Ontario Secondary School Teachers’ Federation District 25 v. Ottawa-Carleton District School Board, 2001 CanLII 11073

0417-01-U Ontario Secondary School Teachers’ Federation District 25, Applicant v. Ottawa-Carleton District School Board, Responding Party.

BEFORE: Christopher J. Albertyn, Vice-Chair.

DECISION OF THE BOARD; November 20, 2001

1. This is an application filed pursuant to the Board’s unfair labour practice jurisdiction under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (“the Act”). The applicant federation (“the union”) alleges the responding party (“the employer”) has violated section 70 of the Act. That section reads:

2. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence. 1995, c. 1, Sched. A, s. 70.

3. The parties have agreed the matter should be determined on written submissions, without need of a hearing. The union has asked the employer to provide it with the names, addresses and telephone numbers of the employees for whom the union has bargaining rights. They are custodial and trades persons. The employer has refused. The union says the employer is obliged to provide the information and it contends the refusal is a violation of section 70 of the Act.

4. The union says it needs the information to be able to communicate properly with the employees in the bargaining unit it represents. It explains it has had difficulty communicating readily with them without details of their home addresses and telephone numbers. There are about 750 employees in the bargaining unit. It covers a large area, some 2,760 sq. km. The union’s members are distributed in some 156 buildings. There were approximately 100 job postings in the past year. On the employer’s figures 15 of its buildings in which members of the union work have rotating shifts; there are 40 floater positions and 20 replacement positions. Sixty employees are on permanent assignment to a variety of locations, although each such employee has an assigned location for delivery of mail and pay cheques. All maintenance staff have a home location for delivery of mail and pay cheques, even if they work in other locations. I take from this information that the bargaining unit covers a large area, there are several locations where employees work, some of the employees move between different sites and the union has some difficulty being able to communicate readily with each of its members.

5. In making its request to the employer the union provided a copy of the Board’s decision in The Millcroft Inn Limited, [2000] OLRB Rep. July/August 665. That decision said an employer must provide the names, addresses and telephone numbers of employees to the union which represents them. Relevant portions of that decision read:

6. What is the union’s interest in having the names, addresses and telephone numbers of the employees, and is that a bona fide labour relations interest? It wishes to have the information so as to be able to communicate easily and readily with the employees it represents in its bargaining unit. It could, arguably, obtain the information as a concession from the employer at collective bargaining, which is due to occur this fall, and it could seek to have the information updated periodically under an agreed provision of the forthcoming collective agreement to be concluded between the parties. Must it wait for that to occur, or does it have a right under the Act to that information for legitimate labour relations reasons at this stage, without a provision to that effect in the collective agreement?

7. Rights in labour relations are acquired in two primary ways: under the Act and by agreement in collective bargaining. The rights acquired under each regime are different in quality. The rights under the Act are enabling in character. They provide the basis upon which a collective bargaining relationship can be established and maintained. They create the foundation upon which the edifice of the relationship is built. The substantive rights which a union secures for itself and the employees in a collective agreement are of a different sort. They are substantive entitlements which advance the interests of employees. They are the outcome of the exercise of the enabling rights protected under the Act. Thus, for example, union rights to sit on joint employer–employee committees, to be consulted in planning decisions, to raise grievances, to be present before, at or after disciplinary inquiries, these are the kinds of rights which a union can negotiate with an employer in a collective agreement. They are substantive rights to which the union has no entitlement, other than through the employer’s agreement. In contrast, the basic rights, those protected by the Act, are not dependent upon the employer’s consent. They exist independently. Their purpose is to ensure that a union is able to meet its statutory obligations, particularly its duty to represent employees in a fair and effective manner.

8. What then are a union’s statutory obligations once it has bargaining rights for a group of employees? The obligations are considerable and, in light of the decision in Weber v. Ontario Hydro (1995), 1995 CanLII 108 (SCC), 125 D.L.R. (4th) 583 (S.C.C.), and the decisions which flow from it, those obligations are expanding into areas not previously anticipated. Once workers are covered by a collective agreement many of their individual rights must now be exercised through their union and the grievance procedure it negotiates with the employer, and not through the ordinary courts.

