Reasons for decision

Public Service Alliance of Canada,

complainant,

and

Listuguj Mi’gmaq First Nation Council,

respondent.

The Canada Industrial Relations Board (the Board) was composed of Mr. William G. McMurray, Vice-Chairperson, sitting alone pursuant to section 14(3) of the Canada Labour Code (Part I–Industrial Relations) (the Code). Case management teleconferences (CMTs) were held on July 22, 2011 and February 14, 2013. Hearings were held on October 12–14, 2011, March 26–28, 2012 and November 14–16, 2012 in Moncton and on July 16, 2013, in Montréal.

Appearances

Messrs. Andrew J. Raven and Michael Fisher and Ms. Mary Mackinnon, for the Public Service Alliance of Canada;

Mr. Jamie C. Eddy, for Listuguj Mi’gmaq First Nation Council.

I. Nature of the Complaint

[1] The Board is seized with an unfair labour practice complaint filed pursuant to section 97(1) of the Code by the Public Service Alliance of Canada (PSAC, the complainant or the union).

[2] The complaint was filed on February 28, 2011, against the Listuguj Mi’gmaq First Nation Council (the Council, the respondent or the employer), the employer of a group of school teachers at its local school.

[3] The Board certified the union as the exclusive bargaining agent for a bargaining unit composed primarily of school teachers on November 28, 2007, by order no. 9375-U. The union was seeking its first collective bargaining agreement. According to the union, a first collective agreement was concluded, although subject to ratification, by both parties, on or about December 2, 2010.

[4] The union alleged that the employer had violated its duty to bargain collectively in good faith, as set out at section 50(a) of the Code. More specifically, the union alleged that the employer had failed or refused to indicate whether it had or had not ratified the first proposed collective agreement.

[5] By way of remedy for its complaint, the union asked the Board, among other things, for an order directing the employer to comply with its obligation under section 50(a) of the Code to bargain collectively in good faith.

[6] As will be explained in greater detail below, the employer eventually decided not to ratify the proposed collective agreement and it communicated its decision to the union prior to the beginning of the oral hearing into the complaint before this Board. That said, it was not until March 27, 2012, in the course of the viva voce evidence of an employer witness, that the employer disclosed the reasons underlying its decision not to ratify the proposed first collective agreement. That was the first time the employer communicated its reasons to the union for not ratifying.

[7] For the reasons set out below, the Board has decided to grant the complaint. The union, through the extensive evidence heard at the oral hearing and the comprehensive final arguments, has satisfied the Board that the employer has breached its obligation to bargain collectively in good faith and has thereby engaged in an unfair labour practice, contrary to section 50 of the Code. More specifically, the employer violated its duty by failing to effectively and timely communicate to the union the reasons underlying its decision not to ratify the proposed collective agreement.

 

II. Relevant Law

A. Duty to Bargain Collectively in Good Faith

[8] The duty to bargain collectively in good faith is set out at section 50(a) of the Code:

50. Where notice to bargain collectively has been given under this Part,

(a) the bargaining agent and the employer, without delay, but in any case within twenty days after the notice was given unless the parties otherwise agree, shall

(i) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith, and

(ii) make every reasonable effort to enter into a collective agreement.

[9] In a 1996 decision, the Supreme Court of Canada told us the following about section 50(a) of the Code:

41. … In order for collective bargaining to be a fair and effective process it is essential that both the employer and the union negotiate within the framework of the rules established by the relevant statutory labour code. In the context of the duty to bargain in good faith a commitment is required from each side to honestly strive to find a middle ground between their opposing interests. Both parties must approach the bargaining table with good intentions.

42. Section 50(a) of the Canada Labour Code has two facets. Not only must the parties bargain in good faith, but they must also make every reasonable effort to enter into a collective agreement. Both components are equally important, and a party will be found in breach of the section if it does not comply with both of them. There may well be exceptions but as a general rule the duty to enter into bargaining in good faith must be measured on a subjective standard, while the making of a reasonable effort to bargain should be measured by an objective standard which can be ascertained by a board looking to comparable standards and practices within the particular industry. It is this latter part of the duty which prevents a party from hiding behind an assertion that it is sincerely trying to reach an agreement when, viewed objectively, it can be seen that its proposals are so far from the accepted norms of the industry that they must be unreasonable.

