On April 17, 2019, the Federal Public Sector Labour Relations and Employment Board (the “Board”) released a decision addressing an unfair labour practice (“ULP”) complaint that was filed by the CMCFA on September 21, 2015.

BACKGROUND

The ULP complaint originated from management’s conduct during the collective bargaining negotiations that began in 2014. The parties held a total of six (6) bargaining sessions and agreed to eleven (11) proposals between November 2014 and February 2015. Further bargaining sessions were then scheduled for August, 2015.

In late April 2015, local RMC management expressed its intention to no longer honour local memorandum of agreement #1, related to UT evaluation in the three years prior to a scheduled retirement. That issue was ultimately the subject of a grievance and the Board eventually declared that memorandum of agreement #1 represents a past practice that has been incorporated into the collective agreement. As a result, RMC must comply with its terms; the decision is sumarised here.

In light of local management’s refusal to comply with memorandum of agreement #1, during the August 2015 bargaining session the CMCFA raised the issue of compliance with all existing local memoranda. In response, management advised the CMCFA bargaining team that it would not recognize any existing memoranda and would not enter into any new memoranda; in order to preserve the benefits contained in the memoranda the Association would have to negotiate such terms into a new collective agreement. At that point, the CMCFA bargaining team left the bargaining table to consult with legal counsel. Subsequently, in September 2015, local RMC management refined its position and agreed to comply with some but not all memoranda, but only until a new collective agreement was reached.

ISSUES

The CMCFA’s ULP complaint alleged that management failed to comply with two separate requirements of the Federal Public Sector Labour Relations Act, as follows:

1. Management breached the statutory freeze provision set out at s. 107 of the Act by changing terms and conditions of employment, namely refusing to honour the local memoranda after a notice of bargaining had been filed and before a new collective agreement was reached;
2. Management breached the obligation to bargain in good faith and make every reasonable effort to enter into a collective agreement as required by s. 106 of the Act when it declared late into the bargaining process that it would no longer honour the memoranda nor enter into new memoranda.

OUTCOME

Ultimately, the Board dismissed the ULP complaint. It did so largely by refusing to follow principles established in its prior jurisprudence and distinguishing that jurisprudence from the facts narrowly with respect to our case.

The Statutory Freeze

The Board found that although management may have declared an intention to no longer comply with the terms of the applicable memoranda, no bargaining unit member was actually deprived of a benefit provided by such memoranda. In other words, management had not yet followed through on its stated intention by the time that the ULP was filed.

The CMCFA relied on two prior decisions of the Board which stand for the principle that, as long as a real difference between the parties has crystallized, a complaint should be addressed by the Board even if some aspects of it are anticipatory or prospective. In those prior decisions, an active statement of an intention to violate a term with a collective agreement were held to be unlawful. In the present case, the Board chose not to follow the jurisprudence relied on by the CMCFA and it instead followed a different line of prior decisions that stand for the principle that a violation of s. 107 cannot occur until there is an actual denial of a benefit or a change of a term of employment.

Bad Faith Bargaining

The CMCFA took the position that management breached its obligation to bargain in good faith and make every reasonable effort to enter into a collective agreement when it waited to raise the issues regarding the memoranda until after the parties participated in six (6) bargaining sessions and agreed to eleven (11) separate proposals. In advancing that position, the CMCFA relied on prior jurisprudence which found as follows:

The decision making capability of the parties depends upon not only a full and open discussion of the items which are in dispute, but also upon an awareness that the scope of the dispute is limited to those items which have been put into dispute in the early stages of the bargaining process. […] A party which holds back on an item or a number of items and then attempts to introduce these matters into the negotiations as the process nears completion, effectually destroys the decision making framework. A party cannot rationally or properly consider its bargaining position in the absence of absolute certainty that the full extent of the dispute has been revealed. The tabling of additional demands after the dispute has been defined must, in the absence of compelling evidence which would justify such a course, be construed as a violation of the duty to bargain in good faith.

Although the Board accepted the importance principle set out above, in the present case it found that the facts were distinguishable and did not apply because in its view, the CMCFA and Treasury Board were not in a late stage of bargaining when the issue of the memoranda arose. Also, according to the Board, management did not take an overly rigid position since it did say it would consider any proposals to incorporate existing memoranda language into a new collective agreement.

CONCLUSION

Obviously, the CMCFA does not agree with the outcome in this case. However, all is not lost. In June 2018, while the parties were waiting for the release of the Board’s decision in this case, they returned to the bargaining table and reached agreement on the terms of a new collective agreement. The concerns articulated by the CMCFA throughout the ULP process were well received by the members of a new management bargaining team, and the terms of the memoranda remain in force, at least until the expiration of the new agreement.

Should they have questions, CMCFA members can reach out to the members of the CMCFA Bargaining Committee, namely Dr. Jean-Marc Noël (Chief Negotiator president@cmcfa-apcmc.ca), Dr. Sylvain Leblanc (RMC & Returning Officer leblanc@cmcfa-apcmc.ca), Dr. Helen Luu (RMC grievanceofficer@cmcfa-apcmc.ca), Dr. Barbara Falk (Legal Officer, CFC legalofficer@cmcfa-apcmc.ca), and Dr. Charles-Philippe Courtois (CMR courtois@cmcfa-apcmc.ca).