FREEDOM OF
SPEECH IN THE UNION CONTEXT: Speaking Freely, but Truthfully, and not Maliciously
A recent Ontario Court (General Division) case and a recent
labour arbitration case have reaffirmed some basic legal principles about freedom of
speech within the union, in the workplace and in public.
A) Freedom of Speech Within the Local Union About
Fellow Union Members
In Haas v Davis (1998) 37 O.R. (3d) 529, the
plaintiff (person suing) and the defendants (people being sued) were all motion picture
projectionists and members of the same union local. The defendants falsely accused the
plaintiff of sabotaging workplace equipment. Those false accusations were set out in an
affidavit read at a local union meeting. As a result, the employer removed the plaintiff
from his chief projectionist job and denied him compassionate leave (which he needed to
look after his ill parents.) A union trial board dealt with the accusations and found the
plaintiff not guilty. He was eventually reinstated as chief projectionist after being
absent for six months. The plaintiff sued for damages for being libelled. He was
successful and was awarded $20,000 for loss of reputation and mental distress and six
months lost wages.
The trial judge was asked to consider a defence from the
defendants that is commonly raised, namely "qualified privilege". "A
privileged occasion is …an occasion where the person who makes a communication has an
interest or a duty to make it…. and the person to whom it is made has a corresponding
interest or duty to receive it." A privileged occasion would be a union meeting and
the privilege would cover the discussion of union business. Union activists have a duty to
speak to members about issues, and union members have an interest in hearing the
information.
When a statement is made on an occasion of qualified
privilege, a person can make statements which are both negative and untrue and still
escape any legal liability. The privilege is not absolute, however, and may be defeated in
two ways. First, the privilege is lost if the dominant motive for publishing is actual or
express malice." "Malice is commonly understood as ill will toward
someone". You can make statements about someone you hate but your main reason for
speaking must not be to get back to him or her. Your main reason for speaking has to be a
legitimate reason, like protecting the local union’s interests. The second way to
lose the privilege is to be deliberately lying or not care if you are telling a lie. Your
factual statements don’t have to be true but you have to believe them to be true and
not be reckless about that.
To put it another way, a defendant is not liable merely
because he is "…irrational, impulsive, stupid, hasty or obstinate", but he
is liable when primarily motivated by ill will, or when he is lying, or when he really
doesn’t care about the falsehood of his statement.
In this case of the projectionist, the libellous
statements were found to have been made on an occasion of qualified privilege, i.e. the
local union meeting. It was an occasion where everyone had an interest or duty to hear and
consider allegations of inappropriate conduct by a unionist. In that setting, false
statements could be made provided they were thought to be true and they were not being
made maliciously. In this case, that test wasn’t met. The statements were found to be
both malicious and knowingly false.
How does the Hamilton scab libel case fit into this? The
jury decided there was ill will towards Kelly and/or that the local didn’t care if it
had accurately identified Kelly as a scab. The evidence of that may have been thin, but
juries are entitled to weigh evidence.
These court rulings can be summarized positively by
saying that unionists can speak freely to each other concerning union issues and that
certainly includes speaking negatively about others. However, when speaking negatively
about fellow members, it’s necessary to be both 1) honest, not reckless, with the
facts and 2) not primarily motivated by personal malice. As long as those conditions are
met, the speaker runs little risk of legal liability, even if it turns out later he was
mistaken.
B) Freedom of Speech about Management in the
Workplace
In Municipality of Metropolitan Toronto and CUPE
Local 79 (1998) 68 LAC (4th) 224, a local union steward was given a five
day suspension for distributing a leaflet about a contentious workplace issue, namely the
disciplining of a union activist. In the leaflet, the steward said the activist had
received more than 12 suspensions and all of them had been found by an arbitrator to be
without cause. The number of suspensions was wrong but the steward had honestly believed
it to be true. The description of the outcome at arbitration was also wrong, but the
steward had deliberately lied about this issue in order to mobilize the membership. The
arbitrator found that the five day suspension was justified for the publication of the
knowingly untrue statements.