9. Let us look first at the obligations arising directly from the Act, then we can look at the obligations which arise more generally as a result of the jurisprudence which has it origin in the Weber case. A union’s basic obligations to employees under the Act are contained in sections 74 and 75. (Section 75 has no relevance in this matter since the union is not involved in the business of referring the members of the bargaining unit it represents to jobs that become available). Section 74 reads:

10. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

11. There is much Board jurisprudence on the extent of a union’s obligations under this section. A union must diligently pursue the interests of the members of the bargaining unit it represents. To the extent a union has statutory duties under the Act, such as those in section 74, it possesses corresponding statutory rights which enable it to fulfil those duties. A union must act fairly, genuinely and competently towards the employees it represents: Gagnon v. Canadian Merchant Service Guild and Laurentian Pilotage Authority 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509, at 527. What are the kinds of circumstances in which a union can reasonably be expected to represent its bargaining unit members? A union must be able to pursue grievances on behalf of the employees. It must be able to investigate those grievances and to act promptly to achieve their resolution. It must be able to communicate with employees to ensure that the collective agreement it has concluded is being properly administered by the employer concerned. It needs to be vigilant. It is responsible for the enforcement of the employees’ rights under the collective agreement. If a union is not vigilant, it may face a claim of estoppel if it allows rights it or the employees possess to fall into disuse and to be overridden or ignored by the employer: Re Board of Commissioners of Police of the City of Owen Sound (1984), 1984 CanLII 5232 (ON LA), 14 L.A.C. (3d) 46 (M. Picher); The Agassiz Teachers’ Association of the Manitoba Teachers’ Society v. The Agassiz School Division No. 13, award of Graham, September 17, 1997.

12. The Board will take account of the history of a union’s dealings with the employees when assessing whether the union has met its duty of fair representation to them: Mike Brinovec [1986] OLRB Rep. May 585; Scarborough General Hospital [1977] OLRB Rep. November 770. A union should take reasonable steps, such as communicating with the employee concerned, to hear what the employee has to say before acting in some manner against that employee’s interests: Angelo Ritrovato [1986] OLRB Rep. October 1401; Swing Stage Ltd. [1983] OLRB Rep. November 1920. A failure to communicate with the employee concerned in such circumstances may be deemed to be arbitrary, and hence in violation of the union’s duty of fair representation under section 74. A union has an obligation to try to settle grievances early in the process: Catherine Syme [1983] OLRB Rep. May 775. To do so it might have to communicate with one or more of the employees in the bargaining unit. In order to assess the merits of a grievance, a union representative may need to speak to several employees in the bargaining unit. He or she may need to trace, contact and interview witnesses. The representative may need to explore with the employees the implications of pursuing a particular grievance. This could involve talking to other employees in the bargaining unit besides the grievor. A union’s obligations under section 74 involve the proper investigation of employee concerns. One employee’s grievance may affect the rights of other employees. A union representative may need to speak to other employees to assess the impact. A union is obliged to communicate with an employee concerning his or her grievance: Metropolitan Toronto, Four Seasons Hotels Ltd. [1984] OLRB Rep. October 1406. A union should keep the employee apprised of developments in the pursuit of his or her grievance. A failure to advise an employee that the union has decided not to pursue his or her grievance may constitute a violation of section 74: Angelo Ritrovato, above.

13. A union has other statutory obligations besides sections 74 and 75 in relation to the employees it represents, particularly those which arise during the bargaining process. The Board has said on several occasions that a refusal by an employer to provide the names, addresses and telephone numbers of employees during the negotiation of a collective agreement may constitute an unfair labour practice. But this case does not arise in that context. The union wishes to assert its entitlement to the information generally, not restricted to the context of collective bargaining. Therefore I will not explore the considerations regarding the need of a union to communicate with the employees in its bargaining unit during the process of negotiating a collective agreement other than to say that it is clear that the union has a considerable need to communicate with employees to canvass their objectives well in advance of formulating a bargaining position. It should confer with them during the course of bargaining, it will need them to participate in any ratification or strike vote and it will require their endorsement of the positions it adopts in bargaining. All of this entails that the union be able to communicate expeditiously with the employees.

14. There are other trade union obligations to employees it represents under the Act. Section 48(12)(j) of the Act gives arbitrators the power “to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.” Under section 64.5 of the Employment Standards Act a trade union is obliged to enforce all employee claims under the Act at arbitration under its collective agreement. The obligations upon a trade union as described in respect of section 74 of the Act – ascertaining and protecting employee rights under the collective agreement – apply also to rights under human rights legislation and under the Employment Standards Act.

15. What is apparent from the examples of the union’s obligations to the employees in its bargaining unit, even during those times when it is not involved in the negotiation of a collective agreement, is that the union has a duty to represent the employees fairly and in a manner which is not arbitrary or discriminatory. What is also apparent is that if the union is to fulfil that duty, it must be able to communicate directly with each employee it represents.