(see Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369)

[10] The duty therefore has two facets. Parties must bargain in good faith (section 50(a)(i)) and must also make every reasonable effort to enter into a collective agreement (section 50(a)(ii)). Both facets of the duty are equally important. A party may be found in breach of section 50 if it does not comply with both of them.

[11] As a general rule, the obligation to bargain in good faith must be measured on a subjective standard.

[12] The obligation to make every reasonable effort should be measured on an objective standard. The objective standard allows the Board to look at comparable standards and practices within a particular industry.

[13] The jurisprudence of this Board and its predecessor establishes that the obligation to make every reasonable effort includes an obligation on the parties to communicate effectively with each other. Effective communication includes an element that communication is not unduly delayed: NAV CANADA, 1999 CIRB 13, at paragraph 171.

[14] To meet their obligations under section 50(a) of the Code, parties must communicate with each other to an extent that informed and rational discussions of the issues may occur: Sandy Bay Ojibway First Nation, 2009 CIRB 440, at paragraph 29. There must be a common willingness among the parties to discuss their respective positions freely and fully and, when these are opposed, to justify them on reason.

[15] The Board must ensure, therefore, that one party does not act in a manner that prevents or unduly delays full, informed and rational discussions of the issues in dispute in bargaining: CKLW Radio Broadcasting Limited (1977), 23 di 51; and 77 CLLC 16,110 (CLRB no. 101), pages 58–59.

[16] It is also useful to underline what section 50(a) does not encompass. The jurisprudence of this Board and the previous Board make it clear that neither facet of section 50(a) is a substitute for the core value of free collective bargaining enshrined in the Code. The duty to bargain is not meant to interfere with collective bargaining. The Code is premised on the primacy of free collective bargaining; accordingly, the obligations imposed on the parties by section 50(a) are not intended to interfere with the balance of power at the bargaining table.

[17] If the parties attain their objectives through collective bargaining, they do so based on their bargaining power rather than through the assistance or intervention of this Board: Intek Communications Inc., 2013 CIRB 683, at paragraph 330.

[18] Free collective bargaining does not involve an obligation to reach an agreement or to conclude a collective agreement: Tandy Electronics Ltd. (Radio Shack) v. United Steelworkers of America et al. (1980), 80 CLLC 14,017 (Ont. H.C.J.).

[19] The purpose of the Board’s supervisory power over collective bargaining under section 50 of the Code is to allow the core value of collective bargaining to function as intended; it is not intended to supplant or to replace it.

B. Remedy Powers for a Breach of the Duty

[20] Where either party is found to have breached either facet of the obligations imposed at section 50, the Board has a broad and discretionary power to remedy the underlying unfair labour practice. The remedy powers are set out at sections 99(2) and 99(1)(b.1).

[21] This Board and the previous Board benefit from a general power to order the offending party to do or to refrain from doing anything that is equitable to remedy the breach or to counteract any consequence of the breach. Section 99(2) of the Code provides:

99.(2) For the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any contravention of or failure to comply with any provision to which subsection (1) applies and in addition to or in lieu of any other order that the Board is authorized to make under that subsection, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of the contravention or failure to comply that is adverse to the fulfilment of those objectives.

[22] In 1999, Parliament amended the Code to include, or to clarify, a remedy that is specific to a breach of section 50(a) of the Code:

99.(1)(b.1) in respect of a contravention of the obligation to bargain collectively in good faith mentioned in paragraph 50(a), by order, require that an employer or a trade union include in or withdraw from a bargaining position specific terms or direct a binding method of resolving those terms, if the Board considers that this order is necessary to remedy the contravention or counteract its effects.

The specific remedy enables the Board to order the offending party to include in or to withdraw from a bargaining proposal, specific terms. The Board may direct a binding method of resolving those terms, where necessary to remedy the breach or to counteract its effects.

III. Evidence

[23] The union called two witnesses: the regional PSAC representative and the PSAC Local President. The Local Union President is also a school teacher at the Alaqsite’w Gitpu School (AGS) and, as such, a member of the certified bargaining unit. Both witnesses were part of the negotiating team and their evidence focused on the collective bargaining process which began in 2009 and culminated on December 2, 2010, in a tentative collective agreement. As previously indicated, that tentative agreement was subject to ratification by the union as well as by the Band Council, the employer.

[24] The PSAC Local President was also called to give evidence in reply on the recent history of Band preference in hiring, given the employer’s disclosure in March 2012, in the course of the oral hearing before the Board, of its wish to expand article 5 of the tentative collective agreement regarding preference for Band members in employment at the AGS.

