Reasons for Decision

Syndicat des enseignantes et enseignants de la communauté Innue de Pessamit-CSN

complainant,

and

Conseil des Innus de Pessamit,

respondent.

The Canada Industrial Relations Board (the Board) was composed of Ms. Louise Fecteau, Vice‑Chairperson, and Messrs. Richard Brabander and Norman Rivard, Members. A hearing was held in Baie-Comeau, Quebec on December 9 and 10, 2015.

The three files listed above were heard during these two hearing days. Although the three complaints filed by the Syndicat des enseignantes et enseignants de la communauté Innue de Pessamit-CSN (the union) raise separate issues, they nonetheless concern events that took place in the same period, from June 18, 2010, to April 1, 2012.

Appearances

Mr. Benoît Laurin, for the Syndicat des enseignantes et enseignants de la communauté Innue de Pessamit-CSN;

Mr. Kenneth Gauthier, for the Conseil des Innus de Pessamit.

These reasons for decision were written by Ms. Louise Fecteau, Vice‑Chairperson.

I. Nature of the Complaints

[1] These are three complaints of unfair labour practice filed pursuant to sections 24(4) and 94(3) of the Canada Labour Code (Part I–Industrial Relations) (the Code) by the union on behalf of the teachers (the teachers) at the primary school (Nussim school) and secondary school (Uashkaikan school) in Pessamit. The union alleges that the employer, the Conseil des Innus de Pessamit (Conseil des Innus or the employer), changed the terms and conditions of employment of the teachers at Nussim and Uashkaikan schools in spring 2012 without its consent.

[2] The first complaint of unfair labour practice (file no. 29424-C) was filed with the Board on May 16, 2012. The union alleges that the employer violated sections 24(4) and 94(3) of the Code by changing the teachers’ terms and conditions of employment on or about February 17, 2012; at issue are the floating holidays that were cancelled by the employer. The union is asking that the terms and conditions of employment be restored to those in effect before the changes. According to the union, the teachers have allegedly sustained a reduction in salary of 7% to 14% because of this cancellation.

[3] The second complaint of unfair labour practice (file no. 29514‑C) was filed on June 29, 2012. The union alleges that, on or about April 1, 2012, the employer changed the terms and conditions of employment, without the union’s consent, of 12 specialized teachers at Nussim school. It allegedly cancelled a premium of $800 applied to their annual salary. The union is asking that the terms and conditions of employment be restored to those that were in effect prior to the changes and that the amounts owing be reimbursed retroactively.

[4] The third complaint of unfair labour practice (file no. 29515‑C) was filed on June 29, 2012. The union alleges that the employer changed the terms and conditions of employment of certain teachers at Uashkaikan school. According to the union, on or about April 1, 2012, the employer allegedly asked some teachers at Uashkaikan school to teach more than 24 periods, without paying them the wages established in a teaching contract signed in December 2011, the terms and conditions of which were retroactive to August 2011.

II. Preliminary Objection

[5] Counsel for the employer raised a preliminary objection, arguing that the three complaints were filed after the prescribed time limit. The Board heard arguments in this regard during the hearing.

[6] The Board dismisses the preliminary objection raised by the employer, because it considers that it was untimely, more than three years after the complaints were filed. Nevertheless, after hearing the parties’ arguments concerning this issue, the Board was not satisfied that the complaints were untimely and decided to hear the merits of the case.

III. Section 94(3)(e) of the Code

[7] The union has filed the three complaints under section 24(4) of the Code and also under section 94(3)(e) of the Code. The Board notes that the union’s evidence supported only the alleged violation of section 24(4) of the Code.

[8] Therefore, the Board dismisses the part of the complaint under section 94(3)(e) of the Code for lack of evidence, in accordance with section 16(o.1) of the Code.

IV. Background and Facts of the Three Complaints

[9] It is important to recall the context in which the union filed the three complaints on May 16 and June 29, 2012. The facts on which these cases rely are not disputed.

[10] The union submitted an application for certification to the Board on November 21, 2011. The employer raised a preliminary objection concerning the timeliness of the application for certification and served a Notice of Constitutional Question, pursuant to section 57 of the Federal Courts Act, RSC 1985, c F-7.

[11] After hearing the parties on this constitutional question, the Board dismissed the employer’s preliminary objection, found that it had constitutional jurisdiction to entertain the application for certification filed with it on November 21, 2011, and granted the union’s application for certification (Conseil des Innus de Pessamit, 2012 CIRB 653). Thus, the union was certified on August 15, 2012, to represent the teachers of the Innu community of Pessamit (order no. 10295-U).

[12] The three complaints at issue here were filed after the application for certification dated November 21, 2011.

[13] Therefore, it is important at this stage to review the history of the teachers’ terms and conditions of employment in effect with the employer beginning in June 2010:

• On June 18, 2010, a Memorandum of Agreement (MOA) was signed between the teachers of Nussim and Uashkaikan schools of Pessamit and the employer in which the teachers achieved pay equity with their counterparts in the elementary and secondary school systems of Quebec.

• The MOA provided for compliance with the rules and terms of application set out by Quebec’s Ministère de l’Éducation, du Loisir et du Sport (now the Ministère de l’Éducation et de l’Enseignement supérieur (MES)) with regard to teaching. It was applicable to the 2010–11 school year with a possibility of renewal for the following year.

