Focus On

Labour Law - Unfair labour practices - By employer - Bargaining in bad faith - Improper communications with employees - Interference with employee’s rights - Intimidation or coercion

Thursday, February 02, 2017 @ 7:00 PM  


Appeal by the employer Health Authorities from a decision allowing the respondent unions’ application for judicial review of a decision of the Labour Relations Board. The unions had alleged that the appellant had engaged in unfair labour practices due to the appellant’s communications campaign during labour negations involving press releases, letters, a website and posters. The unions alleged the appellant violated s. 11(a) of the Trade Union Act (Act) by interfering with and coercing employees in the exercise of their rights under the Act and s. 11(1)(b) by failing to bargain in good faith. The appellant believed that a 2008 amendment to s. 11(1)(a) of the Act had granted an expanded right for employers to communicate facts and opinions to their employees and it exercised that right in the 2008 round of bargaining. The Board held that the 2008 amendment effected what might be called a re-appreciation of the robustness of employees and of how vulnerable they were to intimidation and coercion. The Board dismissed all complaints except a complaint under s. 11(a) for misrepresenting retroactive pay issues. By way of a remedy, the Board enjoined the appellant from further violating the Act. The Board concluded that the appellant had a right to communicate both with health care workers and the public about the status of its bargaining proposals and found that, but for the misleading commentary concerning retroactive pay, the appellant’s communications had not offended the Act. The Chambers judge found several aspects of the Board’s approach to the alleged violations unreasonable and ordered the Board to reconsider its decision except for its finding of the s. 11(a) violation. The appellant argued that the judge erred in applying a more rigorous standard of review than reasonableness and by substituting his own conclusions for those of the Board.

HELD: Appeal allowed in part. The Board’s decision in relation to the direct bargaining issue was set aside and remitted to the Board for reconsideration. The Chambers judge’s criticisms of the Board’s approach and analysis were unfounded. In effect, he conducted a correctness review of the Board’s decision and substituted his view of the law and the facts for the assessments of the Board. He erroneously concluded that the Board’s decision on s. 11(1)(a) was unreasonable. The Board properly interpreted the 2008 amendment to mean that the mere fact an employee might be influenced by employer communications should not automatically lead to a breach of s. 11(1)(a) and by indicating that, absent evidence of an unusual power imbalance in the workplace, it would not presume employees were inherently or inevitably susceptible to being intimidated or coerced by employer communications. The Chambers judge did not err in concluding the Board acted unreasonably in failing to find the appellant had engaged in direct bargaining. The Board appeared to have taken a view of employer-employee-union relationships that involved an unprecedented and unreasonable characterization of the role of unions in the collective bargaining process. The Board’s decision-making on the direct bargaining point was constructed on a conceptually-flawed foundation that employers and unions were equal third party actors. The Board acted unreasonably to the extent it saw the 2008 amendment as somehow weakening or diluting the prohibition against direct bargaining that existed by virtue of s. 11(1)(c). The Chambers judge also correctly decided that it was appropriate to set aside the Board’s remedial order and refer the question of an appropriate remedy for the breach of s. 11(1)(a) back to the Board for reconsideration.