On October 8, 2008, Canada Post issued a corporative directive to its supervisory staff (“team leaders”) regarding a button that was first distributed by CUPW without incident in 2005. The button, “Your public post office delivers… for now” was recently distributed as part of the ongoing campaign regarding the closed-door strategic review that was initiated in April 2008 by Steven Harper’s Conservative Government.

In that corporate directive, Canada Post’s team leaders were instructed to direct employees to remove the buttons under threat of suspension. Decades ago, Canada Post management defined itself by imposing such ultimatums. It would now appear that the Moya Greene’s Modern Post is reverting to a labour relations approach that belongs in the past.

In unionized work environments, Union buttons are hardly an uncommon sight. Whether worn in the context of collective bargaining or in support of Union campaigns, buttons are a form of lawful Union activity within the meaning of Article 5.1 of the Collective Agreement, Section 94 of the Canada Labour Code, and the Charter of Rights and Freedoms.

Given the history between these parties, it should not be surprising that the parties have already dealt with the issue of buttons at arbitration.

In a CUPW case that specifically dealt with the issue of Union buttons (Canada Post Corp. and CUPW (1986) 26 L.A.C. (3d) 58), Arbitrator Bruce Outhouse expressed the following view:

Having considered the evidence and the submissions of the parties, I have reached the conclusion that the grievance should succeed. It is common ground that the wearing of the button was a lawful union activity. The button itself was not derogatory, provocative or obscene. Neither was it overtly critical of the employer or government. Consequently, the wearing of the button by the grievor did not pose any serious risk of harm to the employer, either in terms of customer relations or otherwise. That being the case, I find that the balance of competing interests in this case favours the union rather than the employer.

In a 1992 CUPW policy grievance that was filed regarding a corporate directive prohibiting Union buttons, (CUPW R01-91-00005), Arbitrator Innis Christie canvassed numerous authorities dealing with the issue of buttons and stickers, and cited with approval the words of Chief Justice Iacobucci:

The wearing of a 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.

In his ruling, Arbitrator Christie held that the wearing of a button is a protected activity under both the Collective Agreement and the Canada Labour Code:

The wearing of a Union button directly related to the collective bargaining process by a unionized employee is a union activity within the meaning of Article 5 and is protected by that provision of the Collective Agreement as well as by the Canada Labour Code.

Canada Post is fully aware of the above arbitral decisions because it was a party to those decisions. For reasons best understood by the current management regime, Canada Post apparently sees wisdom in resurrecting disputes that were put to bed long ago. It should be noted that the two CUPW cases cited above are by no means the only authorities on the issue of Union buttons.

In Steinberg Inc. and U.F.C.W., Local 175, 17 C.L.A.S. 78, Arbitrator Jean Beaudry dealt with a grievance that very closely resembles the present circumstances. In the facts of that case, a group of employees were suspended for wearing buttons that stated, Say No To Sunday Shopping. In sustaining the grievance, the arbitrator took into account the legitimate concerns of the employees who stood to be affected by the introduction of Sunday shopping:

I find as a fact, on all of the evidence, that the grievor’s were concerned, at all times, if the impact of Sunday shopping in their future working conditions. Those are legitimate considerations for either an employer or employees. The grievors were simply expressing their opposition to the real possibility of the employer making a change in these conditions.

For all the reasons outlined above, I find that the grievors were involved in a legitimate union activity permitted by law and the collective agreement. The grievances are therefore allowed.

In Health Employer’s Association of British Columbia v. Hospital Employees’ Union (Davis) [2004] B.C.C. A.A.A. No. 11, Arbitrator J.P. Sanderson adopted similar considerations in the context of a Union sticker that opposed contracting out:

There is another factor to be considered in relation to the reasonableness of the employer’s actions. The employer permitted similar sized union stickers, protesting against violence against women, to be worn by employees, including the grievor on past occasions. This is a legitimate subject for political expression by employees. But so is contracting out. In neither case is there evidence that harm was done to the employer’s business or to the welfare of the residents. Neither message attacked or even identified the employer. Yet one message was allowed and the other was banned.

In his ruling, Arbitrator Sanderson rejected the employer’s argument that it was entitled to discipline employees who chose not to remove the stocker:

As I have already said, I find the grievor’s actions in this case to be a reasonable expression of her views regarding the effect of contracting out in the context of what was happening at this particular facility. Such conduct cannot be considered unlawful. Accordingly, I am unable to find any proper basis for the employer to issue such a direction to remove the sticker and threaten discipline if the employee did not do so. Such actions constitute interference with the employee’s lawful activity in the Union, a right strongly provided to employees under Article 4.02

In Telus and T.W.U. (Satterthwaite), Arbitrator Sims similarly held that the wearing of Union pins and logos is a form of expression protected by collective agreement and statutory provisions:

Applying these principles to the case before me, I conclude that the wearing of the pins and logos involved here is indeed a form of expression, and that freedom to express oneself, by wearing such an insignia, is indeed a fundamental Canadian value. It is also a form of protected activity within the meaning of the Canada Labour Code, and an activity that falls within the meaning of Article 4.02 of the collective agreement, interpreted, as it must be, in the context of statutory protections.

The point to be made by each of the above cases (and many others that were not cited) is that arbitration boards accept that wearing a Union button is a legitimate union-related activity and is thus protected by most collective agreements, as well as by the applicable statutory authorities.

Canada Post’s corporate directive suggests that arbitration is the proper forum for addressing the issues raised by the button. However, it is of note that Arbitrator Christie observed that the “work now, grieve later” rule would not be applicable in circumstances where the wearing of a Union button has a time sensitive significance:

In my view, the only time the “work now, grieve later: rule would not apply to the wearing of union buttons is where the union is actively involved in an organizing campaign, in collective bargaining, or in some other context where the protected wearing of a union button has a time sensitive significance which would be lost in the delays inherent in the grievance and arbitration process.

In order to justify its threats, certain members of Canada Post management were witnessed telling employees that Canada Post has the “right to manage”. Other management representatives were witnessed telling CUPW members that the Union’s buttons would have an adverse effect on Canada Post’s business interests. That latter claim remains to be seen; the buttons in question are part of a national campaign to preserve the integrity of a public post office. Nonetheless, Canada Post will have the full opportunity to prove that the notion of a public post office would run counter to its business interests when the parties travel back to the future to arbitrate the suspensions that have now been handed out to employees who refused to remove the button.

Your public post office delivers…for now,

Ken Mooney

Grievance Officer

CUPW Pacific Region