• In late March 2011, the employer had to contend with major financial difficulties and underwent a reorganization which led to a cut in the teachers’ regular working hours. The Conseil des Innus has adopted an employment policy that provides for freezing salaries and reducing hours of work. New employment contracts were imposed by the employer which changed the work schedules and froze the teachers’ salaries.

• On or about November 7, 2011, the employer decided to introduce 19 floating holidays into the school calendar, 13 of which were considered “Aboriginal education days” dedicated to Aboriginal culture, as suggested by the teachers, to appease their discontent. These 13 Aboriginal education days, held on Fridays, were delivered by non-teaching staff of the Conseil des Innus, thus reducing the teachers’ workload every second Friday. The school calendar was reduced to 166 days from 180 days.

• On November 21, 2011, the union filed its application for certification to represent the teachers at both the primary and secondary schools.

• In December 2011, at the acting director’s urging, a new employment contract was signed between certain teachers at Uashkaikan school and the employer concerning the addition of teaching periods.

• In February 2012, the MES and the Department of Aboriginal Affairs and Northern Development Canada (AANDC) informed the employer that the Aboriginal education days project was not consistent with the “educational service delivery standards” (translation) and demanded that it comply with the regular teaching days, subject to a 15% cut in funding granted. Accordingly, beginning on February 17, 2012, the teachers were required to teach every Friday and make up for the leave taken up to then.

• On April 1, 2012, following the annual budget review for the fiscal year ending March 31, 2012, the Conseil des Innus instructed the Uashkaikan school’s administration to take note that all premiums to teachers would be eliminated beginning in April 2014. It also cancelled the contracts it had changed in December 2011 and re-established those in effect before that date.

• In file no. 29424-C, he draws the Board’s attention to the names of all of the teachers subject to this complaint, the list of which was filed into evidence. He is asking that the terms and conditions of employment that were in effect in September 2011 be restored.

• In file no. 29514-C, he is asking the Board to order the employer to resume paying the $800 premium to specialist teachers and to reimburse the amounts lost retroactively to April 1, 2012.

• In file no. 29515-C, he is asking the Board to order the employer to restore the terms and conditions of employment that were in effect prior to the changes that occurred on or about April 1, 2012, and to reimburse the teachers who worked more than 24 teaching periods beginning in the 2011–12 school year.

V. Written Submissions of the Employer

[14] With regard to the complaint in file no. 29424-C, the employer submits that the MOA signed on June 18, 2010, aligning the teachers’ salaries with those of the MES teachers was valid for the 2010–11 school year beginning September 1, 2010, and ending August 31, 2011.

[15] It adds that the changes to work schedules in March 2011 was linked to its financial difficulties and affected various services, including teaching. Consequently, new employment contracts were signed in March 2011, specifying that the work week would be 35 hours per week for 21 weeks, until August 26, 2011, and 30 or 32.5 hours per week, as the case may be, for 31 weeks, until March 31, 2012.

[16] With regard to the contract of Ms. Mélanie Guay, the employer specifies that the contract signed at the end of March 2011 provides for a salary of $47,427.65 per year, based on a schedule of 35 hours per week until August 26, 2011, and 32.5 hours per week for 31 weeks, until March 31, 2012. It argues that it would be incorrect to claim that the teachers have sustained a reduction in salary.

[17] With regard to the 19 floating holidays, 13 of which were Aboriginal education days, created in November 2011, the employer indicates that the project was submitted to AANDC for approval. AANDC required that the 180-day school calendar be re-established.

[18] The employer submits that on November 9, 2011, AANDC informed it that the new school calendar was conditional upon MES approval. On February 6, 2012, AANDC informed the employer about the imposed return to the regular school calendar. On February 17, 2012, the teachers were returned to work based on the regular school calendar. The employer submits that the Aboriginal education days were not part of the terms and conditions of employment in effect at the time of the application for certification.

[19] With regard to the complaint in file no. 29514-C concerning the specialist premium, the employer considers that the letter issued to Ms. Mélanie Guay upon the reclassification of her position for 2009–10 is not a commitment on the employer’s part to pay an annual premium of $800 after 2009–10.

[20]  The employer submits that the MOA of June 2010 in which the teachers achieved pay equity with their counterparts in Quebec did not provide for a specialist premium. This memorandum set out salaries according to the pay scales established by the MES. The employer adds that the MES makes no provisions for a specialist premium.

[21] The employer submits that beginning on June 18, 2010, the specialist premium was paid in error by payroll services, and again when the employer underwent a reorganization in March 2011. It points out, nonetheless, that the employment contracts signed by the teachers in March 2011 did not provide for a specialist premium. The employer adds that it discovered the error during the annual budget review for the fiscal year ending March 31, 2012, and rectified the situation.

[22] With regard to the complaint in file no. 29515-C concerning the fact that some teachers allegedly worked more than 24 periods without pay, the employer reiterates that the March 2011 reorganization led to cuts in the teachers’ regular working hours. However, the employer acknowledges that some teachers worked more hours than stipulated in their employment contract. It considers that the December 2011 agreement or employment contract of Ms. Denise O’Leary, filed into evidence, and that of the other teachers subject to this complaint are not valid, because they do not comply with the Employment Policy of the employer in effect beginning April 1, 2011. These contracts should have been authorized through a resolution of the Conseil des Innus to be valid.

