Tribunal decision involving Amazon highlights need for factual messaging, manager training and 'respecting employees' right to choose'
In a recent decision, the Administrative Labour Tribunal in Quebec ruled against Amazon Canada Fulfillment Services for interfering with a unionization campaign at a distribution center in Montreal.
The tribunal found that the company violated workers’ rights by disseminating anti-union messages — though it stopped short of concluding that the company engaged in intimidation or threats.
The union was awarded $10,000 in moral damages and $20,000 in punitive damages, and Amazon was also ordered to remove all anti-union materials and distribute the decision to current and former employees, along with a letter acknowledging the ruling.
The ruling sends a clear message about the limits of employer communication during unionization efforts, says Michael Smyth, a partner at Hicks Morley in Toronto.
Beyond financial penalties, such findings can erode trust between employers and employees while strengthening union support.
“If the employee sees the union has done something that has resulted in the employer being compelled to take those steps, that can reinforce for the employees that the union is strong,” he says.
“As an employer, you don’t want to be giving the union those wins.”
Tribunal finds anti-union rhetoric
The Montreal Amazon Workers Union – CSN alleged that Amazon used misleading messaging and tactics to obstruct unionization efforts. The tribunal agreed, concluding that the company’s communication strategies — including “ubiquitous” messages displayed on screens, table-top displays, and even bathroom stalls — crossed the line into interference.
According to the tribunal, the messaging targeted employees’ emotions “rather than fostering informed reflection” (all quotes translated from original French in decision), using slogans such as “Protect your signature” and “Joining a union is a personal choice – it should not be taken lightly.” These “appeared designed to instill doubt and fear about unionization,” said the tribunal.
Amazon also used the company’s “hierarchical authority to propagate anti-union rhetoric,” said the Quebec decision, inviting employees to discuss union matters with their managers, “who were trained to dissuade union membership under the guise of neutral communication.”
Facts over emotion in anti-union messaging
One of the tribunal’s key criticisms of Amazon was the omnipresence of its messaging. Even factual messaging can take on an intimidating tone if it is overwhelming, says Danny Kastner, a partner at Kastner Ko in Toronto.
“It has to be factual, is really the key part, and it can’t come with either an express or an implicit threat that you will suffer adverse consequences if you choose to support unionization,” he says.
“It is true that a really extensive campaign for an employer might in itself, just by virtue of its breadth, come across as intimidation, even if the messaging is technically factual.”
The tribunal also highlighted emotionally charged messaging, reinforcing the idea that it’s not just the words used, it’s how they’re presented, says Kastner.
“It’s what the context is, it can even be tone. All of these are potentially relevant factors in assessing where a communication tips over to prohibited speech.”
Employers must tread carefully when addressing union-related concerns raised by employees, says Smyth.
“The starting message is [that] the employer respects the employees’ right to choose. The employer can state its preference. It can say, ‘We would prefer to remain union-free. We prefer to deal directly with our employees without a third party being inserted in between us.’”
On the flip side, employers should not leave ambiguous statements unaddressed, he says.
“If an employee said, ‘Oh, I heard if we unionize, you’re going to shut down the plant,’ you can’t just not respond to that and leave it ambiguous… You need to address those issues as well.”
Employer views against union drives
Understanding the legal boundaries of employer communication during union drives is critical, says Smyth, citing Section 70 of Ontario’s Labour Relations Act, which is similar to Quebec.
“[It] says that employers must not use coercion, intimidation, threats, promises, or undue influence and must not participate in or interfere with the formation, selection, or administration of the trade union,” he says.
“But it also provides that the employer is able to express its views and communicate — provided it doesn’t sort of cross that line.”
To avoid claims of interference, employers must strike a careful balance in their messaging, says Kastner.
“The line that labour tribunals and courts generally draw is between providing information and making an argument on one side and misrepresenting, intimidating or threatening on the other side,” he says.
“And it is true that sometimes that line is blurry, but for the most part, employers who work in this area and adjudicators who determine it have a fairly clear sense of what is onside and what is offside.”
To avoid rulings like this, employers should be fair and honest, says Kastner.
“Don't retaliate against employees who have spoken up in favour of the union or are perceived to be part of the unionization drive. But, at the same time, feel free to make an argument in good faith to your workforce about why you believe that unionization is not in the company's interest.”
