Union Organizing Campaigns: When will the Ontario Labour Relations Board Intervene?
After the vote, it was made clear to the Labour Relations Officer who was taking the vote that CHCW intended to file an unfair labour practice (ULP) complaint with regard to SEIU’s organizing campaign conduct. The complaint was based on the foregoing allegations:
- numerous misrepresentation or falsehoods circulated by representatives regarding the operation of the CHCW;
- misinformation regarding the legal impact of the decertification of SEIU;
- misrepresentations and defamatory statements regarding the character of the CHCW leadership, such as the president of CHCW committed fraud; and
- SEIU intimidated employees at the CHCW meeting before the representative vote took place.
The Ontario Labour Relations Board’s Decision
To begin their analysis, the Board reinforced the general principle that employees are reasonable and sensible with the ability to make decisions in their own self interest, and therefore do not require intervention. Nevertheless, the Board, in their consideration, outlined the exceptions to this general rule. The exceptions include, not having “meaningful opportunity to reply and thus to impair the employees' freedom of choice and thereby call into question the weight to be accorded to the results. It is not every unanswerable claim which will cause the Board to intervene. However, in those instances in which a claim is made, which is in fact false and which relates to a significant factor which would be involved in the voter's final evaluation of the issue on which he is voting, and which the other party has not had adequate opportunity to dispute, the Board will act by ordering a new representation vote.” (page 8 citing Graduate Assistans’ Assn. v. McMaster University, OLRB Rep. 685 at para 11). Further, the Board may intervene when false allegations interfere with an employee`s ability to assess critically their options and therefore able to cast a representative vote But this usually does not include campaign propaganda which is misleading, exaggerated or false.
We have no jurisdiction to award compensation for or punish publishers of defamatory statements. The jurisdiction lies elsewhere. Our concern is with a vote in which employees were asked to say whether they wished to continue to be represented by the respondent.
Although Board Member Rundle agreed with Vice-Chair Kelly, she took the time to note that “[t]his is as ugly an inter-union cat fight as one can imagine.” (p. 11). Despite this characterization, she explained that the Board’s role in the application for certification process is a supervisory one and not as an arbiter of campaign fighting. The focus of the Board is to protecting the entitlements under the Act and not settling squabbles and in-fighting which does not interfere with these entitlements.
The Board places a large amount of confidence in an employee’s possession of all the faculties necessary to make a decision despite any campaign propaganda. Meaning, it is advisable for competing union organizing campaigns to take steps to combat any misconceptions or misrepresentations before the representative vote, rather than wait and hope for the Board to intervene retroactively.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.