In a 2014 decision, the Ontario Labour Review Board (OLRB) finds that an employer violated section 70 of the Labour Relations Act (the “Act”) by making statements that amounted to “coercion, intimidation, threats, promises or undue influence” in relation to a unionization effort, and awards a remedy of automatic certification under section 11 of the Act.
The case involved an application for certification filed by UA Local 787 (the “Union”) pursuant to the construction industry provisions of the Act. Shortly after filing the certification application, the Union filed an application to be certified for a bargaining unit of non-construction employees of Service Experts. Subsequently the employer—Service Experts Heating & Air Conditioning Inc.—made statements and disseminated information regarding the potential financial impacts of unionization on the company. The employer discussed, among other things, the potential increased costs of operations as a result of unionization and the highly competitive nature of the industry in their respective region, specifically highlighting the fact that unionization would not ensure job security if Service Experts could not secure contracts as a result of inflated costs of operation brought about by unionization. The non-construction certification vote subsequently failed, and the Union filed an application for a remedy under section 11 of the Act. Throughout the course of the case the Board found that a number of comments made by Service Experts were based on flawed financial analyses and unsubstantiated assumptions regarding the highly competitive nature of the industry. Moreover, the Board found that the Company made these statements with the intent to have employees believe that union certification would lead to job loss. Both of these findings lead the Board to conclude that the true wishes of the employees were not reflected in the representation vote and would not be reflected by another vote because once the threat of job loss has been communicated to employees, there is no way for the Board to undo this damage. In order to remedy the situation the Board automatically certified the Union pursuant to section 11 of the Act.
Union certification is a complicated process that operates on the backdrop of the employees’ right to freely choose union representation and employers’ right to freedom of speech. Traditionally, the OLRB has paid close scrutiny to employer statements regarding the impact of union certification, especially when these statements allude to potential job loss. This is due in part to the unequal bargaining power between employers and employees, and also due to the fact that employees typically have no way of confirming the truth of an employer’s statements regarding the financial operations of their business. Employees rely heavily on employers for their livelihood and are often at a disadvantage when it comes to understanding complicated business and legal matters. As a result, the Board will not only look at whether an employer’s statements are accurate, but also whether they are made with the intent to unduly influence employees by fostering a fear of job loss. It is possible that even perfectly true statements made by an employer can be ruled unlawful if it is found that the employer’s motivation was not to inform employees but rather to scare them into thinking that job loss might result if they unionize.
Case Citation: Service Experts Heating & Air Conditioning Inc. v UA, Local 787, 2014 CarswellOnt 18973, 251 CLRBR (2d) 1.