On July 8, 2005, the B.C. Labour Relations Board issued its long-awaited reconsideration decision in RMH Teleservices International Inc., dealing with employer free speech under amendments to section 8 of the Labour Relations Code. The decision has introduced the concept of “forced listening” to determine whether otherwise acceptable employer expressions of views during an organizing drive can be considered coercive or intimidating and thereby a violation of the Code.
In RMH, the union commenced an organizing drive at the employer’s call center and the employer began its own campaign to inform employees of its views on unionization. The employer used a number of different methods to get its message to the employees including : holding meetings; providing employees with gifts, including frisbees, note pads, water bottles, chocolate bars and sand pails bearing messages about unions and unionization and projecting messages (without sound) essentially against unionization on a slide show on a large screen in the middle of the call center. The union claimed these methods constituted an unfair labour practice.
In the high water mark for employer free speech, the original panel confirmed that the amendments to the Code provided employers with significantly increased latitude regarding communications with employees during union organizing drives. The original panel dismissed all but one of the union’s unfair labour practice complaints, finding that the employer’s blanket prohibition on the display of union insignia constituted a contravention of the Code.
While the reconsideration panel agreed that the amendments to section 8 of the Code include a broadening of expression rights in the workplace, it held that section 8 does not guarantee an audience. Further, the rights under section 8 do not entail a right to compel others to listen to those views.
In determining whether the expressions in this case fell within the scope of section 8 and were therefore protected, the panel considered both the context and the manner in which the communications were expressed. The panel summarized its view as follows:
- The expression of views by an employer, including views about unionization, is not necessarily inconsistent with free choice. However, where an employer expresses its views on unionization in a manner that effectively forces employees to listen, this manner of communicating views may render otherwise permissible expression coercive or intimidating. In each case, both the content and the methods used must be considered.
Applying this approach, the panel found that the slide show and gifts were in breach of the Code, in that they forced employees to listen to the message conveyed. The slide shows were found to be prominent, persistent and impossible to miss, thereby in essence forcing the employees to view them. The gifts were also found to be improperly intrusive and persistent, despite their marginal value. The matter of remedy for the breaches was remitted back to the original panel.
Although the decision has restricted the manner of communications during an organizing drive, it is important to note the panel’s comments on written campaigns by employers. The panel held that the legislative intent of the amendments to the Code was to “broaden employer expression rights and to further informed choice.” Accordingly, if an employer campaign takes place in written form and the views are not in themselves intimidating or coercive, the mere fact that the views expressed are anti-union will not be sufficient to render them coercive or intimidating.