EMPLOYER REQUIRED TO PROVIDE UNION WITH "BASIC PERSONAL CONTACT INFORMATION" IN ITS POSSESSION FOR ALL OF ITS EMPLOYEES, CIRB RULES

EMPLOYER MEETINGS AND COMMUNICATIONS CLARIFYING BARGAINING POSITION NOT AN UNFAIR LABOUR PRACTICE, SASKATCHEWAN BOARD SAYS

EMPLOYER REQUIRED TO PROVIDE UNION WITH "BASIC PERSONAL CONTACT INFORMATION" IN ITS POSSESSION FOR ALL OF ITS EMPLOYEES, CIRB RULES

The Facts:

On June 13, 2008, the Telecommunications Workers Union and Telus jointly applied to the Canada Industrial Relations Board for a declaratory opinion (under s.15.1(2) of the Canada Labour Code) on the issue of whether the Canada Labour Code required Telus to provide the TWU with "the home telephone numbers and home e-mail addresses of bargaining unit members who [were] not presently [union] members."

Article 6.02 of the collective agreement required Telus to provide the TWU with a monthly list of all the bargaining unit employees together with specified information which did not, however, include employees' home telephone numbers and home e-mail addresses.

The Arguments:

The TWU argued that satisfying its statutory duty to bargain in good faith as well as its duty to fairly represent all bargaining unit employees required that the union be able to "communicate effortlessly" with them. However, while the home telephone numbers and home e-mail addresses of union members were easily accessible, the union did not have easy access to non-union members. Therefore, the TWU maintained that the employer bore a concomitant duty to provide the union with the contact information it was seeking.

Telus argued to the contrary. First, it stated that the union (1) failed to provide a legitimate reason to support its request; and (2) failed to explain why the current information which it did receive was inadequate. Second, Article 6.02 already specified the kind of personal information which Telus was required to disclose to the union on a monthly basis, and the integrity of the collective agreement and the bargaining relationship would be undermined if the Board ordered the employer to provide more than the parties themselves had agreed to. Third, since Telus did not collect its employees' home e-mail addresses; it could not have a statutory obligation to disclose such personal contact information.

The Decision:

Chair Elizabeth MacPherson of the Canada Industrial Relations Board held that the Canada Labour Code obliged Telus to disclose to the TWU all of its employees' home telephone numbers that were not provided on the basis of an express guarantee of confidentiality. However, the Chair held that the union was not entitled to employees' home e-mail addresses.

While MacPherson noted that the Code did not explicitly state that the employer was required to supply the union with the information it sought, she found that the case law consistently held that "the statutory obligations imposed on a union when it is certified as a bargaining agent also imposes an obligation on the employer to provide certain information to the union." In this regard, the Chair cited on the oft-quoted Ontario Labour Relations Board's decision in CAW-Canada, Local 448 v. Millcroft Inn Ltd., [2000] O.L.R.D. No. 2581 (QL):

The employer and the union are equal bargaining partners in their collective relationship. The employer is in no more preferential position in relation to the employees than is the union in the context of their bargaining relationship.... To the extent that the employer is entitled to know the names, addresses and telephone numbers of the employees, i.e., to the extent that their privacy rights to that information are compromised by the employer sharing it, so too is the union entitled to the information.... To the extent that the employer has information which is of value to the union in its capacity to represent the employees ... the union too should have that information.

MacPherson rejected Telus' first objection, that the union had not given a legitimate reason for its request, maintaining that "this argument misapprehend[ed] the nature of the relationship between the employer, the union and the employees in the bargaining unit, and the entitlement to the basic personal contact information necessary for a union to carry out" its statutory duties. In the Chair's view, basic personal information was provided for the purpose of "facilitating contact with the individual regarding employment-related matters," and "this purpose applies as much to the union that represents the employees as it does to the employer." However, MacPherson declared that such information could only be used "for the purpose for which it was collected, namely matters related to the individual's employment and the fulfillment of the union's statutory obligations in regard to that employment." Moreover, she held that certain basic personal contact information, such as an unlisted telephone number, could be withheld by the employer if it was subject to an express guarantee of confidentiality.

