A-140-89
Richard Quan (Applicant)
v.
Her Majesty the Queen in Right of Canada as
represented by Treasury Board (Respondent)
A-293-89
Attorney General of Canada (Applicant)
v.
J. Bodkin and 26 Others (Respondents)
INDEXED AS: QUAN V. CANADA (TREASURY BOARD) (CA.)
Court of Appeal, Iacobucci C.J., Mahoney and
MacGuigan JJ.A.—Ottawa, February 1 and 5,
1990.
Public service — Labour relations — Applications to review
P.S.S .R. B. decisions on grievances — Supervisors asking
employees to remove buttons stating "I'm on strike alert" —
Meaning of "activity in union" under Master Agreement
Statutory rights not to be derogated from by collective agree
ment — Whether message on buttons affecting employer's
operations or detrimental to reputation.
These were applications to review and set aside conflicting
decisions of the Public Service Staff Relations Board concern
ing the grievances of public servants who were asked by their
supervisors to remove buttons stating "I'm on strike alert". The
grievances alleged a breach of the employees' rights under the
Master Agreement, which prohibits discrimination by reason of
"activity in the union". The Public Service Staff Relations Act,
section 6 gives employees the right to belong to employee
organizations and to participate in the lawful activities thereof.
The buttons were worn to promote union solidarity in view of
delays encountered in negotiating a new collective agreement.
In Quan, the Board dismissed the grievances, concluding that
wearing the buttons was not "activity in the union". It also held
that wearing the buttons had the potential to damage customer
relations and jeopardize the employer's public image. In
Bodkin, the Board ruled that wearing the button was a legiti
mate activity in the union.
Held, the application in Quan should be allowed while that in
Bodkin should be dismissed.
In the Quan matter, the Board erred by giving a narrower
interpretation to the Master Agreement than to section 6 of the
Act. A collective agreement cannot derogate from the basic
rights conferred by legislation. Both section 6 and the Master
Agreement deal with employee rights to participate in union
activity. The parties must have intended to afford employees
the same protection already granted under section 6. Wearing
union buttons during working hours was legitimate "activity in
the union", to be curtailed only where a detrimental effect on
the employer's capacity to manage or its reputation can be
demonstrated. "I'm on strike alert" did not impinge upon the
employer's authority or damage its reputation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
ss. 6, 91.
COUNSEL:
Andrew J. Raven for applicant Richard Quan
and respondents J. Bodkin and 26 Others.
Harvey A. Newman for respondent Her
Majesty The Queen as represented by Trea
sury Board and applicant Attorney General of
Canada.
SOL IC ITORS:
Soloway, Wright, Ottawa, for applicant Rich-
ard Quan and respondents J. Bodkin and 26
Others.
Deputy Attorney General of Canada for
respondent Her Majesty The Queen as repre
sented by Treasury Board and applicant
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
IACOBUCCI C.J.: These section 28 [Federal
Court Act, R.S.C., 1985, c. F-7] applications,
which were argued together, seek to review and set
aside conflicting decisions of the Public Service
Staff Relations Board ("Board"), which for ease
of reference will be referred to as the "Quan
decision"' and the "Bodkin decision". 2 Because
I Quan v. The Queen, File No. A-140-89.
2 Attorney General of Canada v. Bodkin, File No. A-293-89.
both decisions involve virtually the same facts and
issues, these reasons apply to both cases.
The salient facts may be briefly stated. The
employees involved in the grievances described
below ("employees") were employed by Canada
Employment and Immigration and members of the
Canada Employment and Immigration Union, a
component of the Public Service Alliance of
Canada ("Alliance"). The Alliance is the bargain
ing agent of the employees for collective bargain
ing and labour relations purposes. On certain
dates, the employees wore an Alliance button,
which measured 2 3 / 4 " by 1 3 A" and on which was
printed "I'm on strike alert". There was testimony
to the effect that the button was worn to promote
union solidarity in relation to perceived delays
encountered at the bargaining table respecting
negotiations for a renewed collective agreement.