16. I now turn to the wider obligations which the union has incurred as a consequence of the Weber case. Despite a long recognized, common understanding between employers and unions to keep certain matters outside of the arbitration arena, the aftermath of Weber has been to incorporate within arbitration an array of different causes of action which the parties might not have wanted to be so included.

17. The Weber case, and those following its direction (Dubord & Rainville Inc. and Métallurgistes Unis d’Amérique, Local 7625 (1998) 1998 CanLII 30126 (QC LA), 71 L.A.C. 55 (Frumkin); Dwyer v. Canada Post Corp. [1995] O.J. No. 3265 (QL)(Gen. Div.), affirmed on appeal [1997] O.J. No. 1575 (QL); Venneri v. Bascom (1996), 1996 CanLII 7972 (ON CTGD), 28 O.R. (3d) 281 (Gen. Div.); Quinn v. Morrison [1997] O.J. No. 2898 (QL)(Gen. Div.); Ram v. Prasad [1996] B.V.J. No. 1672; Giorno v. Pappas [1998] O.J. No. 18 (QL) (Gen. Div.), affirmed on appeal (1999), 1999 CanLII 1161 (ON CA), 42 O.R. (3d) 626 (Ont. C.A.)), have significantly expanded the scope of the arbitrability of disputes arising in workplaces which are governed by a collective agreement. Even if the cause of action does not arise expressly from a collective agreement, the ratio of Weber is that, if it is a dispute between an employer and an employee and it appears that the dispute arises inferentially or essentially from the collective agreement which governs them, then the dispute is to be arbitrated, rather than determined in the ordinary courts. Unions have inadvertently acquired a huge area of litigious responsibility which they might not have contracted for under collective agreements. In Weber the court extended the jurisdiction of the arbitrator in that case to include all causes of action in which an employee ‘has been subjected to unfair treatment’. That principle has been extrapolated to apply more generally to employers and employees who are governed by a collective agreement. So, whereas in the past the arbitrability of a dispute depended upon the express provisions of the collective agreement, as a consequence of Weber and the cases which follow it, a matter which arises inferentially from a collective agreement ― including perhaps any claims of unfair treatment ― is deemed to arise from the collective agreement and must be determined at arbitration. Unions have incurred a considerably wider obligation to employees than they might have contemplated when they concluded their collective agreements.

18. The relevance of this reference to the expanded jurisdiction of arbitrators brought about by the Weber decision, and the cases which have followed it, is that the union has a very wide obligation to protect the legal interests of the employees vis-à-vis the employer in the bargaining unit it represents. For the union to be able to fulfil that obligation it must be able to communicate with the employees. Having their names, addresses and telephone numbers will considerably ease their difficulties in doing so.

19. The employer sees no contradiction in it having the names, addresses and telephone numbers of employees and yet advancing a right of privacy concerning that information in relation to the union. The employer and the union are equal bargaining partners in their collective relationship. The employer is in no more preferential position in relation to the employees than is the union in the context of their collective bargaining relationship. In that context, the employer is not entitled to greater rights in relation to the employees than is the union. To the extent that the employer is entitled to know the names, addresses and telephone numbers of the employees, i.e. to the extent that their privacy rights to that information are compromised by the employer sharing it, so too is the union entitled to the information.

20. A consequence of the union possessing exclusive bargaining status on behalf of the employees is that the union is placed in an equal bargaining position with the employer in its collective bargaining relationship. To the extent that the employer has information which is of value to the union in its capacity to represent the employees (such as their names, addresses and telephone numbers), the union too should have that information. The employees’ privacy rights are compromised (no doubt legitimately) by the employer having details of their names, addresses and telephone numbers. The union’s acquisition of that information would be no greater compromise, nor any less legitimate.

21. The employer has made much of the availability of alternative methods for the union’s acquiring the information it wants. Of course, with effort, the union could put a notice on its bulletin board asking each employee to let it have his or her address, and perhaps all, but more likely, less than all of the employees would bother to do so. Also, with effort, the union’s stewards could, in their own time (at meal breaks and before and after work), seek out each employee and obtain his or her address and telephone number. That too would probably result in some success. The question, though, is why the union should be put to such toil when the employer can easily, without hardship, supply the information? To my mind, there is no justification for putting the union to the exertion. The employer has the information, the union needs it, the union is entitled to it and it should have it. The employer is best placed to provide it, and it should do so.

