Reasons for decision
Hamlet of Kugaaruk,
complainant,
and
Public Service Alliance of Canada,
respondent.
Board File: 27909-C
Neutral Citation: 2010 CIRB 511
April 20, 2010
The Canada Industrial Relations Board (the Board), was composed of Mr. Graham J. Clarke, Vice-Chairperson, and Messrs. John Bowman and Andre Lecavalier, Members.
Section 16.1 of the Canada Labour Code (Part I - Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this complaint without an oral hearing.
Parties’ Representatives of Record
Mr. Paul N. K. Smith, for Hamlet of Kugaaruk;
Ms. Heather Longstaff and Ms. Shannon Blatt, for Public Service Alliance of Canada.
These reasons for decision were written by Mr. Graham J. Clarke, Vice-Chairperson.
I - Nature of the Complaint
[1] The Hamlet of Kugaaruk (Hamlet) filed an unfair labour practice complaint concerning an email the Public Service Alliance of Canada (PSAC) had sent to certain Hamlet employees at their work email addresses.
[2] In the Hamlet’s view, this email involved union solicitation during working hours in violation of the Code.
[3] PSAC argued that its communication did not constitute an attempt to persuade the Hamlet’s employees to become its members.
[4] In the specific circumstances of this case, the Board has found that PSAC’s email did not violate the Code. These are the reasons for that conclusion.
II - Facts
[5] On August 31, 2009, the Board received a certification application from PSAC for an all-employee bargaining unit at the Hamlet.
[6] On November 18, 2009, the Hamlet sent a letter (November Letter) to its employees commenting on PSAC’s certification application. The Board in Hamlet of Kugaaruk, 2010 CIRB 502 (Kugaaruk 502) described the contents of the November Letter:
[7] On or about November 18, 2009, Mr. Tigvareark distributed a letter to all of the Hamlet’s employees. In that letter, Mr. Tigvareark suggested that the Hamlet’s employees might lose the benefit of certain work practices by certifying PSAC as their bargaining agent:
To our understanding, you may loose the following by join the Union .
1. No more Christmas Bonus
2. No more Turkeys at Christmas
3. Shopping anytime during working hours
4. being late
5. Maybe loose payroll advances .
6. Missing days with out good reason.
7. Not working when you are suppose to be working after you punch your time.
8. Taking day off with out two weeks notice , like going on the land or by boat any day .
9. You will also loose to ability to come straight to the management, you will have to go through your union representative[sic]
[8] Mr. Tigvareark also wrote in his letter that “by joining the union you may get better pay, less freedom and may lose other benefits.”
[7] PSAC learned of the existence of the November Letter on December 17, 2009.
[8] On December 23, 2009, PSAC filed an unfair labour practice complaint contesting the November Letter. In Kuugaruk 502, the Board issued a declaration that the Hamlet’s letter, although revoked by a later letter which included an apology, nonetheless constituted an unfair labour practice.
[9] PSAC sent its contested January 5, 2010 email to the Hamlet’s employees to respond to the November Letter.
[10] PSAC’s email stated:
This is to advise you that the Public Service Alliance of Canada has filed an Unfair Labour Practice against the Hamlet for the letter that was sent to all employees threatening to take away things if you voted for the Union. Their actions are against the law and we are taking them to court. As you know your employer has fought the union every step of the way and does not want any casuals in the union. The process has taken so long because your employer hired a lawyer in Yellowknife who has been trying to stop you from having a union. We should receive a decision in the very near future. I only have some of your emails so please share this information with others. I will send a letter out to everyone advising of the processes asap. Please don't lose faith as we will accomplish our goal of getting you a collective agreement as soon as possible. It is unfortunate that your employer has been anti union all the way.
I will advise of the outcome as soon as I know
thanks for your patience[sic]
[11] On January 27, 2010, the Board received an unfair labour practice complaint from the Hamlet alleging that PSAC, by sending the email to Hamlet’s employees, violated sections 95(d) and 96 of the Code:
95. No trade union or person acting on behalf of a trade union shall
...
(d) except with the consent of the employer of an employee, attempt, at an employee's place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of a trade union;
...