With regard to Telus' second objection, that the information specified for disclosure in the collective agreement did not include employees' home telephone numbers, the Chair noted that Board jurisprudence clearly upheld "the right of a certified bargaining agent to basic personal contact information about employees that is collected by the employer, as part of the employment relationship," and declared that "any collective agreement provision that provides for less than the statutory entitlement is unenforceable." Therefore, the Board held that "Telus is under a Code obligation to provide to the TWU the home telephone numbers of all employees in the bargaining unit ... that are in its possession, with the exception of telephone numbers that were provided to Telus on the basis of an express guarantee of confidentiality."

However, MacPherson was persuaded by Telus' third objection, that it had no obligation to disclose information that was not in its possession, and was thus unwilling to order the company to obtain its employees' home e-mail addresses "solely for the purpose of providing [such information] to the union." The Board explained: "If the employer does not require the home e-mail address of employees for the purposes of the employment relationship, then the union has no right to require the employer to collect this information solely for the union's benefit." In the result, the Board ruled that "[s]o long as the employer does not collect the home email addresses of employees in the bargaining unit for its own purposes, it is under no [statutory]obligation to collect and disclose this information to the union."

Comment:

Case law demonstrates a consistent application of the ruling in Millcroft Inn (see Lancaster's Collective Bargaining Reporter, November/December, 2000) recognizing a union's right to disclosure of employees' basic personal contact information in the employer's possession. See for example, General Teamsters, Local 362 v. Monarch Transport Inc. and Dempsey Freight Systems Ltd., a decision of the Canada Industrial Relations Board reviewed in Lancaster's Human Rights & Workplace Privacy E-Bulletin, December 5, 2003, Issue No. 6; CAW-Canada, Local 114 v. P. Sun's Enterprises (Vancouver) Ltd., a decision of the B.C. Labour Relations Board and CUPE v. Regional Health Authorities 1, 2, 3, 4, 5, 6, 7, 8 and 9, a decision of the Alberta Labour Relations Board, both reviewed in Lancaster's Collective Bargaining Reporter, November/December, 2003; and British Columbia Government and Service Employees' Union v. Lender Services Ltd., a decision of the B.C. Labour Relations Board reviewed in Lancaster's Collective Bargaining E-Bulletin, February 19, 2007, Issue No. 6.

Case Name: Telecommunications Workers Union v. Telus Advanced Communications
Jurisdiction: Canada
Tribunal: Canada Industrial Relations Board
Adjudicator: Elizabeth MacPherson, Chair
Date: July 17, 2008
Full Text: http://onlinedb.lancasterhouse.com/images/up-2CIRB_Telus.pdf

EMPLOYER MEETINGS AND COMMUNICATIONS CLARIFYING BARGAINING POSITION NOT AN UNFAIR LABOUR PRACTICE, SASKATCHEWAN BOARD SAYS

The Facts:

The collective agreement between Cornerstone Credit Union and the UFCW expired on December 31, 2007. In response to the union's notice to bargain in November, Cornerstone wrote to schedule negotiation dates in December, as well as to provide an update on the status of a proposed merger with another credit union. The union responded with a request that issues arising from the merger be addressed in bargaining. Ultimately, negotiation dates were set for January 2008 because the union was unavailable in December. Cornerstone told the UFCW that it proposed to pay a 3 percent salary increase effective January 1, 2008 subject to the outcome of bargaining. The union concurred.

After the January dates were set for bargaining, Cornerstone held a meeting directly with its employees on December 19. The company advised employees that it: (a) would increase wages on January 1; (b) had not yet been able to meet with the UFCW to bargain; (c) would attempt to bargain an extension to hours of work from 36 to 37.5 per week to make hours consistent with the proposed merger partner; (d) was prepared to assume the staff portion of the cost of critical illness insurance; and (e) was prepared to commence bargaining immediately.

At bargaining in January and February, 2008, Cornerstone's proposal to extend weekly work hours was discussed. The union complied with Cornerstone's request to present the proposal to the union's members, but the membership rejected it. After that presentation, a bargaining unit employee conveyed her dissatisfaction with the proposal to a member of management who clarified it for her. Cornerstone then sent an e-mail to all staff "explain[ing] how changes in compensation were being proposed based on job classifications." A further staff meeting was held on February 26, during which salaries and job classifications were discussed. Following that meeting, Cornerstone distributed copies of its bargaining proposal to employees, with clarification of some points that had arisen at earlier meetings.

