On June 2, 2016, the Quebec Superior Court upheld a grievance
arbitrator's award in which he ruled that wearing a union
button at a time when no collective bargaining was in progress
contravened the collective agreement and was not automatically
protected by the Charter of Human Rights and
Freedoms.1
Background
In STT de l'Hôtel Méridien de
Montréal (CSN) et Hyatt Regency
Montréal,2 arbitrator Pierre Laplante heard
a union grievance that included a claim that union members who were
prevented from working on July 14, 2010 should be paid their
salary.
The grievance related to a period when labour relations between the
Meridien Hotel (employer) and the accredited union were
strained.
In late spring 2010, the union obtained a mandate from its members
to engage in union activities in order to sensitize the employer to
its principal claims. Given the employer's failure to react to
a first union activity that took place outside the hotel, the union
invited its members to pin a button on their work uniform on July
14, 2010.
The button bore the following message: "Hôtel Hyatt
Regency – Staff cuts = Bad services". The message
worn by the unionized employees was clearly visible to both
management and patrons of the hotel.
The employer immediately demanded that the union order its members
to remove the button, which the union refused to do. Faced with the
union's refusal, the employer decided to close the union office
situated on the hotel premises, expelled the union representatives
and told individual employees who were wearing the button to remove
it if they wished to continue working.
Most of the employees concerned refused to remove their buttons and
the employer finally sent 80 of them home for the remainder of the
day. The union filed a grievance contesting all of the
employer's decisions.
Arbitration award
Although the union claimed that the employer had violated the
employees' freedom of expression, which is protected by the
Charter of human rights and freedoms, and that it had
discriminated against them for engaging in union activities, the
arbitrator found that, by wearing the button, the employees were
conveying a message that was harmful to the employer's
reputation and that their refusal to remove the button was an act
of insubordination that justified the employer's decision to
send them home.
The arbitrator accepted most of the employer's arguments, but
allowed the grievance in part.
He observed that employees' freedom of expression continues to
be an essential component of labour relations, but pointed out that
there are limits on such freedom when it is exercised outside the
collective bargaining period.
He suggested that the union's real objective was not to inform
the patrons of the hotel about the hotel's internal management,
but rather to "trigger a pressure tactic that would disturb
the patrons of the hotel and force the employer to respond
positively to the union's claims which it had previously
ignored."3
More importantly, the parties were not engaged in collective
bargaining and no labour dispute with the employer was anticipated
in the short or medium term.
In this context, the union's action contravened the collective
agreement because the parties had expressly agreed that grievance
arbitration would be the sole means of settling disputes during the
term of the collective agreement. The parties had thus specifically
excluded the use of any pressure tactics, such as wearing buttons
in the workplace.
The wearing of buttons thus constituted a confrontational tactic
that harmed the employer's reputation.
The arbitrator also maintained that the union members' refusal
to remove their buttons when instructed to do so by the employer
was an act of insubordination that justified the decision to send
them home.
However, the arbitrator did allow the part of the grievance
contesting the expulsion of the union representatives and the
unilateral closing of the office made available to them. This
action directly contravened express provisions in the collective
agreement; moreover, the employer did not show evidence of any
urgent reason for its actions.
Judicial review
The Union applied for judicial review of the arbitration award,
arguing that the decision had deprived the union members of their
protection under the Charter. However, the Superior Court dismissed
the union's application. In its decision, the court observed
that the dispute did not really concern the meaning or scope of the
fundamental rights provided for in the Charter, but had more to do
with the application and interpretation of the collective agreement
between the parties. Therefore, the court's role was solely to
determine whether the arbitrator's reasoning and findings were
reasonable.
According to the court, the arbitrator's finding that the
employees were guilty of insubordination was a possible rational
outcome and the arbitrator's reasoning was sufficiently
grounded and intelligible.
Like the arbitrator, the court also observed that there was no
labour dispute or collective bargaining in progress between the
parties at the time.
The unionized employees' freedom of expression thus had to be
interpreted in light of these circumstances. Rather than rushing to
apply the Charter to labour relations, precedence should be given
to the contractual remedies provided in the collective agreement,
including grievance arbitration.
Footnotes
1. Syndicat des travailleuses et des travailleurs de
l'Hôtel Méridien de Montréal (CSN) c.
Laplante, 2016 QCCS 2639.
2. STT de l'Hôtel Méridien de Montréal
(CSN) et Hyatt Regency Montréal, 2015 QCTA 288.
3. Supra, note 2, para. 55.
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