22. The establishment of a collective bargaining relationship between a union and an employer entails a change in the employment relationship between the employer and its workers. The change is from an individual to an collective basis of the relationship – the union becomes the agent for the employees and, as such, it is entitled to speak on their behalf as if they were together negotiating as a group. The individual employees may not make their own individual bargains or deals with the employer. To that end, the union is entitled to take full instructions from them and to represent them. For the union to do so, it must be able to communicate effortlessly with the employees. The alternative methods offered by the employer do not meet that need. They enable the union to obtain the information, but the methods are such as to amount to an obstacle in the path of the union obtaining what it wants. Obstacles have their social value, but not in this case. Here they serve merely to frustrate the union’s capacity to do its job properly. The union needs the information and it should have it without the need to pass through the obstacles suggested by the employer.

23. A similar matter has been considered before the Canada Public Service Staff Relations Board, Public Service Alliance of Canada and Treasury Board [1996] C.P.S.S.R.B. No. 30, (1996) 29 PSSRB Decisions 7 (Digest), PSSRB File Nos. 161-2-791 and 169-2-584. In that case the employer argued that the provisions of the federal Privacy Act prevented it from providing the union with the names and addresses of its employees. The facts in that case were similar to those in this: there was no suggestion of maliciousness, caprice or other improper motive on the part of the employer. Its resistance to providing the information of employee addresses and telephone numbers was occasioned only by a genuine concern to respect the provisions of the Privacy Act in relation to the employees. There were some differences between that case and this: there the union required the information in order to make representations concerning a layoff, under its partnership role with the employer as provided for in the federal Workforce Adjustment Directive and an Agreement in Principle of May 30, 1995, which applied to them. There is no equivalent statutory provision of assistance in this case, nor is any employee asserting a privacy interest. In that case the PSSRB found for the union and directed the employer to provide the information sought by the union. It found that the privacy concerns of the employer could not impede the flow of the information sought by the union in the proper exercise of its statutory responsibility to fairly represent the employees in its bargaining unit.

24. Taking all of the above into account, I find that the union’s capacity to represent the employees for whom it has bargaining rights is impeded or detrimentally affected by the employer’s refusal to provide the names, addresses and telephone numbers of those employees. The employer’s refusal to give the union the names, addresses and telephone numbers of the employees amounts to interference in the union’s capacity to represent them.

25. The employer is willing to provide the union with details of work locations for all employees who have a permanent work location; it will also give contact telephone numbers for casual employees where they might be reached when they are at work. It offers to update this information, as changes occur. There is also some suggestion by the employer that the employees have access to email, although no specific offer is made to provide the union with each employee’s email address.

26. The employer’s offers do not meet the union’s requirements. The employer has refused to disclose the information because it does not wish to breach the employees’ privacy rights. Of particular concern to the employer are the provisions of the Municipal Freedom of Information and Protection of Privacy Act (“the MFIPPA"). The employer is subject to that legislation. The employer submits that the Board does not have jurisdiction to direct the disclosure of personal information in its possession, given its provisions.

27. As the union points out, the MFIPPA provides a means for the public to obtain the disclosure of information regarding the workings of municipal and other public institutions, like school boards. It also protects the privacy of individuals, including those working within these institutions. This is clear from the purpose clause of the MFIPPA:

28. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of information should be reviewed independently of the institution controlling the information; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information. R.S.O. 1990, c. M.56, s. 1.

8. As part of the MFIPPA, in section 14, there is a restriction upon the public being able to obtain information of a personal nature. Personal information includes the home addresses and telephone numbers of employees, the information sought by the union. The following provisions of the MFIPPA are relevant as to when personal information should be disclosed:

9. (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

(a) upon the prior written request or consent of the individual, if the record is one to which the individual is entitled to have access;

(b) in compelling circumstances affecting the health or safety of an individual, if upon disclosure notification thereof is mailed to the last known address of the individual to whom the information relates;

(c) personal information collected and maintained specifically for the purpose of creating a record available to the general public;

(d) under an Act of Ontario or Canada that expressly authorizes the disclosure;

(e) for a research purpose if,

(i) the disclosure is consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained,

(ii) the research purpose for which the disclosure is to be made cannot be reasonably accomplished unless the information is provided in individually identifiable form, and

(iii) the person who is to receive the record has agreed to comply with the conditions relating to security and confidentiality prescribed by the regulations; or

(f) if the disclosure does not constitute an unjustified invasion of personal privacy.

