The Public Service Labour Relations Board concluded that an employer was required to provide home contact information about bargaining unit members to the union which represents them because this information is needed by the union in order to carry out its representational duties. At the same time, however, the union must ensure that the information is kept secure and is used only for representational purposes. The main issue in this appeal is whether that decision was reasonable. We conclude that it was.

Bernard v. Canada (Attorney General), 2014 SCC 13, per Justices Abella and Cromwell at paras 1, 37 – 40

Background

Ms. Bernard is a “Rand Formula employee” – a member of a federal public service bargaining unit, but does not belong to the union which has exclusive bargaining rights for her bargaining unit. Although she is not a union member, she is entitled to the benefits of the collective agreement, representation by the union and is required to pay union dues. The union is the exclusive bargaining agent for all members of the bargaining unit and has representational duties – such as collective bargaining, the grievance process, workforce adjustments, prosecuting complaints, and conducting strike votes. Those duties are owed to all bargaining unit members, whether or not they are members of the union. While Ms. Bernard has a right not to become a union member, she does not have the right to opt out of the union’s role as exclusive bargaining agent for all bargaining unit employees.

In 2005, the Public Service Labour Relations Act expanded the union’s representational obligations. As a result, Ms. Bernard’s union sought home contact information for bargaining unit members from the employer. The employer refused and the union alleged that this refusal was an unfair labour practice. The Board agreed that there was an unfair labour practice because by not providing the union “with at least some of the employee contact information that it requested,” it was interfering with the union’s representation of its employees.

On the remedy issue, the Board directed the parties to consult in order to determine whether they could agree on disclosure terms, failing which the Board would hold a further hearing to address the issue of remedy. The parties reached an agreement that the Board subsequently incorporated into a consent order that required the employer to disclose to the union a quarterly listing of home mailing addresses and home telephone numbers of members of the unit, subject to security and privacy conditions. An email was sent to all unit members, including Ms. Bernard. She responded by seeking a judicial review at the Federal Court of Appeal.

Federal Court of Appeal #1

The Federal Court of Appeal said that the Board should have considered whether the Privacy Act applied instead of simply adopting the agreement between the parties. It sent the matter back to the Board for redetermination.

Board Redetermination Hearing

At the redetermination hearing, Ms. Bernard argued that disclosure of her home telephone number and address breached both her privacy rights and her Charter right not to associate with the union. The Board said that workplace contact information alone was insufficient to allow a bargaining agent to meet its obligations to represent all employees in the bargaining unit and that a bargaining agent had a right to contact all employees directly. It also said there was no breach of the Privacy Actbecause the disclosure was consistent with the purpose for which the information was obtained and a “consistent use” of the information under the Privacy Act. The Board put two additional safeguards in place:

• The information was to be provided to the union only on an encrypted or password-protected basis.
• Expired home contact information was to be appropriately disposed of after updated information was provided.

Ms. Bernard sought judicial review. Again.

Federal Court of Appeal #2

The Federal Court of Appeal concluded that the Board’s decision, that the union needed home contact information in order to fulfill its representational duties, was reasonable and its use of the home contact information was a “consistent use” under the Privacy Act. Ms. Bernard successfully sought leave to appeal to the Supreme Court of Canada.

The Supreme Court of Canada

In a 5:2 decision, the Court found the Board’s decision reasonable (as noted at the beginning of this update). How did it get to that point? Not without first reviewing previous labour board cases discussing the extent of information a union is entitled to discharge its representational duties. Quoting from a key Ontario Labour Relations Board decision in Millcroft Inn Ltd. and CAW-Canada, Local 448 (“Millcroft“), the Court said:

A consequence of the union possessing exclusive bargaining status on behalf of the employees is that the union is placed in an equal bargaining position with the employer in its collective bargaining relationship. To the extent that the employer has information which is of value to the union in its capacity to represent the employees (such as their names, addresses and telephone numbers), the union too should have that information. The employees’ privacy rights are compromised (no doubt legitimately) by the employer having details of their names, addresses and telephone numbers. The union’s acquisition of that information would be no greater compromise, nor any less legitimate. [para. 31]

The Court said that the Millcroft conclusions are justified because of the union’s need to communicate with employees, and the fact that the union is not always able to make that contact at work (e.g., employees are on leave or there is a labour dispute). Further, the Court said, disclosure ensures that the union is on equal footing with the employer with respect to information relevant to the collective bargaining relationship. The Court went on to say:

Moreover, an employee cannot waive his or her right to be fairly – and exclusively – represented by the union. Given that the union owes legal obligations to all employees – whether or not they are Rand employees – and 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.

What does this mean for employers?

Labour Relations Boards across the country have generally been quick to reject privacy based objections to the disclosure of personal information to unions. For example, in the leading case, Millcroft, the Ontario Labour Relations Board reasoned that employees who have chosen to bargain collectively with their employer through the union have made an election and are bound by its consequences, namely that the union speaks on their behalf and, thus, their individual privacy rights have been partially superseded. Nonetheless, from time to time there have been challenges such as Ms. Bernard’s. The Supreme Court of Canada has confirmed the Millcroft approach to cases of this nature so long as a “consistent use” is identified.

As a general rule, employers who provide personal information to the union should only provide the data in a format that is encoded, always advise employees when the information has been requested by the union including when it will be disclosed and why, provide home contact information in a password protected or encrypted format and inform all new hires that home contact information will be shared with the bargaining agent.

Postscript

The Court also summarily commented on some Charter rights issues Ms. Bernard raised. Those comments are shared as follows.

Section 2(d) – Freedom of Association
Mrs. Bernard argued that requiring an employer to provide the bargaining agent with the home address and home phone number of employees breached her right to “freedom of association” under section 2(d) of the Charter and that the Board should have considered this. The Court said this argument had “no legal foundation” because section 2(d) “is not a constitutional right to isolation”:

…in our view, the compelled disclosure of home contact information in order to allow a union to carry out its representational obligations to all bargaining unit members does not engage Ms. Bernard’s freedom not to associate with the union… 

In Lavigne, the Court concluded that the payment by Rand Formula employees of union dues for the purposes of collective bargaining did not amount to unjustified ‘compelled association’ under s. 2(3). Even though s. 2(d) protected freedom from association as well as freedom of association, the majority concluded that s. 2(d) does not provide protection from all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of membership in a modern democratic community. In other words, s. 2(d) is not a constitutional right to isolation…While in Advance Cutting & Coring three different approaches to the right not to associate emerged, on none of them would Ms. Bernard have a plausible s. 2(d) claim.

Section 8 – Unconstitutional Search and Seizure
The Court rejected this argument noting that context is important saying:

…As the Attorney General of Canada correctly points out, in this context there can be no reasonable expectation of privacy in that information.

The foregoing is intended for general information only. If you have any questions, or for a detailed list and background of our Labour & Employment practice group, please visit www.stewartmckelvey.com.