union workplace campaigns

From time to time, and sometimes more often than that, unions run campaigns that involve their members wearing campaign paraphernalia such buttons, stickers or ribbons in their workplace.

What immediately comes to mind are the stickers or buttons worn by many union members around the April 28 Day of Mourning to remember workers who died in the workplace, the United Way campaign buttons, the various ribbon campaigns, the anti-bullying pink campaign, the various children's charity fundraising buttons or even the ubiquitous poppy that many wear during the weeks leading up to November 11 Memorial Day.

This material is rarely the subject of employer concern. What does appear on the pages of arbitration reports, however, is when workers wear buttons that contain messages with which the employer does not agree.

Arbitrators have had many an occasion to deal with these issues.The general view is that the wearing of union campaing buttons and insignia is a form of expression protected by s. 2(b) of the Charter. Freedom of expression is a fundamental freedom which, to quote our Court of Appeal, must be valued and given its place within the workplace. Employers must have an overriding interest to interfere with the exercise of this right.

An arbitrator has written that workers do not leave their freedom of expression at the door once they enter the workplace, just as they don't leave their protection the criminal law rules when they enter their workplace.

Invariably, in these cases arbitrators are called upon to determine where the balance tips between the interest of workers to express themselves and the legitimate interest of employers to operate their business.

In some jurisdictions arbitrators have taken the view that union campaign buttons may only be worn in the workplace during the period of collective bargaining. That view is not shared by arbitrators in British Columbia.

In addition to the Charter freedom of expression value, these cases engage also s.8 of the BC Labour Relations Code "Right to Communicate" and s.4 of the Code that guarantees union members' right to participate in the union's lawful activities. As well, and as always, stewards must look to the language of the collective agreement to see whether the parties have made specific provision for the wearing of union insignia and materials.

Although the size and shape and layout of the button is looked at, generally, arbitrators have been concerned with the message that buttons contain as well as the context. As long as the message is not insulting, provocative, derogatory or obscene, employers have to prove that the wearing of an otherwise non-objectional button in the workplace is detrimental to the employer's interests. Detriment has to be actual harm and it is not enough to say that actual harm is possible; it has to be predictable that the wearing of the button will result in harm.

In some circumstances actual harm can be inferred. However, as one arbitrator has suggested, the bigger the inference the more unlikely it will be for arbitrators to draw it without supporting evidence.

A couple of cases that BC stewards and union representatives might find helpful are the HEU (Holyrood) 2004 case involving an anti-contracting out sticker and the 2006 UFCW Local 1518 Overwaitea case involving a Save our Store button. The BC Court of Appeal discussion about freedom of expression and workplace union campaigns in the BCTF 2005 case on parent-teacher interviews and bulletin boards is also a good starting point.