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which protects the core of a union’s representation without imposing obligations
beyond that core. In our view, the only information subject to such a statutory
obligation is that without which the viability of the union’s representation would
be significantly undermined or significantly threatened. Other information which
simply aids the union’s administration of the collective agreement on behalf of the
employees is appropriately the subject of negotiation and potential inclusion in
the collective agreement. We see such terms – for instance, requirements of
employers to provide an up-to-date seniority list – in many collective agreements.
The Ontario Labour Relations Board recognized this distinction of acquiring
rights both through statute and collective bargaining in Millcroft Inn Ltd., [2000]
O.L.R.D. No. 2581, 63 C.L.R.B.R. (2d) 181, another decision in a long line of
cases involving the withholding of names, address, and telephone numbers of
employees. At paragraph 19 the Board states:
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 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.
[131] The Union’s submissions attempt to characterize the matters upon which it alleges the
Employer’s conduct was deficient or improper as being of the “statutory” or “foundational” kind
of representational issue. It relies in particular upon two things: first, that many of the matters
arose out of the Union’s attempts to protect and advance employees’ interests in workplace
health and safety, which it characterizes as “legitimate and core union activities”; and second,
that the circumstances of the COVID-19 pandemic required a “heightened sensitivity” to the
Union’s representational rights, such that the Board should protect those representational rights
Classification: Public