[23]  According to the employer, the teachers subject to the present complaint have not been required to teach more than 24 periods without being paid for overtime hours. It argues that the payment of overtime hours is made from a budget that is separate from the salary budget, in other words a supplementary budget, and that all of the overtime hours worked prior to March 31, 2012, have been paid.

VI. The Evidence

[24] The following evidence is relevant in all three complaints. The union called four witnesses: Ms. Marie-Josée Simard, Ms. Mélanie Guay, Mr. Jean-Marie Vollant and Ms. Denise O’Leary.

[25] For its part, the employer called five witnesses: Ms. Manon Rock, Mr. Jean Vollant, Mr. Jean-Claude Vollant, Ms. Marie-Claude Allard and Ms. Danielle Rousselot.

[26] Only the testimonies relevant to deciding the questions at issue are summarized below.

A. The Union

1. Ms. Marie-Josée Simard

[27] Ms. Simard has been a teacher since August 1996 at the Nussim school and was union vice-president in November 2014. She indicates that the employer aligned the teacher’s salaries with the salary scale used for public sector teachers in Quebec in June 2010. She is of the view that the pay equity achieved comprised a salary increase for the teachers of both schools.

[28] Ms. Simard indicates that the MOA came into effect on June 18, 2010, for the 2010–11 school year and was not renewed for the following school year.

[29] Ms. Simard argues that the employer changed the employees’ terms and conditions of employment beginning on April 1, 2011, prior to the end of the 2010–11 school year, following the introduction of the Employment Policy adopted by the Conseil des Innus in spring 2011. She submits that the Policy provided for a wage freeze for all employees, including the teachers, and gave rise to wage reductions. Ms. Simard personally sustained a wage reduction of 7%.

[30] Ms. Simard also indicates that the policy adopted by the employer reduced the number of regular working hours from 35 to 32.5 hours per week.

[31] Ms. Simard explains that Mr. Jean-Marie Vollant, then Director General, allegedly gathered all the teachers to announce this new policy to them in March 2011. She indicates that, during the meeting, all of the teachers received a new employment contract which contained new salary conditions. She adds that everyone was required to sign the contract under penalty of losing their jobs.

[32] Ms. Simard states that, following this salary reduction, the teachers were unhappy and met to propose a revised version of the 2011–12 school calendar to the employer. The employer allegedly agreed to revise the teachers’ work schedule for the 2011–12 school year; the new schedule was such that they did not have to report to the school every second Friday, thus reducing the number of teaching days to 166 rather than 180. These Fridays were considered and identified as floating holidays.

[33] Ms. Simard states that in February 2012, the employer again changed the school calendar, restoring the 180 teaching days. However, it retained the salary reduction decreed in March 2011.

[34] On cross-examination, Ms. Simard indicated that it was the first time the employer changed the school calendar the way it did in September 2011. She also admitted that the employer was contending with serious financial difficulties and that a co‑manager had been imposed on the employer by AANDC. Ms. Simard did not remember at what point the teachers met with the co‑manager.

[35] Ms. Simard admits that the collective agreement of the Quebec teachers does not provide for a specialist premium.

2. Mr. Jean-Marie Vollant

[36] Mr. Vollant was acting Director General from 2010 to 2011 for the employer, then Director General from 2011 to 2012. He still works for the Conseil des Innus as secretary and registrar. Mr. Vollant explains that the teachers must be present in the schools 200 days per year and must teach 180 days.

[37] Mr. Vollant indicates that all employees, including the teachers, sustained a salary reduction in March 2011 generated by a reduction in working hours. He adds that salaries were also frozen. He explains that the employer was contending with considerable financial difficulties. He adds that the co‑manager, along with the employer, proposed this solution to reduce the accumulated deficit. This is the context in which the floating holidays, two Fridays per month, were proposed for the school year beginning in September 2011.

[38] Mr. Vollant explains that the schools’ administration and the students’ parents objected to the changes in the school calendar. Mr. Vollant indicates that after a few meetings with the MES and AANDC, they were required to return to the 180-day school calendar and make up the teaching days that had been declared floating holidays up to then.

[39] On cross-examination, Mr. Vollant confirmed that funding for the Conseil des Innus essentially comes from AANDC and Health Canada. He stated that these are its two principal sources of revenue and that the employer did not have taxation jurisdiction or receive any property tax revenue.

[40] Mr. Vollant explains that AANDC identified a deficit of approximately $25 million to $30 million in 2007, and consequently imposed a co‑manager on the employer to contain that deficit; the only other option was trusteeship. Accordingly, from 2008–09 to 2012, the co‑manager made all the decisions and implemented financial management mechanisms.

[41] Mr. Vollant indicates that 42 employees out of 350 were laid off in February 2011 and that the others sustained a reduction in their regular working hours. He explains that all lines of business were reviewed, including the teaching sector.

[42] Mr. Vollant explains that the co‑manager drafted the new employment contracts imposed on the teachers in March 2011.

