Unions are entitled to personal contact information, says Supreme Court
Employer cannot rely on privacy concerns to refuse to give a trade union the personal contact information of persons in the bargaining unit
Can an employer refuse to give a bargaining unit member’s personal contact information to the union? In Bernard v. Canada (Attorney General), the Supreme Court of Canada said “No”. Privacy concerns do not trump a union’s right to be given the employee information it needs to carry out its representational duties.
Elizabeth Bernard is a federal public servant who is a member of a bargaining unit represented by the Professional Institute of the Public Service of Canada. She is a “Rand formula” employee, meaning that she is required to pay union dues and is entitled to union representation and the benefits of the collective agreement, even though she has opted not to become a union member.
Ms. Bernard objected to her employer providing the union with her home contact information. In her view, it would violate her privacy rights; violate her freedom not to associate under s. 2(d) of the Canadian Charter of Rights of Freedoms; and constitute an illegal search and seizure prohibited by s. 8 of the Charter. She challenged a decision of the Public Service Labour Relations Board, which held that the provision of employee contact information did not violate the Privacy Act. The Federal Court of Appeal agreed, and Ms. Bernard appealed to the Supreme Court of Canada.
The Supreme Court’s decision
The Court noted at the outset of its decision that a union is the exclusive bargaining agent for all members of the bargaining unit and has representational duties (such as in collective bargaining, the grievance process, workforce adjustments, prosecuting complaints, and conducting strike votes). These duties are owed to all bargaining unit members, whether or not they are members of the union. While a bargaining unit employee did not have to become a member of the union, he or she could not opt out of the exclusive bargaining relationship, nor the representational duties that a union owed to them.
Bearing this in mind, the Court held that the Public Service Labour Relations Board had reasonably determined that disclosure of home contact information to the union is required under the Public Service Labour Relations Act and is authorized by the provisions of the Privacy Act.
In this regard, the Court held that the unions need an effective means of contacting employees in order to properly represent them, and that work contact information is not enough for a number of reasons. In particular:
The union’s need to be able to communicate with employees in the bargaining unit cannot be satisfied by reliance on the employer’s facilities. As the Board observed, the employer can control the means of workplace communication, can implement policies that restrict all workplace communications, including with the union, and can monitor communications. Moreover, the union may have representational duties to employees whom it cannot contact at work, such as employees who are on leave, or who are not at work because of a labour dispute.
The Court also held that a union is entitled to home contact information so that it can be on “equal footing with the employer with respect to information relevant to the collective bargaining relationship.” In light of the union’s legal obligations to all employees and the possibility it may have to communicate with them quickly, “the union should not be deprived of information in the hands of the employer that could assist in fulfilling these obligations.”
Turning to the impact of the Privacy Act, the Court held that the Board had reasonably concluded that the employer collected home contact information for the purpose of contacting employees about their terms and conditions of employment. The union’s intended use of the contact information was consistent with this purpose and therefore disclosure was authorized under that Act.
The Court summarily dismissed Ms. Bernard’s Charter arguments, stating bluntly, “They have no merit.” Section 2(d) of the Charter “is not a constitutional right to isolation.” More importantly, the Court reaffirmed the principle set out in Lavigne v. OPSEU that the payment of union dues by “Rand formula” employees does not amount to compelled association contrary to s. 2(d) of the Charter. Similarly, the s. 8 search and seizure argument had no merit.
Two judges dissented on the narrow issue of whether the Federal Court of Appeal ought to have ordered Ms. Bernard to pay legal costs to PIPSC and her employer, given that the Board and the Court of Appeal had improperly refused to consider her Charter arguments.
This decision strikes a preemptive blow against those in the so called “right to work” movement who may have been hoping that the case would expand upon the narrow interpretation of the freedom not to associate recognized by the Supreme Court in the Lavigne decision and in the 2001 case of R. v. Advance Cutting & Coring Ltd. Instead, the Court reaffirmed the principles set out in Lavigne, and confirmed that anti-union employees do not have a right to block information a union needs to properly represent them.