Supervisors of the employees asked them to
remove the button which the employees did. The
employees filed grievances pursuant to section 91
of the Public Service Staff Relations Act [R.S.C.,
1985, c. P-35] ("Act"). By their grievances, the
employees maintained that the instructions to
remove the buttons violated their rights under
Article M-16.01 of the Master Agreement which
provides as follows:
M-16.01 There shall be no discrimination, interference, restric
tion, coercion, harassment, intimidation, or any disciplinary
action exercised or practised with respect to an employee by
reason of age, race, creed, colour, national origin, religious
affiliation, sex, sexual orientation or membership or activity in
the union.
In the Quan decision, the Board dismissed the
grievances whereas in the Bodkin decision, the
Board allowed the grievance. In the Quan decision,
the Board concluded that the wearing of the
button did not constitute "activity in the union"
within the meaning of the phrase in Article
M-16.01 of the Master Agreement. In this connec
tion, the Board stated:
Article M-16 of the Master Agreement, upon which this
grievance is founded, concerns itself with ensuring that there
will be no discrimination, interference, restriction, coercion,
harassment, intimidation or discipline exercised or practised
with respect to employees for any of the reasons listed - i.e. age,
race, creed, colour, national origin, religious affiliation, sex,
sexual orientation or membership or activity in the union. The
article seeks to ensure equal treatment for all employees with-
out regard for any of the named characteristics which otherwise
might distinguish one from another.
The key words to be construed here are "membership or
activity in the union". "Membership" in the union presents no
problem in terms of what is meant by article M-16; "activity in
the union" is far more open to interpretation. I do not believe
that "activity in the union" means the same as the phrase
"lawful activities of [an] employee organization" - i.e. union
such as is found in section 6 of the Public Service Staff
Relations Act. Rather I am of the opinion that the former term
is narrower than the latter. I believe the phrase "membership or
activity in the union" was meant to encompass such things as
the holding of office, participation in negotiations, planning and
otherwise engaging in what might be described as the adminis
trative affairs of the union. What I find most interesting is that
it is protection against discrimination, etc., for activity in the
union which is granted by article M-16 not protection for
having participated in activities on behalf of the union or by the
union or for the union. It is simply activity in the union which is
protected and which may not be the subject of discriminatory
treatment as between employees. A look at the French version
of the Master Agreement serves to confirm my conclusions in
this regard. This reads: ... ou son adhésion au syndicat ou son
activité dans celui-ci.
On behalf of the grievor, Mr. Dagger would have me find
that, by wearing the "I'm on strike alert" button, Quan was
engaging in activity in the union. I do not believe that this is the
type of activity meant to be protected by article M-16. I do not
believe that a proper interpretation of article M-16 supports
this contention. 3
Having interpreted Article M-16.01 in this way,
which I believe was error, the Board in the Quan
decision went on to hold that the wearing of the
button had the potential to damage customer rela
tions and jeopardize the employer's public image
and in the facts of the case would be "likely to
cause disruption and difficult public relations for
the employer".' I also believe this was error espe
cially when compared to the approach taken in the
Bodkin decision.
In my view, the Board erred in its interpretation
of Article M-16 by giving a narrower interpreta
tion to it than to section 6 of the Act, which
provides:
6. Every employee may be a member of an employee organi
zation and may participate in the lawful activities of the
employee organization of which the employee is a member.
Although the Board referred to section 6 of the
Act, it said it was dealing with a different matter,
3 Case Book, pp. 127-128.
4 See Case Book, pp. 130-131.
namely, the interpretation of Article M-16.01 of
the Master Agreement.' However, it was conceded
by counsel for the parties that a collective agree
ment cannot take away from the basic rights con
ferred on employees by section 6 of the Act and
that both section 6 of the Act and Article M-16.01
dealt with the same subject matter in so far as
employee rights to participate in union activity are
concerned. Accepting that the question before us
relates to an interpretation of Article M-16.01, I
believe that interpreting the provision involves
trying to ascertain the parties' intention in the
context within which the interpretive question lies.