3. Ms. Mélanie Guay

[43] Ms. Guay has been teaching English at Nussim school since 2008. She says she received an employment contract from her employer, which she signed in June 2011. She indicates that her contract provided for a specialist premium of $800, allocated by pay period for the current year. She states that she receives a higher salary than the other teachers because of her specialty. Ms. Guay states that other teachers at the elementary level also receive this premium. They are: Ms. Marianne Vallée (religious education), Ms. Agathe Vachon (pre-school education), Ms. Yolande Simon (pre-school education), Ms. Nicole Hervieux (pre-school education), Ms. Émilie Riverin (pre-school education), Ms. Madeleine Benjamin‑Hervieux (pre-school education) and Ms. Jacqueline Simon (complementary services).

[44] Ms. Guay indicates that she was entitled to this premium from the time she was hired, but that it was withdrawn on April 1, 2012. Ms. Guay states that she did not immediately notice that she was no longer being paid the premium, because the amount was distributed over the school year and equalled $0.44 per pay.

[45] In April or May 2012, Ms. Guay allegedly went to see the school principal to ask why her specialist premium had been withdrawn. She was allegedly told that it was a decision made by the employer.

[46] Ms. Guay points out that the new employment contract she had to sign in 2011 provided for a reduction in regular working hours from 35.5 to 32.5 hours per week. In her view, this meant a salary reduction for her.

[47] Ms. Guay confirms Ms. Simard’s testimony that the MOA of June 2010 provided pay equity with the public sector teachers in Quebec. She explains that the employer did not indicate to her that the specialist premium would be withdrawn in June 2010.

[48] On cross-examination, Ms. Guay admitted that the MOA of June 2010 reduced her working hours; however, she adds that there was no mention of withdrawing the specialist premium.

4. Ms. Denise O’Leary

[49] Ms. O’Leary has been a teacher at the Uashkaikan school since 1999. She teaches mathematics full‑time. In 2011–12, she returned from sick leave and was working part‑time. She indicates that she signed a first employment contract with the employer in March 2011. Ms. O’Leary says that she sustained a reduction in regular working hours, dropping from 35 to 30 hours per week for the 2011–12 school year, like the other teachers at the school.

[50] Ms. O’Leary indicates that she taught more than 24 periods during the 2011–12 school year, despite the reduction in work hours imposed by the employer. She allegedly taught 26 periods rather than 24, each period 75 minutes long. She explains the way teaching periods are calculated to show that she sustained a cut in salary. She states that a premium of $5,863 was provided in her contract for the 2011–12 school year.

B. Amounts Claimed

[51] Before concluding his evidence, counsel for the union detailed the amounts claimed for each of the present complaints, indicating that the changes in the teachers’ terms and conditions of employment were made although the certification application had been filed with the Board:

C. The Employer

1. Ms. Manon Rock

[52] Ms. Rock has worked at Nussim school since 1999 with students who have learning difficulties. From 2009 to 2010, she was acting principal of the school; she was also the principal of the school from July 2010 to July 2012.

[53] Ms. Rock explained the MOA signed with the teachers in June 2010, which provided pay equity with the public sector teachers in Quebec. She explains that shortly afterward, in March 2011, the regular working hours of all the teachers were cut with the work week dropping from 35 hours to 32.5 hours per week. The result of these cuts was a reduction in the teachers’ salaries.

[54] Ms. Rock explains that the teachers wanted to take a leave day every second Friday as compensation following the reduced work hours and wage losses. She adds that not working every second Friday reduced the work week from 32.5 hours to 26 hours per week.

[55] Ms. Rock explains that AANDC ordered the employer to return to the school calendar containing 180 days of teaching beginning in February 2012. She explains that she was apprised of this situation on February 15 during a meeting with AANDC and the MES.

[56] On cross-examination, Ms. Rock explained that it was the teachers who proposed that the employer compensate for the reduction in work hours by allowing floating holidays.

2. Mr. Jean Vollant

[57] Mr. Vollant has been a physical education teacher at the Uashkaikan school since 1989. From 2009 to 2012, he was also the school principal.

[58] He relates the events of 2011–12 during which the co‑manager imposed drastic measures by cutting the budget.

[59] With regard to the teachers’ schedules, he indicates that they must teach 24 periods during a nine-day cycle. He gives the example of a professor who earns an annual salary of $48,000 for whom teaching 24 periods means he will receive $2,000. He adds that if the professor teaches more than 24 periods, he will receive additional pay.

[60] Mr. Vollant indicates that, given Ms. O’Leary’s work schedule, filed into evidence, she worked 26 periods in a nine-day cycle, for 75 minutes per period.

[61] Mr. Vollant explains that the teachers at his school wanted to see floating holidays introduced to compensate for the salary cuts in March 2011. The employer agreed to introduce floating holidays into the 2011–12 school calendar in this context. He indicates that the support staff would take care of the students and that this practice of floating holidays ended on or about February 13, 2012.

[62] On cross-examination, Mr. Vollant indicated that Ms. Rock suggested that floating holidays be introduced into the 2011–12 school calendar. He explained that the teachers threatened to not begin the school year if this measure was not implemented.

[63] When asked about the new school calendar for 2011–12, Mr. Vollant indicated that it was shared with the teachers in June 2011 in accordance with the usual rules.

