Social media testing limits of union rights as long strike prompts unprecedented campaign
It’s not unusual for unions — or employers for that matter — to lash out publicly during a labour dispute.
But the growth of mass communication over the past decade is allowing for a new level of expression and legal experts say it’s wise for both sides to exercise some caution.
The issue was brought to the spotlight recently when the United Steelworkers launched an aggressive public relations campaign against Toronto manufacturer Infinity Rubber.
In letters to suppliers, customers, truck drivers and the media, the USW painted the company as “greedy,” noting the dispute was in its 20th month with no signs of compromise ahead.
A week later, the union stepped up the attack with a YouTube video in which it accuses company president James Chung of trying to “get out of all obligations” to workers by demanding they take a 25 per cent wage cut while also forcing them to pay half their benefits.
In the video, the USW calls these “the actions of a greedy employer” and accuses Infinity Rubber of shortchanging creditors after taking over from predecessor, Biltrite Rubber Co., which filed for bankruptcy protection in 2006.
Generally speaking unions have a broader right to freedom of speech than do employers, says John Craig, an employment law expert with Heenan Blaikie in Toronto. And the availability of Facebook, YouTube and the internet generally are allowing them to exercise that freedom in more creative ways.
“The union has more scope as long as it’s not lying,” he says. “But there is also a duty to bargain in good faith and to continue to meet and talk.”
After more than a year and a half on the picket line, Craig said it’s not surprising the USW would take a more public approach — especially with only 48 workers walking the picket line.
“That’s a small group of workers and it’s quite difficult for them to get attention through classic picketing,” he says.
It’s also well within the bounds of the Charter of Rights and Freedoms, says Richard Charney of the firm Norton Rose in Toronto.
In the absence of defamation — making entirely untrue statements about the other party or attributing accusatory comments to a particular individual — both parties have a right to engage in free speech, he says, “even if it is harsh and critical.”
Charney cautions, however, that individual members bear in mind their own duty of fidelity to their employer when a union ratchets up a public relations campaign. And he says unions should be clear about the end goal from the start.
“Just because you have the right to do something doesn’t mean you should engage in a public relations campaign,” he says. “It’s not necessary and it’s not good labour relations.”
Charney adds that unions should be careful what they wish for. In recent years, the courts have increasingly used the Charter as a guide when deciding labour relations cases. The danger, he says, is that while advancing Charter arguments in one arena, unions may push into contrary territory, such as the issues over mandatory dues or exclusive bargaining agents.
Judith McCormack, a professor of law at the University of Toronto, says labour relations boards are accustomed to the rhetoric that accompanies labour disputes. But the new age of mass communication has them listening more closely.
Unlike in the past, individual union members may now feel more freedom to speak out on personal websites or profile pages, while companies may be walking a fine line between defending a widespread media campaign and saying something that may be perceived as undermining its employees.
“It will depend on what they say and in what forum,” she says. “In those situations a labour arbitrator will look at the balance of rights.”