Criteria re invasion of privacy

(2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

(a) the disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny;

(b) access to the personal information may promote public health and safety;

(c) access to the personal information will promote informed choice in the purchase of goods and services;

(d) the personal information is relevant to a fair determination of rights affecting the person who made the request;

(e) the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f) the personal information is highly sensitive;

(g) the personal information is unlikely to be accurate or reliable;

(h) the personal information has been supplied by the individual to whom the information relates in confidence; and

(i) the disclosure may unfairly damage the reputation of any person referred to in the record.

Presumed invasion of privacy

(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;

(d) relates to employment or educational history;

(e) was obtained on a tax return or gathered for the purpose of collecting a tax;

(f) describes an individual's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or

(h) indicates the individual's racial or ethnic origin, sexual orientation or religious or political beliefs or associations.

Limitation

(4) Despite subsection (3), a disclosure does not constitute an unjustified invasion of personal privacy if it,

(a) discloses the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution; or

(b) discloses financial or other details of a contract for personal services between an individual and an institution.

Refusal to confirm or deny existence of record

(5) A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy. R.S.O. 1990, c. M.56, s. 14.

Information soon to be published

15. A head may refuse to disclose a record if,

(a) the record or the information contained in the record has been published or is currently available to the public; or

(b) the head believes on reasonable grounds that the record or the information contained in the record will be published by an institution within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it. R.S.O. 1990, c. M.56, s. 15.

Exemptions not to apply

16. An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. R.S.O. 1990, c. M.56, s. 16.

17. The employer submits that the union must obtain the information it seeks by using the access procedures contained in the MFIPPA, rather than by using the provisions of the Act to achieve this purpose. On this basis, the employer suggests the Board does not have jurisdiction to consider this matter.

18. The Board is not deprived of jurisdiction to deal with the matters which fall under the Act because the union has another means of obtaining the information through the access procedures of the MFIPPA. The union is entitled to come to the Board to seek relief if a provision of the Act has been violated. There is nothing in the Act or the MFIPPA to suggest otherwise.

19. The employer refers to an endeavour by the union in 1991 to obtain part of the information it seeks in this case from another employer, the Wellington County Board of Education, through the access procedures of the MFIPPA. The Wellington Board refused to disclose the home phone numbers of the union’s members who were permanently or regularly employed by the Wellington Board. The union appealed the refusal through the access procedures of the MFIPPA. The appeal was considered by the Information and Privacy Commissioner (under Order M-96, Appeal M-910462, decision of Tom Mitchinson, Assistant Commissioner, March 9, 1993). The only issue in the appeal was whether the mandatory exemption provided by section 14 of the MFIPPA applied to the home telephone numbers of the affected employees. The union raised section 14(2)(d) as a relevant factor. The Commissioner found it was not relevant because, in his view, that section presupposed a proceeding in which the person requesting the information had a legal interest. The Commissioner found that the union had not identified any such proceeding. The union raised additional factors, not listed in section 14(2). Among them was the need to recognize the union’s obligations as a bargaining agent of its members. The Commissioner determined that the legal status of the union, as the bargaining agent of its members, was not a relevant factor in determining whether disclosure of the information should be made to it. The Commissioner further stated that disclosure of the home telephone numbers to the union ‘is, in effect, disclosure to the world’. That enhanced his view that the status of the union, and its relationship to its members, were not relevant considerations. He upheld the Wellington Board’s refusal and declared that the home phone numbers of the employees should not be released to the union.

20. The Board has taken a different approach. The Board initially dealt with the issue in the context of collective bargaining and first contract arbitration. It said an employer must make the disclosure. The Ontario Cancer Treatment and Research Foundation (Thunder Bay Clinic), [1985] OLRB Rep. October 1213; Playa Fibreglass Manufacturing Limited, [1990] OLRB Rep. February 192. In The Millcroft Inn, the Board extended this approach to non-bargaining situations. The Board regards the status of a union as a statutory bargaining agent of employees as a highly relevant factor in determining whether the union can obtain personal information of the employees it represents so that they may be readily contacted by the union. Different considerations apply in the exercise of the Board’s discretions and jurisdiction than to the Privacy Commissioner. The Board’s recognition of the right to freedom of association, as expressed in section 70 of the Act, entails, for the reasons set out in The Millcroft Inn Limited, that a union should have details of the home addresses and home telephone numbers of the employees who fall within its bargaining unit. The union’s ability to represent the employees in its bargaining unit is impaired by the absence of that information.