3. Mr. Jean-Claude Vollant

[64] Mr. Vollant has been the Director General of the Conseil des Innus since 2012. Prior to this, he was the strategic finance director. He explains the financial difficulties the employer had been facing for several years and explains that it was a co‑manager who was responsible for managing the organization. The co‑manager took action to reduce the working hours of all employees, including the teachers.

[65]  He adds that, during this critical period, waves of layoffs took place and the regular work week for all employees dropped from 35 hours to 31 hours per week, without any changes in their responsibilities.

[66] With regard to the teachers, Mr. Vollant indicates that there was also a reduction in work hours for the fiscal year beginning April 1, 2011, and ending March 31, 2012. He adds that a standard employment contract was given to all the teachers and that it was their obligation to sign it.

[67] Mr. Vollant explains that he sustained a drop in salary himself following the budget cuts in 2011.

[68] On cross-examination, Mr. Vollant explained that the MOA of June 2010 was also the responsibility of the co‑manager who started in the position in 2007 and left in 2012.

VII. Arguments

A. The Union

[69] Counsel opens his argument by summarizing the three complaints in the present case filed under section 24(4) of the Code. These three complaints come in a context where the employer imposed changes in the teachers’ terms and conditions of employment by requiring them to sign a new employment contract if they wanted to keep their jobs.

[70] He submits to the Board the decision of the Supreme Court of Canada (SCC) in United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45, [2014] 2 S.C.R. 323 (Wal-Mart) and considers that it applies on all points to the present matters. Accordingly, he submits that the purpose of section 24(4) of the Code is to maintain a balance in the relationship of power between the parties from the moment an application for certification is filed until the first collective agreement is signed.

[71] Counsel submits that the burden of proof is on the employer which must demonstrate that the terms and conditions of employment existed before the certification application was filed, namely, before the freeze.

[72] With regard to file no. 29424-C, counsel submits that Ms. Simard’s testimony shows that an MOA achieving pay equity with the Quebec teachers’ salaries was implemented in 2010. He adds that pay equity meant an increase in the salaries of the Conseil des Innus’ teachers.

[73] Counsel adds that, based on the evidence, the Conseil des Innus, in contending with financial difficulties, imposed a remedial plan in March 2011. At the time, it changed the teachers’ salary conditions by reducing their regular work hours. Counsel refers the Board to the employment contracts filed into evidence to that effect.

[74] Counsel adds that the employer then introduced Aboriginal education days into the 2011–12 school calendar, but that it was not as successful as expected, because a school calendar of 180 teaching days was restored beginning in mid-February 2012.

[75] Counsel submits that several witnesses, including Ms. Rock and Mr. Vollant, indicated that the purpose of introducing Aboriginal education days was to compensate for the reduction in work hours imposed by the employer in April 2011 for the 2011–12 school calendar. He notes that the union’s application for certification was filed on November 21, 2011.

[76] Counsel submits that the employer restored the 180 teaching-day calendar on February 17, 2012, until the end of the school year, without the union’s consent. He points out that the teachers worked ten days rather than nine and that they were not paid accordingly. He estimates the financial loss at $210 per day per teacher and that about 50 teachers are affected. He is asking that these amounts be reimbursed to them, until the collective agreement is signed.

[77] With regard to file no. 29514-C concerning specialized teachers, counsel raises the fact that their annual salary originally provided for an $800 premium, before the MOA was signed on June 18, 2010, which achieved pay equity with the MES teachers.

[78]  Counsel acknowledges that the MOA does not mention a specialist premium. He argues that it took the teachers two years to notice that their premium had been withdrawn by the employer. He submits that the employer changed the salary conditions of these teachers, without the union’s consent. Counsel doubts that the change was made to correct an administrative error. He is requesting payment of this premium for the specialized teachers.

[79] With regard to file no. 29515-C, counsel submits that the teachers concerned by this complaint have not been paid for teaching more than 24 periods. He invites the Board to review Ms. O’Leary’s contract dated March 31, 2011, which provides for 24 teaching periods, whereas her contract dated March 2012 stipulates 26 teaching periods.

[80] Counsel argues that he does not question the fact that the Conseil des Innus experienced major financial difficulties. However, he criticizes the employer for having established new terms and conditions of employment without the union’s consent.

B. The Employer

[81] From the outset, counsel for the employer submits that the Board must review the present situation as that of a reasonable employer in the same circumstances. Counsel adds that, contrary to the employer’s status in Wal-Mart, the Conseil des Innus is a public corporation governed by the Indian Act, RSC 1985, c I-5, and whose reason for being is to administer the financial resources allocated to it by the federal authorities.

[82] Counsel submits that the Conseil des Innus is responsible for protecting the values of the community it represents and that its subsistence depends on the federal authorities. He states that the Conseil des Innus has no other financial resources and does not have taxation jurisdiction.

[83] Counsel argues that the evidence unequivocally shows that the Conseil des Innus’ financial status has deteriorated in recent years. He submits to the Board that a co‑manager was imposed on the employer beginning in 2007 to restore its financial health. According to counsel, it was a particular and unusual situation as the deficit was at least $20 million.

[84] He submits that the co‑manager had total control of the budget and imposed his instructions. Despite this critical situation, counsel points out that the employer agreed to ensure the teachers’ pay equity with the Quebec teachers and to implement the MOA as of June 18, 2010. He submits that the Conseil des Innus acted in good faith and wanted to satisfy its teachers who are allegedly the highest paid among all Conseil des Innus employees.

