FPSLREB Decisions

1 By letter of March 29, 2012, the Research Council Employees' Association (“the bargaining agent” or RCEA) requested arbitration in respect of the Technical Category (TO) bargaining unit. Along with its request, the bargaining agent provided a list of the terms and conditions of employment that it wished to refer to arbitration. Those terms and conditions of employment and supporting material are attached as Schedule 1.

2 By letter of April 10, 2012, the National Research Council of Canada (“the employer” or “the NRC”) provided its position on the terms and conditions of employment that the bargaining agent wished to refer to arbitration. The employer also provided a list of additional terms and conditions of employment it wished to refer to arbitration. That letter and supporting material are attached as Schedule 2.

3 By letter of April 16, 2012, the bargaining agent provided its position on the additional terms and conditions of employment that the employer wished to refer to arbitration. That letter is attached as Schedule 3.

4 The parties entered into a mediation process on June 18 and 19, 2012, which did not result in a settlement. By letter dated July 3, 2012, the bargaining agent requested that its request for arbitration be reactivated.

5 By letter of July 9, 2012, the bargaining agent raised an objection to part of the employer’s proposal on severance pay, specifically for clause 56.7.1 of the collective agreement, indicating that the proposal contained a sentence that had not been the subject of negotiations between the parties during the period before arbitration was requested. The sentence read as follows:

This payment shall also be included in Workforce Adjustments (WFA) calculations with respect to the maximum total lay-off benefits to which a surplus employee is entitled under the NRC WFA Policy.

6 For greater clarity, I will refer to the sentence in this decision as the “late proposal.” The bargaining agent characterized the late proposal as having a direct impact on the employer’s work force adjustment (“the WFA”) policy, which had not been the subject of collective bargaining but that had recently been modified as a result of separate multi-party negotiations.

7 By letter of July 20, 2012, the employer responded to the bargaining agent’s comments by indicating that discussions had taken place on the employer’s proposal on article 56 of the collective agreement as a whole during the negotiations of November 22, 2011. The employer also stated that negotiations took place on February 21 and 22, 2012 on the issue of severance pay. The bargaining agent rejected the employer’s proposal, stating that the proposed severance package was not good enough. The employer stated that it prepared a new severance pay proposal but that it was not presented to the bargaining agent, which broke off negotiations following the February 22, 2012 bargaining session. The bargaining agent then applied for arbitration, preventing further discussions on the matter. The employer also stated that extensive discussion of the severance pay article occurred during the mediation session of June 18 and 19, 2012.

8 By letter of August 9, 2012, the bargaining agent provided additional comments to the employer’s letter of July 20, 2012, challenging the different arguments put forward by the employer and reasserting its point that the employer’s late proposal on clause 56.7.1 of the collective agreement represented a new and significant proposal that was introduced only after the bargaining agent requested the appointment of an arbitration board.

9 On August 29, 2012, the parties were informed that the Chairperson of the Public Service Labour Relations Board (“the Board”) had decided to hold a hearing so that the objection raised by the bargaining agent could be addressed. That hearing took place on October 4, 2012. Under section 45 of the Public Service Labour Relations Act (“the Act”), the Chairperson has authorized me to perform any of his functions, including powers or functions delegated to him by the Board to present the terms of reference of an arbitration board.

The October 4, 2012 hearing

10 The parties presented an agreed statement of facts and a common book of documents. That statement included a chronology of this round of collective bargaining which started with the RCEA serving notice to bargain on December 1, 2010. The statement also confirmed that a separate process exists for negotiating the NRC’s WFA policy. That process involves the employer, the RCEA and the Professional Institute of the Public Service of Canada. In the agreed statement of facts, the parties also wrote that the wording of the late proposal was not discussed during bargaining. The late proposal is the underlined part of the following abstract from the employer’s complete proposal on clause 56.7.1 of the collective agreement:

56.7.1 Severance benefits payable to an employee under this Article shall be reduced by any period of continuous employment in respect of which the employee was already granted any type of termination benefits such as severance pay, retiring leave, rehabilitation leave or a cash gratuity in lieu thereof by the Public Service, a federal crown corporation, the Canadian Armed Forces or the Royal Canadian Mounted Police.

Under no circumstances shall the maximum severance pay provided under article 56 be pyramided.

For greater certainty, payments made pursuant to 56.09 to 56.12 or similar provisions in other collective agreememts [sic] shall be considered as a termination benefit for the administration of this clause. This payment shall also be included in Workforce Adjustments (WFA) calculations with respect to the maximum total lay-off benefits to which a surplus employee is entitled under the NRC WFA Policy.

