Reasons for decision
Communications, Energy and Paperworkers Union of Canada,
complainant,
and
Expertech Network Installation Inc.,
respondent.
Board File: 25396-C
Neutral Citation: 2009 CIRB 481
November 26, 2009
The Canada Industrial Relations Board (the Board) was composed of Mr. Graham J. Clarke, Ms. Judith F. MacPherson, Q.C., and Mr. William G. McMurray, Vice-Chairpersons.
Section 16.1 of the Canada Labour Code (Part I - Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the submissions and accompanying material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this complaint without an oral hearing.
Counsel of Record
Mr. Micheil M. Russell, for the Communications, Energy and Paperworkers Union of Canada;
Mr. David M. Chondon, for Expertech Network Installation Inc.
These reasons for decision were written by Mr. Graham J. Clarke, Vice-Chairperson.
I - Nature of the Complaint
[1] This matter concerns an unfair labour practice complaint that the Communications, Energy and Paperworkers Union of Canada (CEP) originally filed with the Board on November 9, 2004. The Board initially dismissed the CEP’s complaint on the basis that it could be dealt with by an arbitrator. A reconsideration panel of the Board later overturned the Board’s decision to defer to arbitration and instead placed the CEP’s complaint in abeyance while the parties pursued arbitration.
[2] The parties obtained two arbitral decisions with regard to their rights under two separate collective agreements.
[3] Following the release of the arbitration decisions, the CEP asked the Board to deal with the merits of its original complaint.
[4] Due to the unavailability of the original panel, the Board appointed a new panel in October, 2009 to deal with the CEP’s complaint on an expedited basis.
[5] The Board, after thoroughly reviewing the parties’ submissions and the arbitral decisions, has decided to dismiss the CEP’s complaint for the reasons set out herein.
II - Facts
[6] The CEP is a national trade union representing approximately 150,000 employees employed in various sectors of the economy across Canada, including telecommunications. Bell Canada established Expertech Network Installation Inc. (Expertech) in 1996 to take over its divisions involving central office equipment installations and outside plant construction. Bell retained a significant ownership stake in Expertech.
[7] The CEP has two separate collective agreements with Expertech: one for a “craft unit” and the second one for a “clerical unit”.
[8] The issue at the heart of the CEP’s 2004 complaint concerned the eligibility of members of each bargaining unit for early retirement benefits.
[9] The Board initially considered the CEP’s complaint in Expertech Network Installation Inc., 2005 CIRB 337 (Expertech 337). The Board described the CEP’s position at paragraph 2:
[2] The CEP is alleging that Expertech failed to honour its commitments regarding the plan, made in the last round of bargaining, and interfered with the CEP’s representation of its membership, which resulted in a perception that the union’s ability to properly represent its members was diminished.
(page 3)
[10] The main issue concerned article 25 in the two separate collective agreements covering the craft unit and the clerical unit. The wording of article 25 differs in each agreement.
[11] The CEP argued that the April 15, 2003 Terms of Settlement, which effectively finalized both collective agreements, entitled members of both bargaining units to early retirement benefits. Expertech disagreed with this interpretation on the merits, but argued preliminarily that the determination of early retirement entitlements was more properly a matter for an arbitrator to decide by interpreting the parties’ collective agreements. As part of that exercise, the arbitrator would determine the legal status of the Terms of Settlement.
[12] In Expertech 337, supra, the Board exercised its discretion and refused to determine the complaint in accordance with section 98(3) of the Code:
98.(3) The Board may refuse to determine any complaint made pursuant to section 97 in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board.
[13] The Board concluded that an arbitrator was better situated to deal with a dispute involving collective agreement interpretation:
[40] In order to determine whether the CEP’s members are entitled to the early retirement plan, one must interpret the provisions of the two collective agreements. This determination lies at the heart of the present dispute. The Board does not consider it appropriate to engage in such an exercise given the nature of the issue raised, the circumstances surrounding this complaint and the fact that grievances have been filed that deal with this issue. Contrary to Canadian National Railway Company, supra, there is no evidence of the employer repeatedly breaching the collective agreement in the present matter or ignoring the arbitrator’s award, since no such award has yet been rendered.
