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Lecture

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Department
Justice Studies
Course
JS380
Professor
Stefan Idziak
Semester
Winter

Description
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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