96. No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union.
[12] The Hamlet argued that PSAC violated section 95(d) of the Code by sending the email during working hours, using the Hamlet’s email system, but without its consent. The Hamlet characterized the email as an attempt to persuade the employees to become PSAC members. The Hamlet further alleged the same facts caused a violation of section 96 of the Code.
[13] The Hamlet requested a declaration, inter alia, that PSAC had violated the Code and other remedies relating to PSAC’s future contact with employees.
[14] PSAC argued that its email did not seek to persuade employees to “become, to refrain from becoming or to cease to be a member of a trade union” as these terms are used in section 95(d) of the Code.
[15] PSAC reminded the Board that it had already filed its membership card evidence with its August 31, 2009 certification application. On March 12, 2010, while this matter was ongoing, the Board certified PSAC for an all-employee bargaining unit (Order no. 9824-U).
[16] PSAC requested the Board to clarify, if necessary, its entitlement to communicate with employees during an organizing campaign by way of an employer’s email system.
[17] PSAC also disputed that the Hamlet had the requisite status to raise section 96 of the Code.
[18] On February 17, 2010, the Board received the Hamlet’s reply. The Hamlet argued that the email was clearly an attempt to persuade the employees to join PSAC since it referenced PSAC’s desire to obtain a collective agreement and also commented on the Hamlet’s attempt to exclude casuals from the proposed bargaining unit.
[19] The Hamlet also alleged that PSAC’s representative is a “person” for the purposes of section 96.
III - Analysis and Decision
a) Did PSAC violate section 95(d) when it communicated with the Hamlet's employees via their workplace email address?
[20] In Canadian Broadcasting Corporation, 2003 CIRB 250 at paragraph 65, the Board summarized the specific mischief at which section 95(d) is aimed:
[65] ... Seen in its context, section 95(d) is aimed at a very specific situation. That situation is the situation where the trade union or person acting on behalf of a trade union is attempting to persuade an employee to either become or refrain from becoming a member of a trade union. The section is aimed at ensuring that this is not done at the work place during working hours in a manner that interferes with an employee`s work...The matter that is the subject of the prohibition is solicitation during working hours to either cease being a member of a trade union or to join another trade union in a manner that disrupts the work. As a first point, if the specific wording of the section is considered, it is apparent that it does not address the possibility that a trade union may attempt to persuade employees to continue to be a member of that trade union. It is the attempt to persuade to “become, to refrain from becoming or to cease to be a member,” only that are prohibited.
[21] Despite PSAC’s invitation for the Board to comment if a trade union can use an employer’s email system during its organizing campaign, the Board’s decision in this case can be determined on a much narrower basis.
[22] In August 2009, PSAC filed its membership evidence in support of its certification application.
[23] In Kuugaruk 502, the Board found that the Hamlet’s November Letter constituted an unfair labour practice, even though the Hamlet corrected itself in a subsequent January 8, 2010 letter, which included a written apology.
[24] PSAC’s January 5, 2010 email in the instant case directly responded to the Hamlet’s November Letter.
[25] The Board is satisfied that PSAC’s email was not an attempt to persuade the Hamlet’s employees to become PSAC members. First of all, PSAC had already filed its membership evidence, in August 2009, for its certification application.
[26] Under section 28 of the Code, the Board routinely considers membership support as of the date of the certification application:
28. Where the Board
(a) has received from a trade union an application for certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropriate for collective bargaining, and
(c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent,
the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.
(emphasis added)
[27] In addition, PSAC’s email responded to the Hamlet’s November Letter. The Board sees a distinction between a letter responding to an employer’s comments about the possible consequences of joining a trade union and a letter soliciting union membership.
[28] For these reasons, the Board dismisses the Hamlet’s complaint that PSAC’s email violated section 95(d) of the Code.
b) Did PSAC violate section 96 when it sent the email using the Hamlet’s email system?
[29] In line with the above reasoning, the Board is similarly of the opinion that PSAC’s email was not sent, as section 96 would require, to “compel a person to become or refrain from becoming or to cease to be a member of a trade union.” Rather, PSAC simply responded to the Hamlet’s November Letter warning about the changed terms and conditions of employment employees could expect were they to choose PSAC as their bargaining agent.
[30] Given this finding, the Board does not need to examine the parties’ other arguments about whether the Hamlet had the capacity to raise section 96 in its complaint.
[31] For the above reasons, the Hamlet’s complaint is dismissed.