(page 14)
[14] On October 14, 2005, the CEP filed an application for reconsideration of Expertech 337, supra. A reconsideration panel of the Board accepted the CEP’s request (Expertech Network Installation Inc., 2006 CIRB LD 1438) (LD 1438), set aside the original decision, and deferred deciding the merits of the complaint while the parties pursued arbitration:
In the present reconsideration application, CEP requests that the Board reconsiders (sic) the original panel decision pursuant to section 18 of the Code and section 44 of the Canada Industrial Relations Board Regulations, 2001, on the grounds that there are facts that were not brought to the attention of the Board; that the original panel committed an error of law or policy that cast serious doubt on the interpretation of the Code; and that it contravened principles of natural justice.
Due to the volume of its present caseload, the Board has been delayed in rendering a written decision in this matter. However, because this reconsideration application has been before the Board for some time and because the Board was advised that a related arbitration hearing has been scheduled to be heard this month, it has decided to inform the parties of the disposition of the above-captioned reconsideration application by way of this ‘bottom-line’ decision.
Following a review of the submissions of the parties and documents on file, the Board has decided i) to allow the reconsideration application; ii) to set aside the original panel’s decision; and pursuant to section 16(l.1) of the Code, iii) to defer deciding the original complaints as it considers they could be resolved by arbitration or an alternative method of resolution. Accordingly, the Board hereby reserves jurisdiction over the original complaint.
(page 2)
[15] The Board essentially took a “wait-and-see” approach as authorized by section 16 (l.1) of the Code:
16. The Board has, in relation to any proceeding before it, power
...
(l.1) to defer deciding any matter, where the Board considers that the matter could be resolved by arbitration or an alternate method of resolution;
[16] Expertech and the CEP retained the services of arbitrator G.T. Surdykowski (Arbitrator) to deal with their collective agreement dispute. The Arbitrator first issued a preliminary award on October 30, 2006 which considered the status of paragraph 4a in the April 15, 2003 Terms of Settlement:
[17] Paragraph 4a of the Terms of Settlement stated as follows:
4. Pension Plan
a. The Company agrees that any changes to the Pension Plan that would apply to Bell Canada employees represented by the CEP and that would occur during the life of this collective agreement, shall be reviewed by Expertech with representatives of the CEP and apply to eligible employees of Expertech represented by the CEP, subject to ratification by Expertech employees.
[18] The Arbitrator had to determine whether paragraph 4a of the Terms of Settlement formed part of the two collective agreements. The Arbitrator described the issue at paragraph 28 of his preliminary award:
28. The ‘essential character’ question doesn’t arise in this case. The Company does not dispute that the issue between the parties is arbitrable. The Union does not seek to rely on paragraph 4a as the basis for an additional or separate claim. It seeks to rely on it as part of the collective agreement basis for its claim that the Company has breached the two collective agreements. The preliminary question is: does paragraph 4a does (sic) in fact constitute part of the collective agreements, or is its only utility as an aid to interpretation, which the Company concedes?
[19] The Arbitrator concluded that paragraph 4a of the Terms of Settlement did not form part of the parties’ two collective agreements.
38. I therefore declare that paragraph 4a of the two April 15, 2003 Terms of Settlement attachments to the two April 15, 2003 Memoranda of Agreement does not form part of either the ‘Craft and Services Employees’ collective agreement or the ‘Clerical and Associated Employees’ collective agreement.
[20] In his final award dated December 6, 2006, the Arbitrator described the central issue before him:
3. The issue raised by the grievances concerns the entitlement of Expertech employees covered by the Craft and Clerical agreements to a Voluntary Early Retirement (‘VER’) package that the Union collectively bargained with Bell Canada (‘Bell’) after the Expertech negotiations and collective agreements were completed.
[21] The Arbitrator accepted the CEP’s position, but only with regard to the craft unit’s collective agreement:
40. The Craft agreement grievance is allowed. In that respect:
1. I DECLARE THAT Expertech has violated the Craft agreement between the parties effective May 9, 2003 by refusing to extend the pension plan component(s) of the Bell Canada 2004 VER to its employees covered by that collective agreement.
[22] Conversely, the Arbitrator dismissed the grievance with regard to the clerical unit’s collective agreement. The differing results arose because of the different drafting of article 25 in each collective agreement.