21. Under the Act, for the reasons articulated in The Millcroft Inn Limited, an employer is obliged to provide the information the union seeks in this case. The failure to do so interferes with the union’s capacity to represent its members effectively and it constitutes an unfair labour practice. A number of union obligations were described in The Millcroft Inn Limited. There are certain others, which were not mentioned there. For example, under the Act strike votes and ratification votes are mandatory. One wonders how a union can properly conduct such votes, preparing an accurate list of voters and telling them of the vote arrangements if it cannot communicate with the employees outside the workplace. It should not have to go to the employer in order to be able to fulfil these statutory obligations to employees. Section 79(9) of the Act specifically contemplates a union conducting such votes by mail. A union can undertake this obligation only if it has the information the union seeks in this case. Similarly, under the Occupational Health and Safety Act, the union, as representative of the employees, has a wide range of statutory responsibilities to ensure their protection at work. That statute contemplates a partnership between the union and the employer which is simply at odds with the secretive model urged by the employer here.

22. What then should the employer in this case have done? It was faced with a demand by the union which was supported by the Board’s decision in The Millcroft Inn Limited. At the same time, the employer had the decision of the Privacy Commissioner in a similar case which upheld an employer decision that the information should not be released. How can an employer be found to have violated the Act when it has acted in conformity with a ruling made under a different Act? How can ostensible compliance with the MFIPPA be an unfair labour practice?

23. From a labour relations perspective, there are serious problems with the approach adopted by the Privacy Commissioner. When a trade union acquires the exclusive right to bargain on behalf a group of employees through a Board certification, the union becomes the spokesperson of the employees. The employer may not deal any longer with the employees individually as regards their terms and conditions of employment. Those important matters fall, for the duration of the union’s bargaining rights, within the union’s responsibility. It must speak on behalf of all of the employees. It acquires a special relationship of agency in relation to the employees and it incurs important statutory obligations towards them to represent them fairly. In a sense the union becomes the privy of the employees it represents. The employees’ rights to disassociate from the union are significantly curtailed. They become bound by the majority decisions of the employees within the bargaining unit unless the majority should act in a manner which is discriminatory, arbitrary or in bad faith. The union must be placed in a position where it can effectively represent all of the employees in the bargaining unit. To the extent that some individual privacy rights must yield to that interest, this is a necessary consequence of the union’s exclusive bargaining rights and the obligations it undertakes on behalf of the employees. For example, the union must necessarily be privy to all of the terms and conditions of employment of the employees within the bargaining unit. Full disclosure of all of their individual terms and conditions of employment by their employer is necessary to enable the union to know from what threshold its collective bargaining will begin. Yet this is precisely the information which is presumed, if disclosed, to be an invasion of privacy under section 14(3)(d) of the MFIPPA. Similarly, in a job posting grievance, a union must be entitled to all relevant information regarding the basis upon which a particular post was filled by the employer, including the educational history of the employees concerned, any personal recommendations or evaluations, character references or personal evaluations. This type of information is presumed, if disclosed, to be an invasion of privacy under sections 14(3)(d) and 14(3)(g) of the MFIPPA. But it is precisely this kind of information which is conventionally and necessarily disclosed by employers to unions which have bargaining rights in respect of their employees, including employers who are governed by the MFIPPA. The disclosure of this kind of information is done on the implicit understanding that the representative trade union will not disperse the information generally, it will use the information for bona fide purposes within its duty as the collective bargaining representative of the employees and it will act as the custodian of the employees’ interests.

24. The reason why such disclosures are customarily made by employers covered by the MFIPPA is that it is well recognized that a certified union with bargaining rights is in a different relationship to the employees it represents than is the public at large.

25. The MFIPPA is a means of regulating what information the public is entitled to obtain from a public body, like a school board. It permits the disclosure of more information than would apply to a private entity. Yet, The Millcroft Inn Limited dealt with a private sector employer. The union in this case is in no different relation to the employer than was the union in The Millcroft Inn Limited to that employer. In both instances the unions have special relationships with the employers concerned, which are different from the relationship between a member of the public and the employers. As part of their rights under the Act, the unions are entitled to certain private information that is not available to the public, regardless of whether the employer is a private or a public body.

26. I respectfully agree with the following findings of the Privacy Commissioner: section 14(1)(f) is the proper provision to be considered to determine if the information sought by the union should be disclosed under the MFIPPA; section 14(2)(d) is not relevant for the reasons stated by the Privacy Commissioner. Like the Privacy Commissioner, I accept the union’s argument that the listed criteria for consideration of the exception under section 14(1)(f) are not exhaustive, but are merely illustrative of the kinds of relevant circumstances to take into account. The union then argued that its status as collective bargaining agent was significant and a relevant circumstance which ought to have been taken into account. I respectfully disagree with the Privacy Commissioner for rejecting this argument. In doing so he failed to appreciate the significance of the union’s statutory role as agent and representative of the employees in a bargaining unit.