[85] He adds that in April 2011, the co‑manager imposed drastic measures and that no one was spared; 46 individuals lost their jobs. Counsel submits that, based on the evidence, all employees including the teachers sustained a reduction of work hours leading to a reduction in wages. As a result, all employees became subject to new salary conditions in March 2011; the imposition of these conditions was beyond the employer’s control.

[86] Counsel for the employer points out that the Aboriginal education days were proposed by the teachers themselves. The teachers wanted this measure to be implemented, failing which they wanted to return to a regular 35-hour work week. The purpose of this action was to compensate the loss of 2.5 hours of work that had been imposed for the 2011–12 school year. Counsel submits that during this period, the teachers worked 32.5 hours per week and were paid for those hours. On February 17, 2012, when the school calendar was restored to 180 teaching days, the teachers continued to be paid for 32.5 hours per week.

[87] In any event, the restoration of the 180-day school calendar was imposed by AANDC.

VIII. Analysis and Decision

[88] In the three present complaints, the union submits that the employer violated section 24(4) of the Code. This section imposes a business as before approach regarding the terms and conditions of employment after notification of an application for certification. In other words, business as before must be ensured for employees when an application for certification is filed with the Board. Section 24(4) states the following:

24 (4) Where an application by a trade union for certification as the bargaining agent for a unit is made in accordance with this section, no employer of employees in the unit shall, after notification that the application has been made, alter the rates of pay, any other term or condition of employment or any right or privilege of such employees until

(a) the application has been withdrawn by the trade union or dismissed by the Board, or

(b) thirty days have elapsed after the day on which the Board certifies the trade union as the bargaining agent for the unit.

[89] The Board has often clarified the nature of the prohibition imposed on the employer under this section and the employer’s burden, particularly in Bizeau, 2004 CIRB 261:

[51] In Bessette Transport Inc. (1981), 43 di 64 (CLRB no. 299), the Board's predecessor, the Canada Labour Relations Board, made the following statement concerning this provision (then section 124(4) of the Code):

Moreover, any action by the employer which alters the terms and conditions of employment would result in the destruction of the integrity of free collective bargaining because the employer could, by calculated actions, “load” the dice in its favour before sitting down at the bargaining table, thus forcing the trade union to re-establish its position, and thereby placing it in a clearly disadvantageous and unfavourable position, which would upset the equilibrium between the parties.

A second factor seems to be very important in the Board's examination of a complaint under subsection 124(4). The ratione materiae of a violation of this provision is specifically related to the basic and material requirement of an alteration in the terms and conditions, salaries, rights and privileges, without any qualification. In this case, it is not a question of assessing or considering the employer's reasons, in contrast with a complaint of unfair labour practice under Section 184 [now section 94], where anti-union animus may have a considerable impact on the appreciation of the facts.

It must therefore be decided whether or not there have been changes or alterations in the terms and conditions of employment, salaries and rights and privileges of the affected employees, and nothing more.

(page 76; emphasis added)

[52] The provision does not prevent an employer from making changes to its company, as long as they are consistent with the “business as before” test. The Ontario Labour Relations Board described the details of this test in Spar Aerospace Products Ltd., [1979] 1 Can LRBR 61:

It should be emphasized that the “business as before” approach dictates that the totality of the employment relationship be the subject of the freeze. In interpreting section 70 [the freeze provision in the Ontario Labour Relations Act, S.O. 1995, c. 1, Sch. A], the Board does not place undue influence upon the term “rates of wages” but recognizes that this term must be read in the context of the other words in that section. The words “any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees” must also be given meaning and, in the Board's view, Section 70 read as a whole manifests a legislative intent to maintain the prior pattern of the employment relationship in its entirety.

...

The "business as before" approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be regarded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. ...

(pages 68–69)

[90] The Board also notes that the SCC specified the requirements of section 59 of Quebec’s Labour Code, CQLR c. C-27, a provision similar to section 24(4) of the Code, in Wal-Mart. The SCC indicated that the purpose of freezing the terms and conditions of employment was to facilitate certification and encourage good faith bargaining between the parties. It also detailed the applicable burden:

[39] As a result, s. 59 requires that the union representing the employees prove that a unilateral change has been made. To discharge this burden, the union must show: (1) that a condition of employment existed on the day the petition for certification was filed or a previous collective agreement expired; (2) that the condition was changed without its consent; and (3) that the change was made between the start of the prohibition period and either the first day the right to strike or to lock out was exercised or the day an arbitration award was handed down, as the case may be. ...

[91] Other than the variations in the wording of section 59 of the Quebec Labour Code and section 24(4) of the Code, which establish some differences, the Board is of the view that the SCC’s decision does not substantially change the case law applicable in this case.

[92] The objective of section 24(4) of the Code is to prevent disruptions in employee-employer relations should the application for certification be denied. Consequently, it is important to maintain the situation in the state it was prior to the filing of the application, unless the Board approves the changes to the terms and conditions of employment or these changes are consistent with a collective agreement. We note that a request for authorization was not filed with the Board by the employer concerning the changes alleged by the union and that the parties had not signed a collective agreement.