The core of the arbitrator’s reasoning was as
follows:
Arbitrators have held that inherent in the role of Union
Steward is the right to represent employees and the union in the workplace, and that this
representation often requires that the Steward forcefully challenge the decisions of
management.
Arbitrators have generally accorded Stewards a wide
range of latitude in order that they may carry out their duties free from fear of
discipline or sanction. Given the adversarial nature of labour relations in this province,
it is sometimes inherent in the responsibilities of Stewards to criticize the actions of
management, in an effort to inform the membership or to improve labour management
relations.
Arbitrators have held that Union Stewards are the front
line advocates on behalf of bargaining unit members, and that they must be able to fully
discharge their responsibilities, and "they must not be muzzled into quiet
complacency by the threat of discipline at the hands of their employer".
Such protection on the activities and statements of
Stewards is not, however, unlimited. The concomitant obligations on Stewards is that they
not use this broad right to make statements or act in a manner which is knowingly false,
or which is a reckless disregard for the truth, or which is malicious in nature.
The arbitrator also cautioned that the distribution of
leaflets should not be done in a way that disrupts work.
Once again, union activists are free to speak
negatively in the workplace about management but they should do so honestly and without
malice and for the purpose of dealing with workplace issues.
C) Communications with the Public
In Municipality of Metropolitan Toronto and CUPE
Local 79, the grievor also participated in a public media campaign against the
employer wherein he made a series of very negative statements about the management of his
workplace. None of those statements were knowingly false. The arbitrator found that this
was legitimate union activity.
Arbitrators and Labour Boards have also held that Union
Stewards are able to raise concerns about management in a public forum or through the
media.
Arbitrators have held that this is particularly relevant
in the public sector where public pressure is a means by which to educate, inform and
persuade decision-makers, politicians, and the public on specific issues, particularly
where the concerns of the union are closely aligned with the public interest.
In such cases, arbitrators have applied the same
criteria, that the statements must not be malicious, or knowingly or recklessly false.
The courts have a tendency to be somewhat more
restrictive than arbitrators when it comes to public statements. The courts apply the
concept of "fair comment". When persons with a legitimate concern about the
issue, like union spokespeople, speak on a matter of public interest, like
union-management issues in OPS and BPS workplaces, then they have the right to make
"fair comment". This means they can certainly make comments that are very
strongly and negatively worded, but they should:
1) set out the main facts they are relying on;
2) make sure those facts are true and can be proven to a
court to be true (not just thought to be true); and
3) make sure the predominant purpose is not malice.
The courts will require public comments to be based on
true facts, and will not likely accept the argument that the person thought the facts to
be true. The courts require people to check their facts more carefully when they make
public comments than when they make comments on an occasion of "qualified
privilege".
Examples:
As said at a Progressive Conservative Convention: Mike
Harris personally fired employees for union activity [which is false, but was thought by
the foolish isolated Red Tory who said it to be true]. He is an anti-union thug.»
Protected by the defence of "qualified privilege".
As said in public: Mike Harris personally fired
employees for union activity [which is false, but was thought by the activist who said it
to be true]. He is an anti-union thug. » Libellous.
Mike Harris has passed laws that cut back union
rights. He is an anti-union thug. »Fair comment.
When speaking publicly, it is more important to make
quite sure the facts you are relying on are correct.
In the OPS, there is an added concern. Public servants
have obligations to honour their oaths of secrecy, to maintain confidentiality of
information and avoid conflicts of interest (including public criticism of the government
related to their job duties). However, they also have a full and unfettered right to
engage in union activity. The Union’s position is always that the right to engage in
union activity includes the right to be publicly critical of management. Such public
criticism is preferrably done as a union spokesperson, and becomes more of an issue if
done simply as an individual public servant.
In summary, when speaking in public, it is best to:
a) make sure your facts are accurate;;
b) not violate the confidentiality of sensitive or
personal information; information;
c) ensure you are speaking as a union spokesperson
about workplace issues..