27. When one considers that a certified union must receive, and conventionally obtains, information which is presumed to be private under section 14(3) of the MFIPPA, then the disclosure of information which is not described there, such as that sought by the union in this case, although personal (under section 2 of the MFIPPA), will not constitute an unjustified invasion of personal privacy. In other words, if the disclosure of certain information is presumed to be an invasion of privacy and yet that information is conventionally given to certified trade unions in respect of the employees they represent, then so much the more can less private information, for which there is no such presumption, more readily be disclosed to certified trade unions. The disclosure of the home addresses and telephone numbers of the members of a bargaining unit to their bargaining agent is a justified circumstance in which a right under the Act overrules a protection contained in the MFIPPA.

28. It is notable that, in the context of Bill 136 applications (those under the Public Sector Labour Relations Transition Act, 1997), when the Board was required to assist municipalities and hospitals with the labour relations consequences of their amalgamations, and the Board ordered representation votes between trade unions which had represented municipal or hospital employees to determine which of them would become the bargaining agent of the employees concerned, the Board routinely ordered the disclosure of the home addresses and telephone numbers to the unions that would appear on the ballot: The Ottawa Transition Board (unreported), decision of January 26, 2001, OLRB File No. 2353-00-PS; Northwest GTA Hospital Corporation, Ontario, [1999] OLRB Rep. March/April 283. The purpose of that disclosure was to ensure a fair vote as between the different competing unions. No issue arose as to the effect of the MFIPPA, despite that legislation applying to the situation no differently than it does here. No complaint was received from any person, nor was there ever a suggestion that one of the unions which received the information might improperly disclose it publicly.

29. It is useful to look at some comparative jurisprudence in this area. In the US, the following principles have come to be accepted concerning a union’s request for information from an employer. An employer’s duty to supply the information does not arise until the union makes a request that the information be furnished: NLRB v. Boston Herald-Traveler Corp., 210 F3d 134, 33 LRRM 2435 (CA 1, 1954). The information demanded by a union must be relevant to the relationship between the employer and the union. It must concern the union’s capacity to act as representative of the employees: NLRB v. Item Co., 220 F2d 956, LRRM 2709 (CA 5). The NLRB and the courts have adopted a liberal definition of relevancy. The information should be directly related to the union’s function as bargaining agent and it should appear to be reasonably necessary for the performance of this function: Otis Elevator Co., 170 NLRB 395, 67 LRRM 1475 (1968). The NLRB has expressly authorized the disclosure of the names and addresses of employees in the bargaining unit: Summer Home for the Aged, 226 NLRB 976, 93 LRRM 1489 (1976); Autoprod, Inc., 223 NLRB 773, 92 LRRM 1076 (1976); Viewlex, Inc., 204 NLRB 1080, 83 LRRM 1634 (1973). As stated in The Developing Labor Law, 3^rd Edition, 1998 Cumulative Supplement (covering 1990 through 1997), ed. Charles J. Morris, James R. LaVaute, Timothy P. O’Reilly, BNA Books, Washington D.C., at Ch. 13, “The Duty To Bargain”, on p. 281:

It is well settled that information concerning names, addresses, telephone numbers, wages, hours worked and other terms and conditions of employment of unit employees is presumptively relevant to the union’s role as a collective bargaining representative. Also, information pertaining to bargaining unit matters is presumptively relevant, even if not used for bargaining purposes.

22. Furthermore, in NLRB v. CJC Holdings, Inc., 97 F3d 114, 153 LRRM 2580 (CA 5, 1996), the Fifth Circuit court rejected the employer’s argument that it did not have to disclose employees’ addresses, as the union had requested, to allow the union to update its newsletter mailing list, because the union had various other means of communicating with the employees. The court held the addresses were ‘so fundamental to the union’s capacity to communicate with the employees it represented’ that the union did not have to show any special relevance to the information. Similarly in Valley Programs, 300 NLRB 423, 135 LRRM 1208 (1990) the NLRB held that an employer could not refuse to disclose the home addresses and telephone numbers of employees in the bargaining unit on grounds of privacy or confidentiality. This approach by the NLRB and the Courts remains unchanged.

23. For all of these considerations, despite the decision of the Privacy Commissioner, the employer, having regard to its obligations to the union under section 70 of the Act, should have disclosed the information sought by the union.