[93] In light of the jurisprudence, the Board must first determine whether changes were made to the terms and conditions of employment in these files. If it finds changes were made, it must then determine whether these changes fall under the continuation of business based on what was in effect before the certification application was filed.

[94] The Board will address the complaints one by one based on these case law criteria.

1. Complaint in File No. 29424-C

[95] The union alleges that the employer violated sections 24(4) and 94(3) of the Code when it changed the teachers’ terms and conditions of employment on or about February 17, 2012. The facts show that the employer cancelled the floating holidays (Aboriginal education days) granted every second Friday, which led to salary cuts.

[96] The Board notes from the evidence that the employer underwent significant restructuring in March 2011 owing to financial difficulties; as part of the reorganization, a reduction in work hours was imposed leading to a reduction in the teachers’ salaries. The Board also notes that the employer had agreed to introduce, through Aboriginal education days, a reduced school calendar, beginning in September 2011. This new calendar came in response to a suggestion by the teachers to mitigate the effects of the reorganization; however, it needed to be approved by AANDC and the MES.

[97] The union’s application for certification was filed on November 21, 2011, after the reduction of regular work hours imposed by the employer in March 2011 and after the introduction of the reduced school calendar. The complaint in file no. 29424‑C must be considered in this context.

[98] On February 16, 2012, the union sent a demand letter to the Conseil des Innus. This demand concerned the cancellation of the Aboriginal education days introduced for the 2011–12 school year. The letter reads as follows:

Dear Madam,

Dear Sir,

We wish to inform you that we have been instructed by our client, the Syndicat des enseignantes et enseignants de Pessamit, to send this correspondence to you.

According to our information, you are preparing to require union members to report to work on Fridays, beginning tomorrow.

As you certainly know, our client filed an application for certification on November 21, 2011. On that date, the terms and conditions of employment in effect for the members of the union did not include work or being present at the schools on Fridays.

For your convenience, we have reproduced below the provisions of the Canada Labour Code that prohibit an employer from acting in a manner such as you are preparing to do:

…

Pursuant to the preceding, you must not change the terms and conditions of employment of the union members without having first obtained the Board’s authorization.

Consequently, this letter constitutes a formal demand that you not change the terms and conditions of employment of the union members by imposing work or presence at the schools on Fridays beginning on February 17, 2012.

Be advised that should you fail to comply with the legislative requirements, we have been instructed to undertake any legal proceeding deemed appropriate in the circumstances, not excluding a request for an interim order.

Without further notice or delay.

PLEASE TAKE ACTION ACCORDINGLY.

(translation)

[99] The employer acknowledges that it changed the terms and conditions of employment of its teachers in a period during which an application for certification was pending before the Board. It is important to note that it should have sought the Board’s consent as set out in the Code, which it did not do.

[100] Therefore, the Board must determine whether the employer provided sufficient evidence to show that these unilateral changes met the "business as before" test. The Board must also determine whether the employer’s actions were part of its normal course of doing business. If it does not make this finding, the Board will have to order that the terms and conditions of employment be restored to those in effect at the time the certification application was filed.

[101] The evidence shows that the 180-day school calendar and the conditions imposed in March 2011 by the employer were restored following the receipt of a letter from AANDC dated February 6, 2012. This letter notified the employer that the measure introducing Aboriginal education days was not consistent with the “educational service delivery standards” and violated the contract requirements of the funding agreement. More specifically, the letter stated:

Given the preceding, considering that the “educational service delivery standards” were not followed which violates the contract requirements of your 2011–12 funding agreement, AANDC has no other choice than to require the immediate restoration of regular teaching days for students at the elementary and secondary schools. Should we fail to receive, no later than February 15, 2012, confirmation from the Conseil of compliance with this condition, AANDC will begin withholding funds from your funding agreement. These holdbacks shall be fixed at 15% of your core funding.

(translation)

[102] This letter from AANDC was preceded by another letter sent on November 9, 2011, informing the Conseil des Innus that MES approval was required before validating the introduction of 13 Aboriginal education days, thus reducing the number of teaching days. It imposed the condition of approval in these terms:

Subject: Condition for approval of new school calendar

Dear Chief and Vice‑Chiefs:

Aboriginal Affairs and Northern Development Canada (AANDC) hereby acknowledges receipt of your correspondence of November 1, 2011, informing us that a new school calendar has been established that includes 13 Aboriginal education days.

...

Nonetheless, in order to demonstrate that the “educational service delivery standards comply with the applicable legislation” (clause 4.2.2 of your funding agreement), the Conseil must take steps with the Ministère de l’Éducation, des Loisirs et des Sports (MELS) to obtain the approval necessary for its specific educational project. This approval is required given that the content of the 13 “Aboriginal education days” is not part of the subject matter list in the MELS educational curriculum.

The Conseil will have to provide a management action plan to AANDC showing quarterly progress on steps taken with the appropriate provincial authorities. The educational project must obtain official approval of the MELS by June 30, 2012. Should it fail to obtain this confirmation, the Ministère will be obligated to require that the regular educational curriculum be restored.

(translation)

[103] Thus, the employer restored the regular school calendar on February 15, 2012, in this context, in other words, under penalty of funding cuts if it failed to comply with the obligation imposed by the Ministère. In other words, the employer did not have any other choice than to restore the regular school calendar of 180 teaching days.