[23] On December 18, 2006, counsel for the CEP wrote to the Board and enclosed copies of the Arbitrator’s decisions. The CEP asked the Board to proceed with its original 2004 complaint:
In light of this development, the CEP is writing to the Board to request that the Board proceed with the complaint at this time. The CEP requests that a hearing be scheduled in connection with this matter. It is the submission of the CEP that this matter has not been resolved in (sic) entirety by arbitration, and accordingly the CEP respectfully requests that the complaint be permitted to proceed.
[24] Counsel for Expertech argued, in its letter dated to the Board December 22, 2006, that the differences between the parties had been fully addressed at arbitration:
... The matters were arbitrable and the arbitration proceedings fully examined the bargaining history and relevant collective agreement provisions. It is submitted that our client should not have to participate in multiple and costly proceedings simply because the Applicant was not able to obtain all the relief it sought through the arbitration process. Accordingly, we request that the Board dismiss the above-noted Complaint.
[25] On March 28, 2007 the Board received a letter from counsel for the CEP advising that all issues related to the craft unit had been resolved. However, the CEP still wished to proceed with the complaint involving its clerical unit.
[26] On May 4, 2007, a different panel of the Board advised the parties of the following:
The Board wishes to advise the parties, at this stage, that it is of the view that the issue between the parties in regard to whether all matters have been addressed, and more specifically, whether Expertech is required to offer the VER/STP to a larger number of clerical and associated bargaining unit employees, can be decided by the Board without the necessity of an oral hearing. Consequently, the Board will not be scheduling a hearing and will issue its decision in due course.
[27] Unfortunately, that particular panel was not able to issue its promised decision.
[28] In October 2009, in order to deal with the CEP’s 2004 complaint, the Board suggested that a different panel decide the matter. The parties did not object to this way of proceeding.
III - Analysis and Decision
[29] The Board rejected the CEP’s complaint in Expertech 337, supra. LD 1438, supra, revived the CEP’s complaint while the parties pursued arbitration. Those decisions, as well as those of the Arbitrator, have allowed the current panel to obtain a full appreciation for the matters in dispute between the parties.
[30] In Expertech 337, supra, a majority of the Board was satisfied that the matters could be deferred to arbitration and the complaints dismissed. That decision presupposed that arbitration could deal with the issues.
[31] The bottom line decision in LD 1438, supra, seemingly preferred to take a more cautious approach when it exercised its authority under section 16(l.1) of the Code to defer deciding the CEP’s complaint.
[32] The use of section 16 (l.1) reserves the Board’s jurisdiction and allows it to consider the complaint at a later date, if necessary.
[33] The Board has concluded that the matters between the CEP and Expertech were disputes which involved the interpretation of the parties’ collective agreements.
[34] The Arbitrator examined whether or not paragraph 4a of the Terms of Settlement formed part of the collective agreements. He ruled against inclusion. However, he was prepared to use paragraph 4a of the Terms of Settlement as an aid in interpretation of the collective agreements, if necessary.
[35] Even when considering paragraph 4a of the Terms of Settlement, the Arbitrator still found that the proper interpretation of the craft unit’s collective agreement supported the CEP’s position while a proper interpretation of the clerical unit’s collective agreement did not.
[36] In these circumstances, with the benefit of hindsight, we would agree with the result in Expertech 337, supra, that it was appropriate for the Board to dismiss this complaint in favour of arbitration. The Board still retains the discretion under section 98(3) to dismiss the CEP’s complaint:
98.(3) The Board may refuse to determine any complaint made pursuant to section 97 in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board.
[37] The fact that the matters have already gone through the arbitration process does not remove this fundamental discretion which seeks in part to avoid a multiplicity of proceedings for the same issues.
[38] In our view, the essence of this dispute was differing opinions about the bargain the parties had struck at the negotiating table. Both the CEP and Expertech are sophisticated parties with extensive negotiating experience. A large body of arbitral jurisprudence exists about the admissibility of evidence from bargaining to help interpret the collective agreement. This is not an area in which the Board gets involved.
[39] Given the Arbitrator’s detailed examination of the issues, the Board dismisses the CEP’s complaint.
[40] This is a unanimous decision of the Board.