24. The union has sought disclosure of the “addresses and telephone numbers” of the employees it represents. This is a reference to both the work and home addresses and telephone numbers. The employer is willing to give the union the work addresses and work telephone numbers of the employees the union represents, and to keep this information current. The employer’s contest is only with the home information.

25. The employer has suggested the employees in the union’s bargaining unit have access to email. There is no tender of the employees’ email addresses to the union, but that may well be a more effective, and less personally intrusive, means of communication by the union with its members than the information sought in this application. The union should have all reasonable access to its members which does not interfere with their work obligations. It would seem therefore that the parties should give consideration to whether that information should be provided to the union, in addition to what is ordered herein. The supply of that information may well diminish the need of the union to make use of the home addresses and home telephones of its members.

26. The employer contends that its refusal to disclose the information the union wants is not occasioned by any obstinacy, or bad faith, or with any intention to obstruct the union in doing its work. It suggests these facts distinguish it from the circumstances of the employer in The Millcroft Inn Limited. I disagree. The employer’s intention is not a factor under section 70 of the Act; it is the effect of its actions which matters. I accept the employer’s motivation is genuinely to protect the privacy of its employees and to comply with its obligations under the MFIPPA, but the effect of its decision not to disclose the information to the union is to interfere with the representation of employees by the union. The approach of the Board in matters of this sort was formulated in International Wallcoverings, [1983] OLRB Rep. August 1316, at 1328, ¶28:

27. To ensure that the section [now section 70] did not prohibit all employer initiatives impeding union activity (no matter how bona fides) the Board read into the statute an exception for employer conduct “that only incidentally affects a trade union”. In this manner the Board proposed, pursuant to section 64 [now section 70], to distinguish between legitimate and illegitimate management initiatives. Presumably an adverse impact on union activity would be characterized as “incidental” where, relying on its expertise, the Board accepted the employer’s action as classic business or collective bargaining activity not inconsistent with the scheme of the Act. In effect, the Board would “balance” the conflicting interests of labour management, honouring accepted relationships but being vigilant that intrusions on statutory entitlements have suitable justifications….

28. What is required is to balance a bona fide exercise of managerial prerogative against its impact on union activity. As stated in Carleton University [1998] OLRB Rep. Jan./Feb. 17, at ¶50, ‘the test requires a balancing between the “business purpose” behind the employer’s conduct and the union’s “protected activity” which may have been interfered with.’ As explained in International Wallcoverings such a violation of section 70 can be found where the employer’s conduct has a significant (negative) impact on protected union activity, but that conduct does not show a persuasive or worthy business purpose, despite it being bona fide. There must be a balancing of conflicting interests.

29. The employer has exercised an entitlement it has under the MFIPPA to disclose the information which the union has sought. It chose not to. In doing so it was acting bona fide to protect the privacy of the employees. However that interest does not override the impact of non-disclosure upon the union. The refusal to disclose the names, addresses and telephone numbers of bargaining unit employees to the union is not the exercise of a legitimate business purpose which outweighs the negative impact upon the union’s ability to represent its members. In the circumstances, I find there has been a violation of section 70 by the employer.

30. In the circumstances, and for the reasons set out in The Millcroft Inn Limited, the application is granted. The Board makes the following declarations and orders:

31. the responding party has violated section 70 of the Act;

32. the responding party shall forthwith provide the applicant with the names, home and work addresses and telephone numbers of the employee’s in the applicant’s bargaining unit;

33. the responding party shall post copies of the “Notice to Employees” attached hereto on employee notice boards where the copies are likely to come to the attention of the employees affected by this decision. The copies are to remain posted for a period of 30 days. In addition, the employer shall send an email copy of the Notice to each such employee.

“Christopher J. Albertyn”

for the Board

Appendix "A"

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

Ontario Secondary School Teachers’ Federation District 25 (“the union”), brought an application before the Ontario Labour Relations Board in which it sought an order that Ottawa-Carleton District School Board (“the employer”), provide with names, addresses and telephone numbers of the employees it represents. Up to now the employer has not disclosed this information on the basis of individual privacy rights and its obligations under the Municipal Freedom of Information and Protection of Privacy Act.

The Board has been persuaded that the union is entitled to receive the information from the employer in order to fulfil its obligations under the Labour Relations Act, 1995 to represent you fairly. The Board has found that the information is necessary to enable the union to communicate with the employees it represents easily and readily. The Board has therefore ordered the employer to provide the union with the details of the names, addresses and telephone numbers of the employees it represents.