[104] In the circumstances, the Board is of the view that the employer followed the business as before approach by complying with the instructions of the MES and by restoring the conditions it had imposed in March 2011, before the application for certification.

[105] Consequently, the complaint in file no. 29424-C is dismissed.

2. Complaint in File No. 29514-C

[106] The union submits that the employer cut the specialist premium of certain teachers beginning in April 2012, after it filed its application for certification, thus violating section 24(4) of the Code.

[107] The evidence did in fact show that some teachers had received this premium when they were hired, prior to June 18, 2010. Ms. Guay in particular came to testify to explain that a letter from the Nussim primary school dated September 16, 2009, had been sent to her, indicating that a specialist premium of $800 would be added to her base salary.

[108] The employer submits that this premium was cancelled in June 2010 after the MOA was signed, aligning the teachers’ salaries with the salaries paid in the elementary and secondary school systems in Quebec overall. It specifies, however, that it was only in late March 2012 that it discovered its error and rectified the situation after the annual budget review for that fiscal year. The employer explains that it did not rectify the situation retroactively. Ms. Simard came to testify to the fact that the Quebec teachers do not receive a specialist premium.

[109] The Board also notes that the MOA makes no mention of specialist premiums:

1. PURPOSE OF THE MEMORANDUM

The present memorandum establishes the terms and conditions of employment and pay for the 2010–11 school year. It does not recognize any other rights and privileges that are not mentioned therein.

(translation)

[110] In late March 2011, before the union filed its application for certification, the employer had its teachers sign new employment contracts; these contracts provided for a wage freeze and a reduction in regular work hours. The signing of these contracts was a consequence of a new employment policy which came into force in April 2011. The employer also agreed to adjust the teachers’ pay beginning on April 1, 2012, to make it consistent with the MES pay scales in effect. There was no mention of a specialist premium.

[111] In fact, was the premium paid to the teachers in error after the employer established pay equity? What is certain is that, beginning on June 18, 2010, the teachers’ pay scales became the same as the MES scales. The evidence also shows that MES did not provide for a specialist premium for teachers.

[112] The union doubts that the employer’s decision to cancel the specialist premium stems from an administrative error. Given the evidence, the Board is of the view that the employer simply corrected an error it discovered during the review of the fiscal year ending March 31, 2012.

[113] In these circumstances, the Board finds that the employer acted in the normal course of its business, and consequently, met the "business as before" test required under the Code.

[114] Consequently, complaint 29514-C is dismissed.

3. Complaint in File No. 29515-C

[115] This complaint also concerns changes made by the employer on April 1, 2012, after the application for certification was filed. It concerns teaching periods that some secondary school teachers allegedly worked beyond the 24 teaching periods normally required. These changes allegedly became effective from April 1, 2012, to March 31, 2013.

[116] The Board considers it appropriate to first review the chronology of events:

• On April 1, 2011, based on its Employment Policy, the employer imposed new employment contracts on the teachers. The contracts provided for a 30-hour work week, or 24 teaching periods over nine days of class time.

• On November 21, 2011, the union filed its application for certification to represent the teachers of the Nussim primary school and Uashkaikan secondary school.

• In December 2011, a new employment contract was signed between certain teachers and the Conseil des Innus, at the acting director’s urging. This contract acknowledges that certain teachers work more than the 24 periods initially provided and formally considers these additional hours to be regular work hours rather than overtime hours.

• In March 2012, during the annual budget review for the fiscal year underway, the employer discovered that the new contracts did not comply with the authorization procedures in place. It decided to restore, for April 2012, the contracts that were valid before the certification application was filed, namely, those of April 2011.

[117] The employer submits that all decisions concerning contract changes were prohibited beginning on April 1, 2011, and should have been approved in advance through a resolution of the Conseil des Innus. It also argues that the restoration of the earlier contracts during the annual budget review relies on the discovery of an administrative error. Moreover, the employer considers that the contract changes also should have been approved by the Board to be valid.

[118] The Board obviously cannot have approved the changes made in December 2011 or those made in April 2012, because it was not seized of an application to do so. It appears that the employer also did not consult with the union before implementing these changes.

[119] To justify changing terms and conditions of employment, the employer must normally demonstrate that it acted in accordance with the management approach established before the application was filed. The jurisprudence cited specifies that such a condition cannot be regarded as unduly onerous in light of the fact that management is in the best position to know whether it is in fact carrying out business as before.

[120] The Board considers, however, that the present complaint raises a serious issue where it posits that the employer changed a condition of employment after the union filed its certification application and without any validation process.

[121] The Board does not have any evidence enabling it to determine that the contractual change of December 2011 was consistent with the company’s business as before. The employer itself argued that it was flawed, and for that reason, it had to restore the teachers’ employment contract which was consistent with its Employment Policy.

[122] Therefore, the Board is of the view that it cannot find that the employer violated section 24(4) of the Code by restoring the terms and conditions of employment that were in effect before the application for certification was filed.

[123] Consequently, the complaint in file no. 29515-C is dismissed.

IX. Conclusion

[124] This is a unanimous decision of the Board, dismissing the three complaints of unfair labour practice at issue.

Translation

	____________________ Louise Fecteau Vice-Chairperson
____________________ Richard Brabander Member		____________________ Norman Rivard Member