Article

Speaking Up in Support of Collective Bargaining: Your Rights and Responsibilities

Lisa Mastrobuono

A positive outcome of the current provincial government’s first year in office has been increased public engagement by ETFO members around education-related issues. Alarmed at the impact of education funding cuts, many members believe they have a professional responsibility to voice their concerns to parents and community members in an effort to protect Ontario’s internationally-recognized public education system. Many ETFO members will continue to engage directly with parents and community members in support of negotiations as we enter the 2019 round of collective bargaining. Members should be aware that when it comes to speaking out publicly about bargaining-related issues, the courts are generally on their side.

Union Members' Freedom of Expression Under the Charter

In common-law, employees have certain legal obligations to their employer. They include acting in their employer’s best interests, not competing with their employer’s business interests and refraining from publicly criticising the employer. These types of obligations are defined by a legal term called the “duty of loyalty.”

However, in Canada the law also places significant limitations on the nature of that duty to loyalty. This is particularly true in the public sector, where employers like school boards are subject to the Canadian Charter of Rights and Freedoms and its guarantee of freedom of expression.

The duty of loyalty owed to an employer does not require absolute silence from educators working in public school boards. Like other unionized workers, ETFO members have a substantial right to freedom of expression under the Charter when they share their opinions about issues like collective bargaining. In addition, arbitrators, labour boards and the courts have supported educators’ rights under the Charter to express their views on matters such as education funding and class size, absent evidence of harm to students or to the education system in general. This means a school board directive that prohibited educators from expressing their views on any matters relevant to the workplace would likely be found to be in violation of the Charter.

Freedom of Expression is Not Absolute

ETFO members are not required to maintain neutrality around labour relations issues. They have a right to engage in discussions that may be critical of the government or their employer when engaging in protected union activities like collective bargaining. However, despite the significant protections that the Charter provides, an employee’s freedom of expression is not absolute. For example, employees cannot make comments about their employer that are false or malicious.

The line between your ability to speak freely as a unionized worker and your responsibilities to the employer can be difficult to define. The line is dependent on the specific context around each situation. ETFO members often reach out to their local or to the provincial office to help define that line. Here are some of the questions raised most frequently by ETFO members about freedom of expression around Charter-protected activities.

Can I wear my ETFO button at school?

It has been well established by Canadian courts that employees who wear a button, t-shirt or accessory in the workplace for a lawful union action are exercising their right to freedom of expression around a protected activity. An employer that attempts to curtail such actions would be violating your rights under the Charter, and ETFO would aggressively protect those rights through appropriate legal channels.

While unionized workers have substantial freedom to wear items in the workplace that support union-related and collective bargaining activities, there are some limits to exercising that freedom. For example, items worn at work by ETFO members should include messaging that would be acceptable in a school environment (e.g., no profanity, no violent imagery, etc.) and would not disrupt their normal work activities.

Can I provide bargaining-related materials (flyers, buttons) to interested parents during progress report interviews?

You should not use the interview time you have allocated to a parent to discuss bargaining issues or distribute bargaining-related materials. Wait until after you have discharged your professional duties (i.e., after the interview) to provide such materials to an interested parent.

Keep in mind that some parents may not share your views or may not be receptive to receiving this type of information on parent-teacher interview days. A parent’s lack of interest should be respected.

My local is holding a public town hall about education cuts. My principal told me I cannot post a flyer for the town hall on my school’s community bulletin board. What do I do?

As a professional courtesy and to minimize potential friction, it is helpful to reach out to the principal and discuss your action prior to posting material on a non-union bulletin board at school. If your school’s community bulletin board includes other general interest matters and you are complying with established protocols (e.g. flyer size, etc.), you should be able to post the flyer.

If your principal directs otherwise, call your local ETFO office as soon as possible.

I’m concerned about misinformation in the media around negotiations. Can I talk to individual parents about my concerns?

If you are comfortable talking to interested parents about negotiation-related issues, you have every right to do so. As long as your actions are not interrupting instructional time or your professional duties it is within your rights to provide interested parents with information about issues like bargaining, the pedagogical importance of the teacher/DECE team to the Full-Day Kindergarten program, or the impact of larger class sizes on student achievement and well-being.

Criticisms about the government’s education announcements, your school board’s bargaining positions, etc., should be delivered in a professional manner and be focussed on the issues. It is important to avoid making disparaging comments about government or school board personnel.

Can I initiate conversations with my students about ETFO negotiations?

There are boundaries that educators need to maintain in their face-to-face and online interactions with students. The boundaries are defined by, among other things, the policies established by their employer as well as the professional standards set by their regulatory body. In the interest of maintaining those boundaries, ETFO members should avoid initiating discussions with students about bargaining issues.

Can I use my classroom email list to send parents a flyer about education funding cuts?

Information collected or managed by ETFO members in their capacity as school board employees should only be used for work-related activities. For example, emails collected by ETFO members to keep parents apprised of their child’s academic progress, or a school Twitter account administered by an ETFO member, should not be used for political purposes or to disseminate union information about bargaining. 

Where can I get more information about speaking up in support of collective bargaining? 

If you want to actively support the 2019 round of collective bargaining at school, in the community or on social media, but need more information about your rights and responsibilities, you should consult with your ETFO local office or contact Professional Relations Services at the provincial office.

Can I Use Social Media to Express Support for My Union During Negotiations?

Social media has become a ubiquitous and incredibly powerful tool. At its best, social media provides an online forum where collective action can generate positive social and political change. ETFO members have embraced social media platforms to discuss education and political issues directly with members of the public, the media and elected representatives. Members are also using social media to engage in “online activism” in support of their union during collective bargaining rounds. 

Union members’ freedom to express opinions about bargaining-related issues is a fundamentally important right under the Canadian Charter of Rights and Freedoms, and that right extends to posts made online and on social media. However, that does not mean “anything goes” when using Facebook, Twitter or other social networks. There are limits to what can be expressed in any forum, including online. 

To avoid sanctions by your employer, members should ensure that all posts are written in a manner that is serious, issue-based and professional. Members should be aware that their employer:

  • has the right to restrict employees’ personal use of social media during work hours;
  • can legitimately restrict employees from using its infrastructure, equipment and technology to create and distribute information about bargaining, even outside working hours; and
  • can take disciplinary action against an employee for online comments about the employer that are false or malicious.

When posting political and bargaining content on social media, keep this advice in mind:

  • Know there is no “private” on social media: Consider all your social media posts (including posts you have protected through privacy settings) to be public and assume they’ll be read by your employer. 
  • Stick to the topic: Your online comments should focus on ideas and issues. Avoid posting content that denigrates or insults individuals.
  • Be professional at all times: Where your right to freedom of expression overlaps with your job, it’s best to ensure your posts are professional, temperate and thoughtful, not heated, hostile and impulsive.
  • Slow down: Pause and reflect before expressing your views on social media sites.

Lisa Mastrobuono is the Coordinator of Collective Bargaining at ETFO.