Subtle violations of Labour Relations legislation
Clear violations — such as employer promises of raises for voting against a union or threats of facility closures for supporting one — are easier to identify, says Smyth. But subtler issues — like the tone or cumulative effect of employer messaging — can be harder to assess.
“That’s something else that employers have to keep in mind,” he says.
“The board will consider ‘What was the employer’s communication for the application for certification or the organizing drive? How often did it communicate, and how did it communicate with employees?’ And then look at how that may or may not have changed in the course of the organizing campaign.”
Unions often promise workers benefits such as wage increases or guaranteed job security without facing the same level of scrutiny as employers, says Smyth.
“The union is free to say whatever it wants. The union can make promises… It’s rare that it’s ever called out onto the carpet on any of those promises, whereas the employer can’t.”
Staying ahead of union organizing
Ideally, the employer should be communicating before it faces a union-organizing campaign, says Smyth.
“Have a strategy to have regular communication and receive and respond to employee concerns, deal with workplace issues… before the union shows up.”
Once a union drive is underway, communication windows narrow significantly.
“Union-organizing campaigns may not become known to the employer; they can be conducted fairly secretly,” he says. “Once the application is filed, it all moves extremely quickly; in Ontario, it’s usually five days from the time the application’s filed until the time of the vote. So, if you haven’t been aware of it, you have very little time to state your case.”
Proper training for managers and supervisors is also essential.
“You’re going to be held responsible for things people say, so you want to make sure they understand the guidelines and the guardrails and communicate within them,” says Smyth.
Manager training amidst anti-union efforts
In union drives, the behaviour of managers and supervisors can make or break a company’s compliance with labour laws. Kastner emphasizes the importance of training management to avoid unintentional violations.
“There’s essentially two types of situations where employers will get in trouble: one where there is an actual company policy to union bust, and the activities that flow from that are in violation of labour rules… Other times, it is managers speaking off the cuff or on their own, taking unilateral steps that then get their company into trouble,” he says.
Employers would be well-advised to ensure that the whole management team is clear on the rules, says Kastner, in terms of what is in and out of bounds when it comes to speech related to unionization drives.
“From time to time, there are managers who are zealous anti-union personalities themselves. But, more often than not, you are asking managers to perform a function they don't normally perform and they're not very comfortable with, which is to try to essentially intimidate their direct reports away from unionization,” he says.
“That can change the quality of the relationship between management and workers in a way that produces an adversarial tenor in the workplace.”
Kastner points to the inherent imbalance of power between employers and employees as a key backdrop for Canada’s employment law and decisions like this.
“It can be a deeply scary experience for employees to consider joining the union because of the long history of employers who retaliate against employees for simply exercising their right to organize… Employers may have your financial well-being in their control, and that’s exactly what makes employees vulnerable and exactly why they need heightened protection from intimidation, threat and coercion on the part of employers,” he says.
Employer penalties for crossing line
While Amazon was ordered to pay damages and comply with other remedial measures, the penalties for anti-union activities can be “extremely serious,” says Smyth.
“If there is a vote and the union loses, the union can file an application to ask for remedial certification to say that the employer’s conduct affected the outcome, and that the true wishes of the employees were not likely reflected in the vote,” he says.
“[The board] can order another vote be taken, or can order that a vote be taken if one hasn’t been… or it can actually order that the union be certified… without a vote.”
The tribunal’s order for Amazon to distribute its decision to employees is a common remedy, says Kastner, “to make sure that their workforce is informed.”
However, legal protections alone are often insufficient to deter anti-union activity, he says.
“While we have laws that are designed to protect against these circumstances, the actual legal fights can be really long, expensive, and uncertain. So, unless you have a well-funded union with committed counsel, as you have in this case, most examples of union-busting of this kind simply do not get sanctioned.”
The Amazon factor
While the Quebec decision isn’t particularly surprising, says Kastner, “it didn’t help that Amazon has a well-earned reputation as being anti-union and as being a company prepared to take quite aggressive steps to try to avoid the unionization of any of its employees.”
The company’s tactics reflect a broader trend among certain employers with aggressive anti-union strategies, he says.
“What is unusual is a large, sophisticated employer so frequently and so blatantly engaging in anti-union intimidation activity. So that continues to be notable about Amazon as a company, and does tend to put it in a distinct category from most other large and sophisticated employers.”