[Emphasis added]

11 As part of the collective bargaining process, the employer submitted a general proposal to the bargaining agent on September 14, 2011 in which it stated that it wanted to discuss changes to the severance pay provisions of the collective agreement to align them with those negotiated by the Treasury Board and the Public Service Alliance of Canada. On November 22, 2011, the employer proposed eliminating severance pay for voluntary leave but improving it in other circumstances. Before the bargaining agent’s request for arbitration, the employer’s position had evolved into a five-page proposal that included substantive changes to the existing wording of the collective agreement. Those changes included the above-cited wording, with the exception of the late proposal (the underlined text in the above paragraph 10 of this decision).

12 The parties agreed that the inclusion in the collective agreement of the employer’s late proposal would, in some circumstances, reduce the amount of benefits payable to some employees in a WFA situation. The bargaining agent qualified that reduction as a loss for those employees. The employer argued that the proposal would avoid potential “double dipping” situations and therefore was a simple modification of a proposal not a new term and condition of employment.

13 The next four paragraphs include a brief summary of the arguments presented by the parties in support of their positions on the inclusion of the late proposal in these terms of reference.

14  The bargaining agent argued that the arbitral award cannot deal with the employer’s late proposal because it involves a change to the terms and conditions of employment that had not been the subject of negotiation before arbitration was requested. The acceptance of the late proposal would mean, in some circumstances, a reduction of the benefits available to laid off employees under the NRC’s WFA policy. The late proposal was not a clarification brought up for an existing proposal but was rather a change to the terms and conditions of employment. The employer’s initial proposal dealt with a series of changes to the severance pay benefits. The late proposal was not included in those changes.

15 The bargaining agent referred me to Professional Institute of the Public Service of Canada v. Treasury Board, PSSRB File No. 185-02-211 (19791119); Professional Institute of the Public Service of Canada (Engineering Group) v. Treasury Board, PSSRB File No. 185-02-227 (19800812); Treasury Board v. Economists’, Sociologists’ and Statisticians’ Association, PSSRB File No. 185-02-281 (19841221); Association of Justice Counsel v. Treasury Board, 2009 PSLRB 20; Woodstock General Hospital v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 636, [2012] O.L.A.A. No. 193 (QL); and Graphic Communications International Union, Local 34-M v. Southam Inc., (2000), 63 C.L.R.B.R. (2d) 65.

16 The employer agreed with the bargaining agent that accepting the late proposal would mean, in some circumstances, a reduction of the benefits available to laid off employees under the WFA. However, the employer argued that the late proposal is simply a modification to a proposal that was submitted and negotiated before the bargaining agent applied for arbitration. The employer stated that the objective of the late proposal is to avoid the double dipping of severance benefits by laid off employees. It does not introduce new terms and conditions of employment in relation to the proposals discussed during the negotiations. Instead, it clarifies the intent of the employer’s initial severance pay proposal. The employer argued that the issues of severance pay and double dipping were discussed during negotiations and that the late proposal simply clarifies the intent of its initial severance pay proposal.

17 The employer referred me to Professional Institute of the Public Service of Canada (Computer Systems Administration Group) v. Treasury Board, PSSRB File No. 185-02-28 (19710629); Professional Institute of the Public Service of Canada (Engineering Group); Economists’, Sociologists’ and Statisticians’ Association; and Association of Justice Counsel.

18 The question for me is to decide whether the employer’s late proposal may be included in the terms of reference of the arbitration board. To decide that question, I must determine whether the employer’s late proposal was the subject of negotiation between the parties before arbitration was requested. On that point, subsection 150(2) of the Act reads as follows:

150. (2) The arbitral award may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before arbitration was requested.

19 The employer admitted in the agreed statement of facts that the late proposal was never discussed with the bargaining agent before it requested arbitration. In light of that admission, the question becomes whether the late proposal by itself constitutes a term and condition of employment according to subsection 150(2) of the Act. For the employer, it is simply a clarification of a bargaining proposal on topics already discussed at the bargaining table. For the bargaining agent, the late proposal deals with a different term and condition of employment.

20 I reviewed the case law submitted by the parties, and I will comment on the decisions of direct interest for this decision.

21 In Association of Justice Counsel, the Chairperson accepted a late proposal by the bargaining agent, which amended its initial proposal for a closed office for employees to add that those offices should have exterior windows. The Chairperson agreed to include the amended proposal in the terms of reference. He concluded that the issue of offices was the subject of negotiations, and the amended proposal was not significantly different from the original proposal.

22 In Professional Institute of the Public Service of Canada (Computer Systems Administration Group), the Chairperson accepted a late proposal from the bargaining agent, which wanted to add to the “Standards of Discipline” clause a provision obliging the employer to supply employees with a copy of the “Standards of Discipline.” The Chairperson agreed to include the late proposal in the terms of reference on the basis that the “Standards of Discipline” clause was the subject of negotiation before the application for arbitration was filed. In fact, the employer itself had proposed to delete the entire “Standards of Discipline” clause as part of negotiations.