[25] The employer called two witnesses: the Band’s Director of Finance and the Band Administrator.

[26] Of note, at the time the union filed its unfair labour practice complaint at the Board in February 2011, the employer had not yet held the Council meeting needed to decide whether to ratify the tentative collective agreement. On March 17, 2011, following a Council meeting, the employer advised the union of its decision not to ratify. The employer did not, however, choose to communicate the reasons for its decision.

[27] Of further note, when the oral hearing into the union’s complaint began at this Board in October 2011, the employer had not communicated the reasons for its decision not to ratify the tentative agreement. That evidence was communicated to the union and to the Board on March 27, 2012, in the course of the oral hearing, through the direct evidence of the Band’s Director of Finance.

[28] Both of the employer’s witnesses said, in direct evidence, that it was the desire of the employer’s negotiating team and of the Band Council to conclude a first collective agreement. Moreover, both of the employer’s witnesses testified, as part of their direct evidence, that the employer’s decision not to ratify the tentative collective agreement was not intended to bring the collective bargaining process to an end. The employer made it plain, at all times, of its desire to return to the bargaining table to continue to negotiate. Moreover, and significantly, both of the employer’s witnesses said, in direct evidence, that the employer still considered itself bound by all but a few of the articles of the tentative collective agreement once negotiations resumed.

[29] The Director of Finance indicated that the employer refused to ratify the tentative collective agreement because of its concerns over four specific articles contained therein.

[30] The Director of Finance said that a Council meeting was held in January 2011, that it was held to review the tentative collective agreement and that he, the Director of Finance, attended that meeting. Moreover, he said in his direct evidence that he brought his concerns over the wording of four specific articles to the attention of the Council at that meeting. It was those four specific concerns that subsequently caused the Council, in a Council meeting in March 2011, to decide not to ratify the tentative agreement.

[31] The four areas of concern to the employer, based on the evidence given by the Director of Finance to the Board on March 27, 2012, were: article 12.03 related to vacation pay, Appendix A related to the meaning of a teacher’s certification within the wage grid, article 29 related to performance standards for teachers, and article 5 related to Band preference in employment at the AGS.

[32] The employer categorized its concerns over article 12.03 and Appendix A as “not substantial.” In other words, the employer was of the view that only a few wording changes or clarifications were required to reflect the presumed common intention of both parties. The employer characterized its concerns over performance standards and Band preference as “more substantial.” In other words, the employer’s witness implicitly recognized that the Council was seeking changes, in March 2011, to the tentative collective agreement on two areas that the Council may not have communicated to its negotiating team when collective bargaining began in 2009.

[33] The negotiating teams had signed off on article 5 of the tentative collective agreement which provided a preference for qualified Band members in employment at the AGS. The Council, we were advised, was now seeking to expand that preference and to do so in a significant manner. The Council apparently wanted the right to terminate, immediately, the employment of any teacher at the AGS who was not a Band member once a qualified teacher (a Band member), was available. The Director of Finance said that the Council wanted to be able to place Band members, immediately upon their graduation from university, into the AGS as teachers. He said that the Council’s goal was to have 100% of the teachers at the AGS from the community. Moreover, he emphasized that the Council was “not prepared to wait for attrition” to achieve that goal.

[34] It is interesting to contrast the evidence given by the Director of Finance on March 27, 2012, with the employer’s opening statement delivered on October 12, 2011. The employer’s opening statement was lengthy, cogent and comprehensive. It addressed, among other things, the concerns that the Council had with the specific articles of the tentative collective agreement. There were, however, only three specific articles identified in the opening statement, not four.

[35] The employer’s opening statement on October 12, 2011, indicates that a Council meeting was held in January 2011 to review the tentative agreement, that the Council met with the members of its negotiating team during that meeting to discuss the tentative agreement and that, based on those discussions, the Council identified concerns over three articles: vacation pay, performance management and the certification of teachers for the purpose of the wage grid. The employer’s opening statement said nothing about a concern over Band preference. The evidence given by the Director of Finance on March 27, 2012, was essentially consistent with the employer’s opening statement, but for the addition of a new and fourth area of concern: Band preference, which is article 5 of the tentative agreement.

