Employers in Quebec, Canada, that want to bar employees from inserting union messages into work e-mail may have to think twice, especially during contract negotiations, according to a recent appeals court decision.
The Court of Appeal of Quebec supported an engineers' union that filed a complaint after its government employer prohibited members from adding a labor message beneath their signatures on work e-mail.
The messaging occurred about five years ago, as the engineers' union was involved in collective bargaining with the Quebec government to renew its contract. Several union members reported they'd been retaliated against or sanctioned because of the e-mail messaging.
The appeals court in July upheld the initial ruling from Quebec's labor relations board (now known as the Administrative Labour Tribunal), which had found that the union messaging—similar to picketing—constituted freedom of expression in the labor-relations context.
The labor board found that employees' right to freedom of expression, exercised reasonably during contract negotiations and without injury to the employer, outweighed the employer's property rights. The e-mail messaging ban had interfered with union activities.
A Superior Court judge overruled the labor board and dismissed the union's complaint, finding the government's prohibition reasonable.
The Court of Appeal, however, in Association professionnelle des ingénieurs du Gouvernement du Québec v. Procureure générale du Québec, called the labor board's decision reasonable and found that the trial court substituted its own decision for the board's, rather than reviewing whether the board's ruling amounted to one of the potential outcomes that could be justified based on facts and law.
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Aldona Gudas, an attorney at Blake, Cassels & Graydon LLP in Montreal, considers the case "an extension of principles regarding the scope of employee communications in the context of negotiations." Some earlier rulings allowed employees to display stickers or badges, she noted. "This case extended the analysis to current forms of expression, such as e-mail."
In this case, the appeal court found the employer's property rights alone did not justify prohibiting the communication. "Rather, the analysis focused on the reasonableness of the communication and its context and the fact that the communication did not cause any harm to the employer," Gudas said.
Employer's Property Interest Didn't Trump Employees' Rights
"The main message employers can take from this decision is that the jurisprudence continues to evolve, and employers cannot assume that they can rely solely on the fact that employees are using the employer's property to restrict union-related employee communications," she said.
Before deciding they can ban employees from including union messaging under their electronic signatures, she added, employers must consider the factors the court considered in this case. Is the message factual and respectful? Does it violate employee obligations for loyalty and discretion toward the employer? Does the message harm the employer's reputation or business?
"The fact that the communications were deemed to be factual and respectful and that there was no evidence of any harm to the employer were given much weight by the labor relations board," Gudas said. The union and the government were involved in labor negotiations at the time, which appears to be key to the court's analysis, she added.
Don't Read Decision Too Broadly
"The courts will protect employees' freedom of association and freedom of expression in the context of collective bargaining. Yet I don't think we can read this case as creating a blanket rule that employees can use the employer's property to communicate union-related messages in any context or in any fashion, even if there is a labor dispute," Gudas said.
"Indeed, the Court of Appeal highlighted that the labor relations board did not create a blanket rule and warned against extrapolating a general principle from the finding," she said.
In future cases, the particular message will need to be analyzed, and decisions will depend on balancing competing interests, with context always an important consideration.
Courts have yet to answer whether, without a current collective bargaining process, employees could legitimately use their work e-mail to communicate with people outside the organization about other work-related issues they may have with their employer, she added. "The balancing of interests in other scenarios could conceivably lead to a different result."
While the physical picket line is traditionally the method that unions use to express themselves and present facts related to employment disputes, the labor board found their freedom of expression "cannot be limited to this single means of communication given the importance of freedom of expression in a democratic society," wrote Serge Benoît, a partner at Le Corre & Associés near Montreal, and a firm associate, Yédam Kim.
"Case law has previously recognized that union members are free to boycott products, distribute manifestos, wear alternative work clothing or even post signs on the properties of employers and that these means are legitimate ways for the union to pressure the employer during a collective negotiation," Benoît and Kim noted. The case recognizes e-mail as an acceptable manifestation of freedom of expression, given changes in modern communication.
In this case, they said, the message presented the union's concerns and in no way hindered the employer's activities, they added.
"This is a unique case," Benoît and Kim stated. Decisions must take the particulars into account, such as the fact that the employer in this case is the Quebec government. "Consequently, given this context, it does not establish new general rules or principles to be applied universally."
Employers that want to limit a union's freedom of expression nonetheless need to demonstrate that the communication causes harm to the business or contains violent or hateful messages. "Without such a justification," Benoît and Kim stated, "courts tend to view employers' arguments to limit union activities as anti-union and judge them essentially to be attempts to hinder or restrict union activities."
Dinah Wisenberg Brin is a freelance reporter and writer in Philadelphia.