23 In Professional Institute of the Public Service of Canada (Engineering Group), the employer had raised and discussed the problem that it experienced in recruiting and retaining some categories of engineers. After the bargaining agent requested arbitration, the employer submitted a proposal to put in place a terminable allowance for those engineers. The Chairperson decided to not include that late proposal in the terms of reference of the arbitration board on the basis that the terminable allowance was never the subject of discussion during the negotiations.

24 In Economists’, Sociologists’ and Statisticians’ Association, the bargaining agent proposed that the employer pay the cost of child care expenses when employees were required to work outside their regular workdays. After the employer applied for arbitration. The bargaining agent amended that proposal to ask for a childcare allowance of $8.00 for employees who worked three or more hours of overtime immediately after or before their scheduled hours of work. The Chairperson decided to not include that late proposal in the terms of reference of the arbitration board because it was not motivated by the same concern as the original proposal and it could not be considered as relating to the same term or condition of employment.

25 There is a clear distinction between the two first cases and the last two. In the first case, the issue was an office with or without a window. In the second case, the bargaining agent asked that employees be provided with a copy of the employer’s standards of discipline. In the context of those cases, those were not changes to the terms and conditions of employment that were not the subject of negotiations. In fact the proposals in questions dealt with the same terms and conditions of employment that were the subject of negotiations. The two last cases, in which the employer introduced a terminable allowance under the general topic of recruiting and retention and in which the bargaining agent changed its child care proposal, are closer to this case. The items which the parties wished to refer to arbitration were not mere modified proposals from those discussed in bargaining. They were found to no longer relate to the same term and condition of employment as the original proposal.

26 The general topic, in this case severance pay, was discussed, but the proposal to change a term and condition of employment was not presented and discussed before the application for arbitration was made. In this case, the employer wants to substantially change the severance pay provisions of the collective agreement. Initially, it submitted a general proposal, and later, a more specific proposal to the bargaining agent. After that, an arbitration board was requested, and the employer then submitted its late proposal. That proposal also dealt with the issue of severance pay, but it asked for a further concession from the bargaining agent in comparison to the employer’s earlier proposal. On this point, the parties agreed that the inclusion in the collective agreement of the late proposal would, in some circumstances, reduce the amount of benefits payable to some employees in a WFA situation.

27 In this case, the term and condition of employment, as per subsection 150(2) of the Act, is not severance pay. It is rather each substantial benefit under that heading, such as the entitlement to severance pay, the conditions to receive it, the applicable quantum or formula, whether it is payable to surplus employees, under what conditions, etc. Each of those benefits is a separate term and conditions of employment under severance pay.

28 The employer admitted that the late proposal was never discussed with the bargaining agent before it requested arbitration. That late proposal constitutes a term and condition of employment, according to subsection 150(2) of the Act, and it would be contrary to the Act to include it in the terms of reference of the arbitration board. In this case, the employer did more than vary or clarify its position. It fundamentally increased what it wanted from the bargaining agent in comparison to its last position before the request for an arbitration board was made. Real negotiation should take place between the parties before arbitration, and they cannot agree on proposals that were not made. On that point, I agree with the following abstract of Professional Institute of the Public Service of Canada (Engineering Group):

…

… Surely an undisclosed proposal cannot be one that was subject to negotiation between the parties…

…

… There can be no negotiation in good faith without disclosure of a proposal for consideration and response by the other party … That is not to say that the parties may not or indeed will not, vary their positions they adopted during negotiations when they submit a matter for arbitration. But some specific proposal must have been made to make it a matter that was “a subject of negotiation between the parties during the period before arbitration was requested in respect thereof.”

…

Conclusion

29 Accordingly, pursuant to section 144 of the Act, the matters in dispute on which the arbitration board shall make an arbitral award are those set out in Schedules 1 to 3 inclusive, which are attached to this decision, with the exception of the following sentence of the employer’s proposal for clause 56.7.1 of the collective agreement which is excluded:

This payment shall also be included in Workforce Adjustments (WFA) calculations with respect to the maximum total lay-off benefits to which a surplus employee is entitled under the NRC WFA Policy.

30 Should any jurisdictional question arise during the course of the hearing as to the inclusion of a matter in these terms of reference, it must be submitted without delay to the Chairperson of the Board, who is, according to subsection 144(1) of the Act, the only person authorized to make such a determination.

October 23, 2012.

Renaud Paquet,
Vice-Chairperson of the
Public Service Labour Relations Board