A recent decision from the British Columbia Labour Relations Board (the “BCLRB”) provided clarity on what employers can communicate to employees during union certification. In Homewood Health Inc. (Homewood Ravensview), 2024 BCLRB 87 (“Homewood”), the Union claimed that the employer contravened the BC Labour Relations Code (the “Code”) when it emailed two memoranda to workers during the union certification process. The Board disagreed.

The Facts

The employer operates several mental health and addiction services treatment centres across the province. The Union applied to the BCLRB for certification to represent a bargaining unit of employees at one centre.

Following notification of the Union’s application for certification, the employer emailed two memoranda to workers’ personal email accounts.

The first memorandum, sent on February 1, 2022, included content that:

• Encouraged employees to vote regardless of their opinion;
• Informed employees that unions must negotiate with the company as to what they will provide the employees;
• Notified employees that union dues will have to be paid by everyone in the bargaining unit; and
• Assured employees that they do not have to speak to union representatives if they are approached.

The second memorandum, sent on February 4, 2022, included content that:

• Referred to the employer’s disappointment that some employees wished to unionize;
• Referred to the “us vs. them” culture that the unionization process had allegedly created in the workplace; and
• Referred employees to the LabourWatch website if they wanted more info.

The Union claimed that the memoranda violated sections 6(1), 6(3)(d), and 9 of the Code.

The Law

Section 6(1) of the Code prohibits an employer from participating in or interfering with the formation of a union but does not require the employer to have anti-union motivations.

Section 6(3)(d) of the Code prohibits an employer from attempting to prevent a worker from becoming a member, officer, or representative of a union though intimidation or threats. Unlike section 6(1), section 6(3)(d) does require the union to prove the employer’s conduct was inspired by anti-union sentiments.

Section 9 of the Code prohibits employers from using coercive or intimidatory conduct that could reasonably be expected to either induce workers to join a union or prevent them from becoming a member, officer, or representative of the union.

The Decision

The BCLRB found that the employer had not contravened the Code and dismissed the Union’s application. The Board considered the contents of the two in light of the situation as a whole, which included the objective impact of the employer’s conduct, the effect of the interference, and the employer’s business reasons for the interference. The Board also relied on evidence provided by a manager at the centre who, with the aid of legal counsel, drafted and sent out the memoranda.

a. Delivery Method

The Union claimed that the memoranda constituted intimidation and coercion contrary to section 9 of the Code because the emails were sent directly to the workers, depriving them of the choice as to whether they wanted to receive the memoranda.

The Board found that the employer’s method of delivery did not force the workers to open or even to read the memoranda, such that the emails did not constitute intimidation or coercion.

b. LabourWatch

The Union claimed that by referring workers to the LabourWatch website for information, the employer engaged in intimidation and coercion. The Union claimed that LabourWatch was not a neutral website but rather contained anti-union messaging.

The Board found LabourWatch to be a portal with links to all manner of union-related content, including links directly to specific unions and Canadian Labour Boards. While the website did contain information pertaining to the decertification process, the employer did not specifically reference this content. In the absence of a specific, anti-union section of the website being mentioned in the memorandum, the Board found the employer had not engaged in intimidatory or coercive conduct related to LabourWatch. 

c. Regarding the “us vs. them” statement

The manager’s evidence indicated that the statement was based on his personal experience at the centre. The Board found the statement was not an unreasonable opinion provided that tensions can be common in unionizing workplaces, and did not find this statement violated the Code.

d. Statement regarding the employer’s disappointment

The Union argued that by stating that the employer was disappointed at the prospect of unionization, the employer meant that they were displeased and felt betrayed by their employees. The manager’s evidence contradicted this and portrayed the employer as disappointed or saddened that employees were unhappy with the workplace.

The Board found that the statement was not a threat pursuant to section 6(3)(d) because in the same memorandum, the employer also stated that they would respect the process, regardless of the outcome.

e. Union dues and negotiation statements

The first memorandum contained statements confirming that all union members will have to pay union dues and that the conditions of employment will be subject to negotiations between the Union and the employer. The Union claimed these statements were inaccurate and misleading.

The Board disagreed and found that the statements were accurate and did not suggest any anti-union motivation on the part of the employer. The Board recognized that there are few requirements for a collective agreement beyond the mandatory payment of dues and nearly everything else is subject to negotiation.

Takeaways

In Homewood, the careful drafting of memoranda helped the employer avoid a finding that they violated the Code. However, this decision is also a reminder to employers that there is a fine line between sharing information with the intention of keeping workers informed and engaging in conduct that could be seen to be contrary to the Code.

While this is a BC decision, and therefore not binding in other jurisdictions, similar provisions and resulting constraints on what employers can say in the context of a response to a union certification drive exist in other jurisdictions, including Ontario.

Employers are reminded that while it is not a violation of the Code to distribute factual and accurate information meant to inform workers, the technical discussion are complex and nuanced. As such, employers are encouraged to seek legal advice prior to communicating with the workforce regarding unionization.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.