What happens when a union’s request for information about the members it represents appears to be in conflict with the employer’s obligations under provincial privacy legislation? This was the issue raised in a recent decision of the Ontario Labour Relations Board in Ottawa-Carleton District School Board v. Ontario Secondary School Teachers’ Federation District 25 (November 20, 2001).
The union requested the names and home addresses and telephone numbers of some 750 employees in the bargaining unit, saying that it had had some difficulty communicating with them and needed the information in order to properly represent its members. The employer refused, citing the privacy provisions of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), a statute which bound the employer. The union applied to the Ontario Labour Relations Board, alleging that the employer’s refusal constituted an unfair labour practice under the Labour Relations Act.
Previous rulings of the Board had come down on the side of the union’s right to such information. One such decision, The Millcroft Inn Limited, stressed that, as an agent of the employees responsible for protecting a wide range of employees’ legal interests, the union was entitled to take full instructions from its members in order to properly represent them. This required that the union be able to communicate effortlessly with its members.
One of the arguments raised by the employer in Millcroft Inn was that, by refusing the union’s request, it was only protecting the privacy rights of its employees. The Board in Millcroft Inn was unimpressed with this argument, noting that the employer, as an equal bargaining partner with the union, was in no greater preferential position in relation to the employees than the union: to the extent that employee privacy was already compromised by employer access to employee’s home addresses and telephone numbers, the union also should have access to this information.
REFUSAL TO DISCLOSE UNDER THE MFIPPA
However, the issue of employee privacy took a somewhat different form in the Ottawa-Carleton District School Board case. The School Board was an institution bound by the MFIPPA, legislation which required that the employer refuse to disclose personal information in its custody or control, subject to some exceptions.
In refusing to disclose the information sought by the union, the employer had been influenced by a decision under the MFIPPA, issued by the Information and Privacy Commissioner, which upheld the refusal by another school board to disclose employee phone numbers to the union. The Commissioner had ruled that the status of the union as bargaining agent was not relevant in determining whether the information should be disclosed. Noting that, under the MFIPPA, disclosure to the union was “disclosure to the world”, the Commissioner declared that the employees’ home phone numbers should not be disclosed to the union.
“A NECESSARY CONSEQUENCE OF EXCLUSIVE BARGAINING RIGHTS”
The Board declined to follow the approach of the Privacy Commissioner, noting that the status of the union as bargaining agent for employees was highly relevant to the determination of whether the union should have access to employees’ personal information. Without that information, the Board observed, the union’s ability to fulfill its role could be seriously impaired.
The Board asked how the union could be expected to conduct strike and ratification votes effectively without being able to communicate with employees outside the workplace. Acknowledging that the employer in this case had been placed in the difficult position of reconciling the views of the Board in Millcroft Inn and the approach taken by the Privacy Commissioner, the Board made this criticism of the Privacy Commissioner’s position:
- “From a labour relations perspective, there are serious problems with the approach adopted by the Privacy Commissioner. When a trade union acquires the exclusive right to bargain on behalf of a group of employees through a Board certification, the union becomes the spokesperson of the employees. … It acquires a special relationship of agency in relation to the employees and it incurs important statutory obligations towards them to represent them fairly. … The union must be placed in a position where it can effectively represent all of the employees in the bargaining unit. To the extent that some individual privacy rights must yield to that interest, this is a necessary consequence of the union’s exclusive bargaining rights and the obligations it undertakes on behalf of the employees.”
The Board went on to note that the union routinely requires access to employee personal information such as the terms and conditions of employment of bargaining unit employees and, in respect of job posting grievances, character references and personal evaluations of employees. Yet disclosure of this type of personal information constitutes a presumed unjustified invasion of personal privacy under the terms of the MFIPPA, and ordinarily could not be disclosed under that statute. Therefore, the Board pointed out, there was even less reason to withhold employee addresses and telephone numbers – information which was less sensitive in terms of employee privacy.
Accordingly, the Board granted the union’s application and ordered the employer to provide the information sought by the union.
In Our View
In making its ruling in favour of the union, the Board noted that the employer’s refusal had not been motivated by an attempt to interfere with the union’s activities, but by a bona fide belief that it was protecting the privacy of its employees. Nevertheless, intention is not a factor in determining whether the employer had committed an unfair labour practice. The test is one of balancing the “business purpose” behind the employer’s actions against the effect of those actions on union activity protected under labour legislation. In this case, despite the employer’s good faith motivation, its refusal to disclose the information was not the exercise of a legitimate business purpose which outweighed the impact on the union’s rights.