UPDATE 2 (APRIL 4 2018):
Time for another brief update on this post, which began about a month ago when I discussed what was then a hypothetical scenario: What if someone working on behalf of an employer engaged in a collective bargaining dispute purchased a web domain using the exact name of the union and then mischievously created a redirect from that site to an employer website where the employer proselytizes how the dispute is the union’s fault? Would that be an unfair labour practice?
My hypothetical soon became a real case when CUPE 3093 filed an unfair labour practice making this exact argument, naming York University as the employer which has purchased the domain “CUPE3093.com”. I described that unfair labour practice last week in another post where I also posted the parties’ pleadings. York responded to the allegation as follows:
The University did not register or control the domain name CUPE3093.com, nor did persons acting on behalf of the University register or control the domain name CUPE3093.com.
Today, at the first day of hearings for the unfair labour practice complaints, CUPE claimed that a York employee working in the Office of the Dean, Graduate Studies is the owner of the “CUPE3093.com” website, and that the employee “billed the cost of the fake CUPE3093 domain to the Faculty of Graduate Studies“. Here is CUPE3093’s press release on this new development. York responded in a press release stating the following: “York has no knowledge of why, when or for what purpose the URL was registered. The issue will be followed up as an employment matter.”
As they say in the movies, the plot thickens.
I have changed the title of this blog post from “Someone” to a “Someone (a York Employee) Purchased CUPE3093.com ….”
The OLRB hearing was adjourned so that CUPE could serve notice to the York employee who purchased the domain. It will be interesting to watch the cross-examination of the employee in question to see who knew what and when. Will it be York’s position that the employee working in the Faculty of Graduate Studies acted alone without managerial authorization, and that the billing of the domain name to FGS (if that is what happened) was similarly done without authorization or knowledge of the management? It appears that it is York’s position at this point, given its denial of any knowledge of the purchase and its ominous statement that it will treat the issue as “an employment matter”. Did anyone vet or sign off on the expense (which is usually required at York)? Was the employee in such a position where his acts are acts of York or “on behalf of York”, regardless of whether a superior gave expressed direction or authorization for the purchase of the website or any member of senior administration was aware of the purchase? Will York now change its position and argue that buying the website and introducing the redirect does not constitute an unfair labour practice in any event? Lots of interesting questions. Stayed tuned.
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Original Post from March 8, 2018 revised on March 15 2018
You are probably aware that CUPE 3903, which represents contract teachers and TAs at York University, is on strike over job security issues and working conditions. This post considers a very narrow but interesting legal question arising from this strike.
I was recently directed to a Twitter exchange that alleged that York University purchased the domain name CUPE3903.com during the last strike in 2015 and used the website to redirect students to a York controlled website on which the employer posted information about the strike.
I have no way of verifying who purchased the CUPE3903.com domain name back in 2015 because there is a privacy shield blocking that information. It could have been York University as a deliberate and provocative labour relations strategy, or it could have been some other person or entity up to mischief. A lawyer can (and may) uncover who purchased the domain name, but for the purposes of this blog entry, let’s treat the potential legal issues as a hypothetical scenario.
When I searched CUPE3093 last week, I was redirected to Google’s home page. However, through the magic of time machine websites, it was possible to go back and see where CUPE3903.com used to redirect visitors. Until recently, if you visited CUPE3903.com, you got redirected to this York University website (this is a screen capture from 2016 of the page to which you were directed if you visited CUPE3903.com). The page is a York webpage that includes a written letter from the previous York President announcing the end of the 2015 strike.
Today (March 15), I just happened to hit the link and, wouldn’t you know it, someone once again changed the redirect back to York University’s website about the strike. Try it yourself. On this website, York has posted information for students, and you can also find a link to a document York circulated called Memorandum on a Path Forward in which York explains that CUPE 3903’s unreasonable demands are to blame for the strike. So, to recap, someone searching the name of the union and finding “CUPE3093.com” is immediately redirected to a website controlled by the employer where the employer blames the union for the strike.
Is It Unlawful for an Employer to Create a Website Using the Union’s Name?
I assume from the Twitter feed that it was not CUPE 3903 (the actual union) that purchased the CUPE3903.com domain name. Certainly it wouldn’t make any sense for CUPE to be redirecting people to a York University website. Therefore, as noted above, it appears that some other entity purchased the domain name, presumably with the intention of confusing or at least redirecting people searching for “CUPE 3903” to another website controlled by York University.
I’m no intellectual property law expert, but I’m fairly certain that the tort of “passing off” or trademark infringement are engaged when a third party registers a domain name that exactly copies the name of an existing union for the purpose of redirecting people looking for that union to a third party website. (See Chapter 32 of The Law of Work for a discussion of the tort of passing off and trademark law in the employment context and also this article by Professor Scassa on “IP on the Cyber-Picket Line” (Hat-tip Ben Oliphant)). Any IP lawyers want to chime in on that point?
Would such behaviour amount to an unfair labour practice?
Since this is a blog on work law, let’s focus on the labour law angle of this “hypothetical” fact scenario. The scenario is this: During collective bargaining and a work stoppage, an employer purchases a website that directly appropriates the name of the union with which it is bargaining, and then redirects all traffic going to that website to an employer controlled website that provides information about the strike and bargaining through the employer’s viewpoint.
Would that conduct run afoul of any labour laws?
Two possibilities jump immediately to mind. Firstly, the union could argue that this behaviour constitutes unlawful “interference with the administration of the union”. As examined in Chapter 40 to The Law of Work, this law prevents unionized employers from behaving in ways that interfere with or undermine the union’s efforts to represent employees. The key provision in Ontario is found at Section 70 of the Labour Relations Act.
I’m not aware of a case with identical facts to our scenario, but my gut feeling is that a labour board would be very concerned about an employer that misappropriates the union’s name in order to redirect people searching on-line for the union to an employer controlled website. A reasonable person would expect that a website called CUPE3903.com is controlled by CUPE 3903 and not the employer engaged in bargaining with that union. The employer’s intent here would be to deceive, and to direct people away from the union’s messaging and towards the employer’s messaging. This is actually what is happening in the York situation (although, again, I have no evidence that it is York that purchased the domain name or created the redirect to York’s website). Do you think such behaviour would amount to interference with the administration of CUPE 3903?
The second possibility is that the employer’s behaviour violates the duty to bargain in good faith and to make reasonable efforts to conclude a collective agreement (Section 17 of the OLRA). I do not think it is a stretch to argue that the employer is acting dishonestly and in bad faith by purchasing a website that directly appropriates the union’s name for the purpose of redirecting people away from the union’s messaging in collective bargaining. Honesty and good faith are cornerstones of the duty to bargain, and an employer using this tactic could in my opinion be acting contrary to the spirit of the duty.
Quite apart from the legality of the tactic, an employer that misappropriates the union’s name in order to advance its interest in bargaining is certainly poisoning the bargaining climate. The employer must certainly know that this would anger the union and its supporters and so the move is provocative to say the least. I wonder how the employer in our scenario would react to the union purchasing a website that appropriates the employer’s name and then using that website to redirect visitors to the union’s website?
Issues for Discussion
Do you think a labour board would find that an employer who creates a website using the union’s name and then redirect traffic to the employer’s website is violating labour relations legislation?
If there are any IP lawyers out there, please chime in. Is it unlawful for an employer to purchase a domain name that directly appropriates the name of a union?