Objecting to these meetings and communications, the UFCW filed an unfair labour practice complaint with the Saskatchewan Labour Relations Board and sought an interim order that the employer cease and desist from communicating with employees. The union referred to section 11(1)(a) of the Saskatchewan Trade Union Act, which prohibits an employer from communicating in any manner to restrain, intimidate, threaten or coerce employees in the exercise of their rights. Section 11(1)(c) states that an employer who refuses to bargain collectively with a bargaining agent commits an unfair labour practice.

The Arguments:

The UFCW argued that Cornerstone's communications with employees amounted to bargaining directly with the employees and thus interference by the employer and circumvention of the union. The union asserted that the employer had failed to negotiate meaningfully with it, and that to allow such communications to continue would result in irreparable labour relations harm. According to the UFCW, the Board should grant an interim order prohibiting similar communications and meetings.

Cornerstone insisted that it had done no more than clarify apparent misunderstandings by employees of its proposals. Moreover, the company maintained that it had negotiated directly with the union as the bargaining unit representative at all times. In its submission, an interim order prohibiting meetings and communication with employees was inappropriate.

The Decision:

The Saskatchewan Labour Relations Board dismissed the UFCW's application for interim relief.

Reviewing prior case law, and in particular Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. Temple Gardens Mineral Spa Inc. and Deb Thorn, [2007] S.L.R.B.D. No. 7 (QL), the Board confirmed that an employer is entitled to communicate with its employees about matters which are subject to collective bargaining, provided that the employer's communications: (a) do not amount to an attempt to bargain directly with employees rather than the union; (b) do not involve an attempt to undermine the union as exclusive bargaining agent; and (c) do not interfere with, restrain, intimidate, threaten or coerce an employee in the exercise of any rights conferred by the Act.

In the Board's view, taking into account "the likely effect on an employee of average intelligence and fortitude," the UFCW did not establish an arguable case that Cornerstone's communications and "captive audience" meetings had any of these prohibited effects. Rather, its communications contained little more than "the bargaining position of the employer, which was known to the union, along with some further explanation of the employer's position with respect to bargaining. These topics are not prohibited by s.11(1)(a) of the Act.... The information was not presented in a way that could be regarded by the employees as disparaging the union's position or criticizing it in its role as the employees' bargaining agent." Moreover, there was nothing in the employer's communications that even attempted to persuade employees of the merits of its position, or that "would restrain, intimidate, threaten or coerce an employee of average intelligence and fortitude."

Since the Board decided that the evidence provided did not show that there was an arguable case, it denied the union's request for interim relief.

Comment:

In Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. Westfair Foods Ltd., [1995] S.L.R.B.D. No. 35 (QL), the Saskatchewan Labour Relations Board determined that the employer had committed unfair labour practices by holding meetings with, and distributing memoranda to, employees. In that case, the Board described the distinction between prohibited and permitted communications:

In determining whether an employer has crossed over the very fine line between communications which are permitted and those which have a coercive impact, the Board scrutinizes carefully the circumstances and the environment in which the communication is made, as well as the content and subject matter of the communication itself. The essential question is whether there is some compulsion arising from the superior ability of the employer to control the environment in which the communication takes place.

However, the facts in Westfair Foods can be distinguished from the present case. In that case, the employer representatives suggested at meetings with the employees that "the fault for the difficulties in concluding an agreement lay with the union," and the employer encouraged individual employees to express their frustration during the meetings. Also, the employees were told at the meetings that the "only way" for employees to act in their own best interest was to "insist on voting and actually vote for the company offer." This statement may have had a coercive effect on employees, particularly given that the "stressful environment of a meeting at which a large group of employer representatives was in attendance added ... to the intimidating nature of the communication." In these circumstances the meetings included more than just a "straightforward summary of the bargaining position of the employer" which "in itself would not constitute an unfair labour practice." The present case, unlike Westfair Foods, involved nothing more than a "straightforward summary."

Case Name: United Food and Commercial Workers Union, Local 1400 v. Cornerstone Credit Union
Jurisdiction: Saskatchewan
Tribunal: Saskatchewan Labour Relations Board
Panel: Kenneth Love, Chair; Bruce McDonald and Joan White, Members
Date: March 27, 2008
Full Text: http://onlinedb.lancasterhouse.com/images/up-SLRB_Cornerstone.pdf

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