IN THE MATTER OF AN ARBITRATION
BETWEEN: VIA RAIL CANADA INC.
AND NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION, NATIONAL COUNCIL 4000
AND IN THE MATTER OF A GRIEVANCE RELATING TO THE DISCLOSURE OF CERTAIN EMPLOYEE INFORMATION TO THE UNION
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Montreal on March 26, 2003.
A. Rosner and B. Coolen, for the union.
E. Houlihan, for the company.
The Dispute and Joint Statement of Issue in this matter are as follows:
Dispute
The Corporation and the Union disagree whether the Corporation is required to provide the Union with the addresses of the employees.
Joint Statement of Issue
The Union has requested that the Corporation provide the home addresses and telephone numbers of all their members in off-train services and on-train services. The request was made in accordance with Article 27.20 of Agreement # 1 and Article 28.13 of Agreement # 2.
The Corporation has declined to provide the information requested on the basis that to do so would be in violation of the requirements of the Personal Information Protection and Electronic Documents Act.
The Union maintains that PIPEDA is not a bar to the Corporation fulfilling its obligations under the Collective Agreements. The union is seeking a declaration to this effect and an order directing that the requested information be provided forthwith.
The parties agreed to an expedited procedure for the hearing of this matter, and stressed its urgency in the light of union elections, required to be held shortly.
Article 27.20 of Collective Agreement # 1 and Article 28.13 of Collective Agreement # 2 are virtually identical. It is sufficient to set out Article 27.20 of Collective Agreement # 1, which is as follows:
Upon request from the Union, the Corporation will provide one designated Representative of the Union in September of each year with a list of employees governed by this Agreement, which shall include the employees’ home address and telephone number. The authorized Union Representative must make this request in writing.
It is agreed that on January 13, 2003, during the term of the collective agreements, the union wrote to the company as follows:
In line with article 27.20 of agreement # 1 and article 28.13 of agreement # 2 could you please supply to me in excel format the list of employees home address. It is required for the union to conduct their national elections this spring.
It is also agreed that the company has not complied with that request, taking the position that to do so might put it in violation of the Personal Information Protection and Electronic Documents Act (“the Act”).
The Act appears to have come into force on January 1, 2001. The collective agreements, in which the articles in question appear to have been new, were effective August 1, 2001. It is agreed that in September, 2001, the union requested lists of employees’ addresses and telephone numbers in accordance with the collective agreements, and that the company complied with the request and provided the lists. There were, it is said, no objections from any employees.
In 2002, it seems, no lists were provided, and the union wrote the company in January, 2003, as noted above. The company has refused to provide the lists on the basis that to do so would violate the Act.
The company, as a federal work or undertaking, must comply with the Act. It is important to note that the union, as an “organization” within the definition in section 2(1) of the Act, must also comply with it.
Part 1 of the Act deals with the protection of personal information in the private sector. The purpose of Part 1 is set out in section 3 of the Act, as follows:
The purpose of this Part is to establish, in an era in which technology increasing facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.
“Personal information” is defined in section 2(1) of the Act as follows:
“Personal information” means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.
In the instant case, what is sought, and what the collective agreements call for, are not the business addresses and telephone numbers of employees, members of the bargaining units, but their home addresses and telephone numbers. These, no doubt, constitute personal information and are, in general, protected by the Act, subject to the qualifications therein, and considered in this award.
“Organizations” (in this case, the company and the union), must, by virtue of section 5(1) of the Act, comply with the obligations set out in Schedule 1. In particular, clause 4 of Schedule 1 sets out the principles governing organizations in the collection, protection and use of personal information. The fundamental requirement of the statute in this respect would appear to be set out in section 5(3) of the Act:
An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
The information in question - the home addresses and telephone numbers of employees of the company - was, no doubt, “collected” by the company for such purposes as appropriate communication in connection with the business of the company and the work of the employees; communications in the event of emergency; reporting to appropriate government agencies, and the like. The union seeks to “collect” such information (in respect of those employees who are members of the bargaining units to which the collective agreements apply), for the purpose of communicating with them on matters of union business and in particular, in the instant case, to communicate with them in respect of union elections in which they are entitled to participate. The union, of course, is the exclusive bargaining agent of employees in these bargaining units, and is obliged by the Canada Labour Code to provide them with fair representation.
The list of employees’ addresses and telephone numbers may perhaps be considered as analogous to a “voters list”, and is of obvious importance to the union in facilitating the exercise by its members of their rights. The union’s collection of this information is, I consider, for a purpose which a reasonable person would consider appropriate in the circumstances. It is, I find, within the contemplation of section 5(3) of the Act, and is consistent with the purposes for which the information was first “collected” by the employer.
There have been a number of cases before labour relations boards, both federal and provincial in which it has been held that disclosure by an employer to a trade union of information such as that requested here (or in some cases, information of a more “sensitive” nature, such as individual salaries), is not in violation of privacy legislation. Indeed, the withholding of such information might, in some circumstances, be considered an unfair labour practice: see, for example Public Service Alliance of Canada and Treasury Board, [1996] C.P.S.S.R.B No. 30 and Ottawa-Carleton District School Board, [2001] O.L.R.D. No. 4575.
As section 3 of the Act, set out above, makes clear, a balancing of interests is contemplated. The importance of the union’s interest has been described in various cases, including Millcroft Inn, [2000] O.L.R.D. No 2581, where the Ontario Labour Relations Board wrote as follows, at para. 37 of its decision:
The employees’ privacy rights regarding the details of their names, addresses and telephone numbers are not such as to off-set the union’s interest in being able to contact them readily and easily. They have accepted the union as their bargaining agent, as their collective bargaining representative. By doing so, they have conveyed to the employer and others that they want the union to speak on their behalf in their employment relations with the employer. The union is therefore ascribed the authority to communicate with them efficiently. The employees could have chosen to bargain individually with the employer; then the privacy of their phone numbers and addresses would be restricted between them and the employer. But they have not chosen that method of bargaining. They have chosen to bargain collectively with the employer through the union. Having made that election, they are bound by its consequences. They are represented by the union; the union speaks on their behalf; they may no longer speak directly with the employer over the terms and conditions of their employment, that must be done through the union. Their individual privacy rights as employees have been partially superseded by the union’s rights as their representative. In those circumstances the union must be placed in a position where it may easily communicate with them in order to represent them.
Under the Canada Labour Code, collective agreements are binding upon the employer and trade union parties to the agreement, and on the employees in the bargaining unit. It is at least arguable, then, that the information in question is “required by law” to be provided to the union even without the knowledge and consent of the employees concerned, and that the conditions of section 7(3)(i) of the Act are satisfied. I think it may also be said, on the reasoning set out in the Millcroft Inn case and others, that employees implicitly consent to the union - their exclusive bargaining agent - having access to this limited, but essential, information which is, as noted above, of a low level of sensitivity.
The company’s obligation under these collective agreements is clear: they must provide the union with certain very limited information which is important for the union’s proper and democratic carrying-out of its duty to represent employees in the bargaining units. The union’s collection of such information is clearly for purposes that are appropriate in the circumstances. The union itself, as the collecting organization, is subject to the restrictions of the Act in respect of its control of the information.
For all of the foregoing reasons, it is my conclusion that the collective agreements require the company to communicate this information to the union, and that such communication is not in violation of the Act. I so declare, and direct that the requested information be provided forthwith.
DATED AT OTTAWA, this 28th day of March, 2003,
,
Arbitrator