This approach necessarily takes one to consider the
effect of the language of section 6.
In this respect I fully agree with the reasoning
of the Board in the Bodkin decision:
As is clear from Article M-16, discrimination, interference,
restriction, coercion, harassment, intimidation or any discipli
nary action are prohibited with respect to an employee by
reason of "activity in the union". The words "activity in the
Union" are not defined in the collective agreement. In search
ing for the parties' intention with respect to those words, I have
been mindful of the labour relations context in which this
contract was signed as well as the legislative context. My
assumption is that the parties, as a minimum, intended to
afford employees the same protection already granted to them
under section 6 of the Public Service Staff Relations Act ...
A strict and narrow interpretation of the words "activity in
the union" that would restrict the protection to the internal
administrative affairs of the union disregards the context in
which collective agreements are signed and in the end can only
serve to deprive the relevant Article M-16 of its intended
effect.'
Having so interpreted Article M-16.01 in
Bodkin, the Board then asked whether the employ
er could prohibit the activity during working hours
and, if so, under what circumstances and to what
extent. After reviewing some features of the case
before her, the Board member in Bodkin said:
5 Case Book, pp. 135-136.
6 Case Book, p. 290 a. In Bodkin the representative of the
employer acknowledged that the wearing of the button con
stituted union "activity" that was legitimate and lawful.
My own view is that the wearing of a union button during
working hours is, within certain limits, a legitimate activity in
the union encompassed within the terms of Article M-16. I will
not endeavour to set out the limits as it would be both unwise
and unnecessary since those limits depend on the particular
facts of each case. I will only say that, in my view, the wearing
of a "union button" during working hours constitutes the
legitimate expression of one's views on union matters and,
although not an absolute right, ought to be curtailed only in
cases where the employer can demonstrate a detrimental effect
on its capacity to manage or on its reputation.'
This approach is clearly correct. The Board
member went on to say the following which I also
agree with:
However, one conclusion is inescapable. In considering
whether a union button is a legitimate activity in the union
during working hours, one has no choice but to consider the
statement it bears. As a matter of fact, I have been invited by
both parties to do so. In so doing, my premise has been that the
employer should not have to tolerate during working hours
statements that are derogatory or damaging to its reputation or
detrimental to its operations. It follows that there is a subjec
tive element in deciding whether a union button exceeds the
permissible limits. I have considered the message contained on
the button, "I'm on Strike Alert" and it is my conclusion that
those words do not in any way impinge on the employer's
authority, nor can they be qualified as damaging to the employ
er's reputation. Also, I fail to see how, they can be detrimental
to the employer's operations. In my view, the words "I'm on
Strike Alert" are neutral in that they are neither insulting nor
flattering nor critical of the employer. They constitute a state
ment of fact. My own understanding of those words is that the
employees are contemplating the possibility of a strike. I fail to
see how by communicating this possibility to the public, an
employee is affecting the employer's operations. In fact, there is
no evidence that the employer's operations were affected. As
for the likelihood that the employer's operations might have
been or might be affected, I would have required some evidence
of some kind. In my view, in 1988, at the time of the events, the
possibility of a strike, or an impending strike as the words "I'm
on Strike Alert" imply, were notions which were well embedded
in the Canadian psyche. I have serious doubts that a member of
the public would not have gone about his business with a
particular government department because its employees were
merely contemplating going on strike. 8
In conclusion, the Board in the Quan decision
interpreted Article M-16.01 without appropriate
respect for section 6 of the Act and failed to apply
the test and approach that was correctly taken in
the Bodkin decision as referred to above. As this
was error, the Quan decision should be set aside
and referred back to the Board for reconsideration
on a basis not inconsistent with these reasons. The
'Case Book, p. 291 a.
8 Case Book, pp. 292, 292 a.
application in the Bodkin decision will be
dismissed.
MAHONEY J.A.: I agree.
MACGUIGAN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.