The 2013 Decision of the Ontario Labour Relations Board (“the Board”) in the case of Service Employees International Union, Local 1 Canada v. PRP Senior Living Inc. (colloquially know as “the Sunrise Decision“) and subsequent application thereof has definitely caused some uncertainty in the employer community concerning the scope of the employer ‘right of free speech’ in the face of a union organizing campaign.
In the wake of the Sunrise Decision does Section 70 of the Labour Relations Act (“the Act”) still meaningfully recognize the right of the employer to express its views concerning unions and unionization or has the sun set on the ability of the employer to participate in the important unionization decision by employees?
Section 70 reads as follows:
” No employer…and no person acting on behalf of an employer…shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to 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.” (emphasis is added).
Those of you who are old enough to remember the 1970’s -1980’s era New York Yankee baseball teams under owner George Steinbrenner and Manger Billy Martin will recall that Billy was frequently tossed from ball games by the Umpire for his penchant for ‘excessive communications’ and over zealous remonstrations regarding on-field decisions.
Now admittedly not all of Billy’s advice to, and interactions with, the Umpire’s was objectionable per se.
Baseball Managers have a recognized right to question certain decisions and a certain degree of interruption of the game is tolerated and even expected as part of the game.
However, when Billy started to kick dirt over home plate or on to the Umpire’s shoes
or dig up the bases and remove them from the playing field altogether to make a point about his disaffection with ‘a call’, then, that led inexorably to an early shower for the Yankee skipper.
In other words there was a limit to the Manager’s freedom of expression and it was frequently the ‘cumulative effect’ of Billy’s tirades that generally resulted in his early excommunication from the baseball playing field. This became known in the parlance of the game as ‘the Billy Martin factor’.
The Sunrise case dealt with unfair labour practice allegations and a penalty certification application by the trade union in the face of a lost certification Representation Vote.
At issue in the Sunrise case were the following employer actions amongst others:
– a great many one-on-one meetings between Managers at all levels with employees in the workplace over a protracted period of time leading up to the Representation Vote;
– dissemination of a good deal of employer campaign related literature that was contentious, including at least one memo that was deemed by the Board to include inferential threats to employee job security if the union were to be certified;
– showing of an employer video on trade unions and their campaign tactics that was contentious; and,
– Town Hall meetings involving Senior Management immediately prior to the Representation Vote.
In the course of its Decision in the Sunrise case the Board offered some guidance, as follows, concerning what it views as the scope of permissible employer communications during a union organizing campaign:
1. The Board recognized that many of the employer’s actions and communications might have been permissible depending upon the context, although the Board found violations of Sections 70, 72 and 76 on the facts of the Sunrise case;
2. The Board clarified that it does not want to get into ‘policing’ propaganda of each party even where unfounded allegations of lying or similar misconduct are at issue. This will essentially be viewed as puffery by one party or the other, and the Board found this to be part and parcel of the democratic process;
3. The Board stated that an employer need not be neutral in a union organizing campaign (emphasis added);
4. Very Importantly, the Board states that the right of an employer to express its views is a “SUBSTANTIAL RIGHT” (emphasis added); and,
5. The Sunrise Decision is authority for the proposition that the ‘business as usual defense’ may protect the use of certain employer communications vehicles, channels and messaging during an organizing campaign if those vehicles, channels and messages have been in regular usage prior to an organizing campaign taking place. However, in the Sunrise Decision the Board held that the employer’s communications were “…out of the ordinary course…” and therefore offended the Act.
In the Sunrise Decision the Board effectively ruled that there are limits on employer free speech and that too much speech, in the workplace, where the topic is the trade union and particularly the employer’s views on unionization, can, in the context, amount to ‘undue influence’ in contravention of Section 70 of the Act.
The Board further asserted that Sunrise took “unfair advantage” of the access which it had to employees and the authority it had over the employees “…to sway the will of the employees…” on the issue of union representation. The Board further stated that a continual stream of one-on-one meetings is “…very disturbing…” to the Board in this context.
While there is no doubt that the Sunrise Decision, apparently unchallenged before the Courts, represents the high water mark on the limitation of employer free speech rights, it is very significant that, in its Decision, the Board took pains to express that it was “…the cumulative effect…” of the subject employer communications that tipped the balance against the employer in the Sunrise case.
In other words ‘the Billy Martin factor’ is very much a live issue on the legal playing field of the Ontario Labour Relations Board.