Canada: Workplace Pressure Tactics Don't Always Warrant Protection As Freedom Of Expression

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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