Talking Union isn’t Harassment: Union Organizing Drives, Harassment Complaints and the Duty to Investigate

It’s not harassment to ask anti-union co-workers to sign a union card during a union organizing campaign according to a recent Ontario Labour Relations Board case argued by Sarah Molyneaux.

Sarah represented Brian, a pro-union employee who wanted to unionize his workplace. Although Ontario employees have the legal right to unionize without employer interference, Brian found himself repeatedly disciplined after he began working to bring the union in. After just a few weeks, he found himself suspended without pay for 10 days when coworkers complained that he’d harassed them by repeatedly asking them to support unionization. Brain had refused to participate in his employer’s harassment investigation since he believed it was illegal and knew that union cards were confidential.

When the union complained to the labour board that the employer had violated Brian’s rights, the employer too the unusual step of bringing its own complaint against both the union and Brian.

The employer unsuccessfully argued that it was legally required to investigate the harassment complaints and that Brian’s suspension was legal, since he’d harassed co-workers, violated the confidentiality of the harassment investigation and exposed the complainants to reprisal at work.

What is Harassment?

This was the first time an Ontario Labour Relations Board decision has addressed whether unwelcome organizing efforts are harassment and the extent to which employer’s are required to investigate harassment complaints against inside organizers. While the Ontario Labour Relations Act doesn’t expressly make it illegal to harass employees during an organizing drive, it does ban the use of intimidation or coercion.  It also permits employers to impose discipline for misconduct (like harassment), if the decision to discipline has nothing to do with an anti-union animus or motive.

The decision confirms that not all unwelcome or uncomfortable conversations are harassment. Harassment is a “course of vexatious comment that the harasser knows or ought to know is unwelcome.” This is a good thing for inside organizers, since union organizing drives often lead to uncomfortable conversations between pro-union and anti-union workers.

Since Brian had a legal right to try to unionize his coworkers, repeatedly asking them or even pestering them to join the union couldn’t be “vexatious.” This also means that he couldn’t be inferred to know that exercising this right was unwelcome. The Labour board found no evidence that Brian kept trying to convince any co-workers after they told him they didn’t want to unionize – and no evidence that either complainant actually feared for their health and safety because of Brian organizing efforts. In fact, nether complainant even reported that they feared for their safety.

Can Employers Investigate Harassment Complaints Related to a Union Organizing Drive?

The decision doesn’t go so far as to ban employers from investigation harassment complaints against union organizers. Instead, it found that the employer was wrong not to consider the implications of a harassment complaint directly related to a union organizing campaign.  

However, it does criticize the employer’s decision to investigate in this case. It notes that the employer learned about which employees did or did not support the union’s organizing drive through its investigation. The decision confirmed that Brian was right to refuse to answer his employer’s questions about his union organizing efforts during the harassment investigation, since that information is confidential.

At the same time, the Labour Board took issue with the employer’s demand that Brian keep the harassment investigation confidential and with its decision to discipline Brian for telling another union organizer about the harassment complaint. In the Labour Board’s words, this was an attempt to “create a wall” between Brian, other union supporters and the union itself. It was an attempt to prevent the union and is supporters from discussing relevant information about the organizing campaign.  

Conclusions

In this case, the Board found that the investigation and discipline illegally interfered with the union’s organizing drive. The employer was ordered to rescind his suspension, to pay back Brian’s lost wages and to pay its employees to attend a one-hour meeting with the union at the workplace. The union has since filed an application for certification.

Harassment is a serious workplace problem. And, an employer has a duty to respond appropriately to harassment complaints by employees. However, the appropriate response won’t always be to conduct investigation interviews. The duty to investigate doesn’t free an employer up to disregard an employee’s right to keep their support for a union a secret if they choose. After all, both anti-harassment rules and the Labour Relations Act’s protection of the confidentiality of union cards are there for the same reason-to protect workers. They aren’t there to give employers an excuse to retaliate against employees who try to unionize just because it makes some of their coworkers uncomfortable.

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