Lecture 21: Employer Speech
During organization, employer often wants to persuade employees not to opt for
unionization
National Labour Relations Board v. Federbush Co. 1941 USA USA USA
o free speech is not absolute, and can be limited at times
o speech can connote power relationships
o employer speech can be both expression and coercion
o speech which from the outside seems fine may have a connotation of threat,
and can be limited
In some parts of Canada employer has the right to free speech, providing it must not
use threats, promises, or undue influence.
United Steelworkers of America v. Walmart Canada [1997] OLRB
Facts
basically management canvassed organizing employees for questions, but would not
answer questions about whether the store would close
also allowed anti-union employee to speak during mandatory meeting, but would not
let pro-union employee speak since customers were arriving.
Analysis
speech from anti-union employee problematic
o company did not distance itself from her speech, stating that it was not
reflective of the employer's position
o particularly important because she had said job security would be in question
if the store unionized. Silence may have been a implied statement that this
was so
o by letting her speak at an official meeting, without distancing itself from her
remarks or allwoing a pro-union response, this had the effect of intimindating
or influencing employees
o An employer simply cannot allow an employee to make a speech containing
the subtle threats to job security at an official, management run meeting, fail
to clarify, then refuse to let the union speak.
Daily meetins and circulation of MGMT reps sent a message that the company was
strongly against the union
o employers can't hide behind open door policies when the effect of this is to
intimidate the employees.
Must consider the effect of WalMart's open policy in refusing to answer questions as
to store closure.
o failure to answer go around the store.
Where employer solicits questions, it must naswer them
o if you can't answer questions, don't solicit them.
Employer knew chilling effect of silence on union, but continued to solicit questions.
o clearly employer can't say the store will close, but it could have assured the
unoin the store wouldn't close
Ratio
failure to answer questions may constitute a threat o so soliciting questions then refusing to answer about a closure is a very riskiy
practice
employer needs to be careful about allowing anit-union speech, not not pro-union
speech
remedy here was automatic certification
o this remains a remedy in BC
o but in Ontario, this remedy was removed
in this case, once certified Walmart just dug-in and refused to conclude bargaining
o eventually since no progress was being made and some of the organizers
moved on, the union was decertified
Employer Free Speech Clause
BC has a clause that allows the employer to express itself on any topic as long as it
doesn't intimidate
this includes the right to express your opinion on unionization as long as you aren't
coercive or intimidating
o although, one might wonder whether anti-union speech from emplo
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