[36] The union learned for the first time of the employer’s intention to expand significantly the scope of the Band preference in employment, in the context of this oral hearing. The union called reply evidence to clarify the actual employment practices at the AGS over the last few years. That reply evidence was given by the PSAC Local President, who has been employed as a teacher at the AGS for some ten years. She is one of approximately seven members of the certified bargaining unit who is not a First Nations person. Her evidence, which the Board accepts, indicates that the Band Council has not acted in a manner consistent with its stated goal of 100% of the teachers from the community. The PSAC Local President provided relatively recent examples where the Band Council hired people who were not from the community as teachers at the AGS in preference to other qualified applicants who were from the community.

IV. Analysis

[37] The Board is satisfied that the employer is in breach of its obligations under section 50(a) of the Code.

[38] As stated at Part II–Relevant Law herein, to meet their obligations under section 50(a) of the Code, parties must communicate with each other to an extent that informed and rational discussions of the issues may occur. Proper collective bargaining depends upon effective communication. To be effective, communication must be timely.

[39] The employer did not breach the Code by insisting on the right to be able to ratify the tentative collective agreement. The employer did not breach the Code by waiting several months to convene a Council meeting to decide, formally, whether to ratify the tentative agreement. The employer did not breach the Code by refusing to ratify the tentative collective agreement.

[40] The Board finds, in the circumstances of this case involving the negotiation of a first collective agreement and an employer composed of an elected council, that the employer had an obligation to communicate more than simply the decision not to ratify. In the circumstances of this case, the employer also had an obligation to communicate the reasons for its decision not to ratify. That is particularly the case where, as here, the employer’s decision not to ratify was based on concerns related to no more than four particular articles in the tentative collective agreement. It had an obligation to communicate those reasons in a timely manner. It did not do so.

[41] The employer’s obligation to communicate the reasons for its decision not to ratify arose in January 2011, when the employer’s negotiating team and the Band Council met to review the tentative agreement and identified concerns over specific articles set out therein. The obligation crystallized when the union served its unfair labour practice complaint on the employer on or about February 28, 2011. The Board finds, on the facts of this case, that the obligation to make every reasonable effort to enter into a collective agreement included the obligation to communicate the reasons for its refusal to ratify and to do so in a timely manner.

[42] The employer ultimately communicated the reasons for its decision not to ratify the tentative collective agreement, but it only did so once it was compelled to give evidence as a respondent in an oral hearing before this Board. It did not, therefore, provide its reasons for the refusal in a timely manner. The employer’s decision not to ratify was made and communicated to the union in March 2011. The employer’s reasons for the decision not to ratify were communicated to the union in March 2012. That was a delay of approximately one year. The Board heard no evidence that the employer was in any way prevented from communicating its reasons not to ratify in a timely manner. To the contrary, the Board heard evidence that there were numerous communications and interactions between the union and the employer, both written and oral, both formal and informal, in the course of that same period of time. The Board finds that the employer failed to communicate effectively and in a timely manner and finds, therefore, that the employer is in breach of the obligation under section 50(a) of the Code to make every reasonable effort to enter into a collective agreement.

[43] It is useful to consider the chronology of events. The tentative collective agreement was concluded December 2, 2010.

[44] The employer met with its negotiating team and its Director of Finance in January 2011, and identified three or four specific areas of concern in the tentative agreement. The union’s unfair labour practice complaint was served and filed February 28, 2011. The employer made and communicated its decision not to ratify the tentative collective agreement on March 17, 2011. The employer was aware, on that same day, of the few articles of the tentative collective agreement that were a concern to it. The employer also served and filed its response to the complaint on March 17, 2011. That response included a responding affidavit sworn by the Band Administrator on March 17, 2011. The responding affidavit is lengthy and comprehensive, yet it is silent as to the result of the employer’s ratification vote or the reasons for its decision not to ratify.

[45] In its responding affidavit dated March 17, 2011, the employer indicated that the then Chief met with the union representatives shortly after the notice to bargain was issued in 2008, and he assured them “that it was his intention to reach a collective agreement and that he wanted to have an open dialogue with the union on labour relations matters.”

[46] The employer undertook extensive preparation for the oral hearing before this Board. The employer filed its book of documents and its witness statements on August 4, 2011. The witness statement for the Band Administrator says that: “She will also testify as to the consideration given to the tentative collective agreement.” The witness statements are silent as to the result of the employer’s ratification vote or the reasons for its decision not to ratify.

