Whether, and the extent to which, an employer may communicate with bargaining unit employees during negotiations for a collective agreement has become more contentious in Quebec, of late. Decisions of the Quebec Labour Relations Commission and a very recent judgment, the Quebec Superior Court, suggest that an employer’s reasonable latitude of “free speech” during initial unionization attempts, that flow from earlier Labour Court decisions is far more limited during actual collective bargaining. Once certified, the Union becomes the units “exclusive bargaining agent” prohibiting the employer from negotiating directly or indirectly with the employees themselves, or, even trying to influence their relations with the union’s bargaining committee. Statutory certification pursuant to the Quebec Labour Code is meant to prohibit the employer from bargaining with voluntarily recognized “minority” unions, a possibility that is recognized in the United States and elsewhere in Canada. Ever since the Labour Code, in its current iteration, was adopted in 1969, voluntary certification is and was prohibited in Quebec. More and more, however, the QLRC has interpreted the union’s role as exclusive representative to mean that when an employer transmits even factual information as to the current state of bargaining to its own employees, with a view to having them put pressure on the bargaining committee, as infringing, the prohibition against “hindering the activities of a trade union” (Art. 12 L.C.) and/or “bargaining in bad faith” (Art. 53 L.C.).
In Provigo Distribution Inc. v. Syndicat des travailleurs(euses) en alimentation de Place Ruanda – CSN, 2013 QCCRT 0312, during conciliation, apprised that the union would be holding a meeting of employees on the Sunday, the company filed its last offer with the union’s bargaining committee on Friday afternoon. The offer had an expiry date, 24 hours after the scheduled meeting. It then posted a notice to employees on the store bulletin board advising that the offer was available for consultation in the cafeteria. Such behaviour was found to be designed to “hinder the activities of the trade union”, by interfering with the bargaining committees right to set and determine union strategy and the equivalent of bargaining in bad faith. The company was, amongst other things, ordered to cease and desist from communicating with the members of the bargaining unit about the current state of collective bargaining otherwise than by factual and objective account, although no such order was sought by the union.
The Company sought judicial review of the QLRC’s decision. Although the judgment of the Superior Court, 2014 QCCS 2179 (May 22, 2014) - found most of the QLRC’s decision to be reasonable in the circumstances, notwithstanding the company’s arguments to the effect that its Charter grounded rights of free speech had been compromised, it quashed the order not to disclose the current state of negotiations publicly, because it had not been sought by the union and therefore constituted an excess of jurisdiction. The Superior Court held that however broad the powers of the QLRC were pursuant to Article 118 L.C., including the right to issue any order that the Commission considers necessary to safeguard the rights of the parties, nothing in the law authorized it to issue unsolicited ad hoc injunctions proprio motu without allowing the parties to be heard on the matter and in this way, violate the rules of natural justice.
As it is unlikely that this case will proceed to an appellate review, it remains the latest restriction on how employers must conduct their collective bargaining. Strategically negotiating a good and fair collective agreement has become more and more of an acquired skill – even an art – in which professionals should be involved! Significant attention must be placed on how and when communications with the bargaining unit are to be considered. Otherwise, employers may face very substantial penalties.