FAQ's Cases - Stewart McKelvey

28. . .eliminates insignificant conduct, since trivialities will not likelyinfluence an average employee’s ability to freely express hiswishes. It also necessitates an inquiry into the particularcircumstances of each case, because it recognizes thatthe effect of an employer’s words and conduct may varydepending upon the situation.The employers’ communications were directed to theemployees as a group and made no effort to isolate them fromeach other or from their union representatives who had readyaccess to the picket lines.The Board heard a great deal of evidence regarding allegedinaccuracies in the written communications. It finds that thefirst and second communications were substantially accurate,and that in the circumstances they did not likely interfere withthe average employee’s ability to form his own opinion or toreach his own conclusions. Nor were they of the kind thatcould reasonably support an inference of improper employermotive.[emphasis added]2011 CanLII 72774 (SK LRB)[122] Similarly, the Alberta Labour Relations Board uses an objective test to determinethe impact of an employer communication on employees. In The National Automobile,Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) Local No1227 and E.D.O. Canada Limited, 29 the Alberta Board says at p. 13:In evaluating a complaint of this nature, the Board must determine whether theemployees were capable of freely expressing their true wishes in arepresentation vote. The Ontario Board in Greb Industries Limited andTeamsters Local 879 et al., [1979] Can LRBR 56 set out the Ontario Board’sapproach to determining the effects of the conduct upon employees. Theburden of proving the complaint that the conduct has deprived the employees ofthe ability to freely exercise their true wishes rests upon the party alleging thebreach, in this case the CAW. The Board must look at the objective facts ofwhat occurred and draw reasonable inferences as to what is the more probableeffect of this conduct upon the employees in all the circumstances. This is anobjective test. The Ontario Board’s approach is to determine the likely effect ofthe conduct upon the employee of average intelligence and fortitude. We adoptthis approach.[123] Also, at page 12 of that decision, the Alberta Board referred to an earlier boarddecision in International Brotherhood of Electrical Workers v. Stuve Electric Ltd. et al. 30 with29 [1992] Alta L.R.B.R. 20230 [1989] Alta L.R.B.R. 69 at 75