[47] The hearing began, with opening statements, on October 12, 2011. The employer’s opening statement indicated, among other things, that the Band Council did meet on March 17, 2011, that it decided not to ratify and that it did so based on three concerns. The employer’s counsel indentified the three concerns as: vacation pay, performance management and the certification of teachers within the pay scale. Moreover, the employer emphasized that it gave its negotiating committee clear instructions to return to the negotiating table with those three issues.

[48] Before adjourning the oral hearing on October 14, 2011, the Board reminded the parties that they both remained subject to the ongoing obligation to bargain collectively in good faith; the fact that the Board was hearing the unfair labour practice complaint did not relieve the parties of their various obligations, including the obligation to communicate effectively.

[49] The hearing resumed March 26, 2012. The employer called its first witness on March 27, 2012. It was on that day, from that witness, that the employer communicated the reasons for its decision not to ratify. The Board heard the evidence as to the specific nature of the employer’s concerns related to the now four particular articles of the tentative collective agreement. Like the Board, the union heard, for the first time, on March 27, 2012, of the employer’s desire to expand significantly the scope of article 5 related to Band preference. When the hearing adjourned on March 28, 2012, the Board again reminded the parties that they remained subject to the ongoing obligation to bargain in good faith.

[50] It was open to the employer to communicate to the union the reasons for the employer’s decision not to ratify much sooner than March 27, 2012.

[51] The oral hearing resumed on November 14, 2012. The employer called its second and last witness on November 14, 2012. The evidence portion of the oral hearing concluded on November 16, 2012.

[52] The Board is struck by the lack of proportion between the work that would have been required by the employer to satisfy its obligation to communicate in a timely manner and the work that ultimately went into its response to the union’s unfair labour practice complaint. The work that went into the preparation and presentation of the employer’s case before the Board from February 2011, through to final argument on July 16, 2013, was significantly greater than the work that would have been required to apprise the union, ideally in writing, in January 2011, of the specific nature of its concerns over the three, or four, particular articles of the tentative collective agreement. That seems inconsistent with the passage the employer chose to repeat and rely upon in its responding affidavit concerning its desire to have an open dialogue with the union to reach a collective agreement.

V. Remedy

[53] The Board reiterates that the employer has consistently and often maintained, in the course of this proceeding, that it considers itself bound by the undisputed articles of the tentative collective agreement concluded on December 2, 2010, and that it wishes to resume collective bargaining to conclude a first collective agreement.

[54] Pursuant to sections 99(1)(b.1) and 99(2) of the Code, the Board grants the following remedy to address the employer’s breach of its duty to communicate effectively and in a timely manner:

•      The employer shall forthwith cease to breach its obligations under section 50(a) of the Code;

•      Within 30 days of the date of this decision, the employer will serve the union with a brief explanation in writing of its specific concerns regarding the four disputed articles of the tentative collective agreement;

•      For greater certainty, these four articles are: article 12.03 regarding vacation pay, Appendix A regarding a teacher’s certification for the purpose of the wage grid, article 29 regarding performance standards and article 5 regarding Band preference;

•      Within 30 days of the date of this decision, the employer will also serve the union with a copy of the specific text which the employer proposes for each of the four disputed articles;

•      The employer will file a copy of all of the above documents with the Board at the same time it serves them on the union;

•      Thereafter, the parties will meet forthwith to resume collective bargaining;

•      The parties will have a 60-day period to bargain collectively and to make every reasonable effort to enter into a collective agreement;

•      At the end of that 60-day period, the union will advise the Board which, if any, of the four disputed articles have been resolved;

•      At the end of that 60-day period, if the parties have not reached an agreement on article 5 related to Band preference, then the Board is satisfied that the appropriate remedy is to direct a binding method of resolving that particular article of the tentative collective agreement.

 

[55] If, 90 days from the date of this decision, the union and the employer have not agreed on the specific terms of article 5 regarding Band preference, then the union may request and the Board will order, pursuant to section 99(1)(b.1) of the Code, a binding method of resolving those terms.  If the parties are not able to agree amongst themselves on a binding method of resolving that dispute, then the Board will impose a method and provide details. The Order of the Board in this regard will apply only to the dispute over the specific terms of article 5.

[56] The Board retains jurisdiction to oversee its remedial order.

[57] Should either party require a formal Board order, it may submit a draft order, approved by the other party as to form and content, to the Board.