Law gives union officials latitude to criticize, but malicious, reckless comments cross line
Over the past few months, several union executive members across Canada have been suspended or warned after speaking out against their employers
Most recently, Air Canada threatened to fire Capt. Paul Strachan, president of the Air Canada Pilot’s Association (ACPA), over comments he made the company says were “reckless” and constituted a breach of his duties as an employee.
Air Canada alleges Strachan publicly questioned the safety of the airline in a televised interview.
While the law does give “fairly wide latitude” to employees who hold union positions, they can cross the line when their comments are malicious or reckless, lacking in judgment or where those comments lack any basis in evidence, says Michael Sherrard, a management-side lawyer with Toronto firm Sherrard Kuzz.
“During collective bargaining, we expect them to argue more vigorously for their position,” he says. “But if the comments are irresponsible or lacking in judgment — if you don’t have a basis for the assertions — then you need to tread awfully carefully.”
During the interview, Strachan mentioned Aveos Fleet Performance, the aircraft maintenance company that closed its doors last month and whose biggest customer was Air Canada.
While stressing the airline operates safely, he said: “I’m saying that certainly it’s a consideration for you as a traveller going forward if we are now going to, for instance, in the case of Aveos, offshore depot level maintenance activities to third parties in other jurisdictions who may or may not be held to the same standards that our people are.”
Comments like Strachan’s are damaging to the company brand and unjustified since Air Canada said it has no plans to ship aircraft maintenance offshore, Sherrard says.
“That’s where the line has to be drawn,” he says, noting that line is not always clear. “It’s very difficult to set a definitive line because it all depends on contextual circumstances.”
While workers are bound by duty of loyalty and duty of fidelity not to be publicly critical of their employers, they also have a limited Charter right to freedom of expression, says Sebastien Anderson, a labour lawyer with the Vancouver firm Victory Square.
“There is a recognition in case law that union officials have a right to be more critical of their employer than regular employees,” he says. “But it’s not absolute.”
Case law has shown a dividing line between public and private sector union officials, as well, with those in the public sector being more tightly confined because their employers are typically political, Anderson says.
Wade Ritchie, the president of the Brandon Professional Fire Fighters/Paramedics Association in Manitoba, was fired in January over what the city alleges were “reckless and defamatory statements” about another firefighter applying for promotion.
Ritchie has since been reinstated on an interim basis.
His union argued the statements were made as part of normal business enforcing the collective agreement, and Ritchie had been fired as a bargaining tactic since the city and firefighters were preparing to bargain a new agreement.
On the West Coast, a nurse in Parksville, B.C., who is also a union officer with the Hospital Employees Union (HEU), was suspended for a week and one-half without pay for speaking at a public forum about conditions at the senior care facility she works at.
Union officials in health care and education are often held to an even higher standard because of confidentiality rules, Anderson says.
Ultimately, he says it’s up to arbitrators to decide whether the boundary has been crossed based on a test of “reasonableness.”
These recent cases reflect several factors: the expansion of communication technology and social media, along with a more “rights-aware” society, and the increasing influence of United States-style labour relations, according to Sherrard.
“Ten years ago in collective bargaining, you heard people talk about a blackout. Not now,” he says. “Now people are using Twitter from the bargaining table.”
There are still relatively few union executives fired — and even fewer firings upheld at arbitration — in Canada, Sherrard says.
Employers often look for different ways to address these kinds of comments, aside from disciplining the union executive, he says.
The message is more often addressed to other employees, shareholders and customers.
“They’re more interested in working proactively,” Sherrard says, adding that in some cases “sooner or later, though, enough is enough.”
