but unfortunately, they declined our offer.
From the union’s point of view, the employer is obstructing its activities, while the latter maintains that it acted within the limits of freedom of expression which is protected by the Charter of Human Rights and Freedoms.
In addition to the employer’s press release, the union also criticizes the employer for circulating a petition created by unionized employees who were unhappy with the union’s decision to reject the amended preliminary agreement.
Although the union acknowledges that the employer did not initiate the petition, it claims that two employer representatives contributed to its creation by facilitating the petition signing in the supervisors’ office, by publicizing its existence and by suggesting that the union president was associated with it.
The Decision
First, the ALT noted that section 12 of the Labour Code does not deprive the employer of its freedom of expression guaranteed by the Charter of Human Rights and Freedoms and, consequently, does not prevent it from communicating directly with its employees, particularly when it is engaged in a collective bargaining process with the union representing them.
However, the employer’s freedom of expression must respect certain guidelines that are well established in jurisprudence, namely:
1. Employers must not make any direct or indirect threats.
2. Employers must not directly or indirectly make any promises so that employees will adopt employer’s point of view.
3. Employers must make truthful statements, not intended to deceive.
4. Employers must address people’s thoughts and not arouse their emotions, especially contempt. Avoid any outrageous or sentimental style.
5. Employees must be free to not listen or receive this message.
6. Employers shall not in any way use their authority as an employer, on the basis of the subordinate relationship established with the employees, to propagate their opinions against unionism.
The ALT concludes that the union did not demonstrate by a preponderance of evidence that the employer violated any of the aforementioned criteria in its press release. The employer was informing employees of its perception of the negotiation process whereas the union was blaming the employer for not honoring its commitments and for not wanting to sign the collective agreement.
The ALT reiterates that the employer has a right to set the record straight and respond to inaccurate statements, which it did in this case. It goes on to say that “the union cannot be the only one to enjoy freedom of expression and to occupy the entire field of speech during collective agreement negotiations.
Finally, the ALT clarifies that although the union’s pamphlets and the employer’s press release may have exerted pressure on the union, this was not sufficient to show that its activities had been obstructed or attempted to be obstructed.
As for the employer’s involvement in the petition signing, the TAT held that the actions of the two supervisors were isolated. It was a thoughtless mistake, not a gross negligence:
[64] Based on case law and doctrine, the Tribunal considers that section 12 of the Labour Code does not cover mere faux-pas committed by employer’s representatives without the employer’s knowledge. The offence was not ordered by the employer and the employer had no knowledge of it.
In light of the above-mentioned, the union’s complaint under section 12 of the Labour Code is dismissed.
[1] Union des employés et employées de service, section locale 800 c. Compagnie WestRock du Canada Corp., 2022 QCTAT 4159.
