FPSLREB Decisions

I. Complaint before the Board and policy grievance referred to adjudication

1 This adjudication concerns a dispute between the Canadian Federal Pilots Association (CFPA or “the bargaining agent”) and the Treasury Board (Department of Transport) (“the employer”) about the employer’s decision to sell aircraft in the National Capital Region that had been used by CFPA members as a means of maintaining their currency as pilots. The CFPA was formerly named the Aircraft Operations Group Association (AOGA).

2 The dispute resulted in the CFPA filing both a complaint under the Public Service Labour Relations Act (“the Act”) and a policy grievance alleging a breach of the agreement between the CFPA and the Employer for the Aircraft Operations Group; expiry date, January 25, 2011 (“the collective agreement”).

3 The same facts gave rise to both the complaint and the policy grievance, and the parties agreed to them being consolidated and heard together.

4 The policy grievance was filed on May 19, 2010, and reads as follows:

The Union grieves the Employer’s violation of union and employee rights by requiring pilots working at Headquarters to participate in the Professional Aviation Currency Program (“PACP”) exclusively by simulator training to the exclusion of actual flying experience, in breach of Article 47.04 of the collective agreement. The particulars of the grievance are as follows:

(1) The PACP requires “in airplane flight exposure.” The sale of Transport Canada aircraft will prevent employees from obtaining “in airplane flight exposure,” in violation of the PACP and Article 47.04 of the Collective Agreement;

(2) Article 47.04 of the Collective Agreement requires that changes to the criteria and procedures established by the PACP be made by mutual agreement of the Employer and the Union.

RELIEF REQUESTED

That the Employer cease and desist its planned sale of Transport Canada aircraft;

That the Employer comply with the procedures as set out at Article 47.04 of the Collective Agreement.

5 The complaint was filed on May 21, 2010. The CFPA alleged that the employer had breached its duty to bargain in good faith and had engaged in an unfair labour practice contrary, respectively, to section 106 and paragraph 186(1)(a) of the Act.

6 The bargaining agent particularized in the complaint “… each act, omission or other matter complained of,” summarized as follows:

…

3.  On or about August 14, 2009, a collective agreement was entered into between the parties. The Agreement between the Treasury Board and the Association expires January 25, 2011.

4.  On or about April 26, 2010, approximately eight months after concluding the current collective agreement, Transport Canada (the “Employer”) announced that it was unilaterally undertaking program reductions in the Aircraft Services Directorate (“ASD”). In this regard, the Employer has undertaken to sell a substantial percentage of the department's aircraft, starting in 2010… .

5.  Marc Grégoire, Assistant Deputy Manager, announced that in 2011, flying on fixed-wing aircraft in Headquarters would no longer be available and that helicopter flying in Headquarters would be phased out shortly thereafter. The Employer acknowledged that the impact of the sale of aircraft will directly affect Ottawa-based pilot inspectors… .

6.  As a consequence, the Employer will require Ottawa-based pilot inspectors to maintain their qualifications exclusively through means other than flying aircraft, such as by the use of flight simulators.

7.  Occasional recourse to alternate means of maintaining professional currency is permitted by Article 47 of the Collective agreement, which provides:

ARTICLE 47 PROFESSIONAL AVIATION CURRENCY

47.01    The parties agree that the maintenance of Professional Aviation Currency is necessary for the Employer to fulfill its mandate and for employees to carry out their duties.

47.02    The Employer shall provide each medically fit Civil Aviation Inspector (CAI) with the opportunity to maintain his/her Professional Aviation Currency through the use of Departmental aircraft or an approved alternate professional currency program.

47.03    Professional Aviation Currency is deemed to have been met as a minimum, by the possession and maintenance of the Airline Transport Pilot License (ATPL) and Group 1 or Group 4 Instrument Rating/Pilot Proficiency Check or a Commercial Helicopter Pilot Licence and Group 4 Instrument Rating/Pilot Proficiency Check.

47.04    The Employer shall assign each employee in accordance with the criteria and procedures established between the Employer and the Union to a Professional Aviation Currency Program.

47.05    With the exception of 47.04 above all changes to the Transport Canada Professional Aviation Currency Policy for Civil Aviation Inspectors and the TSB policy on CAI Professional Aviation Currency shall be accomplished by means of mutual agreement between the parties.

…

8.  In accordance with the Collective Agreement, the Professional Aviation Currency Program (“PACP”) was developed by mutual agreement between the parties, in an attempt to provide civil aviation inspectors with an opportunity to maintain their Professional Aviation Currency when exceptional circumstances prevented them from undertaking a Regular Flying Program. The wholesale elimination of flying was never contemplated by the Program.

9.  Additionally, the PACP requires an element of “in-airplane flight exposure,” an objective that will no longer be met once the Employer’s plan reductions have taken place… .

10. Despite an admission by the Employer that the proposed sale of aircraft has been planned since 2008, no disclosure was made and no discussions whatsoever in this regard took place at the bargaining table during the recent negotiation of the current Collective Agreement.

11. The Employer’s actions in this regard constitute a clear breach of the statutory duty to bargain in good faith as set out in section 106 of the Act.

12. There is an ongoing duty to consult and deal with a trade union where the Employer introduces a change of fundamental importance, particularly where the change and its impact were not contemplated by the parties upon entering the agreement. This is especially so when the change comes on the heels of the conclusion of a collective agreement, and where the intention to proceed with the change was known to the employer in advance of the collective bargaining session.

13. Apart from collective bargaining, the Union was not consulted with respect to the proposed reductions and their impact on its members and the PACP as a whole.

14. The Employer’s unilateral decision to sell Transport Canada’s aircraft and ground Ottawa-based aviation safety inspectors constituted a rejection of the CFPA’s status as bargaining agent and amounts to an interference with the formation, selection or administration of a trade union contrary to subsection 186(1) of the Act.

II. Summary of the evidence

7 I heard from two witnesses, Gregory Holbrook and Daniel Slunder. The employer called no evidence.

8 The employer employs nationally approximately 400 pilots as civil aviation inspectors (CAIs) and emergency test pilots (ETPs). Approximately 130 of these pilots work in the National Capital Region. Their work is not flying per se but regulating civil aviation in Canada.

9 A CAI’s functions include taking check flights with commercial airline pilots and airline check pilots to ensure compliance and competence, reviewing aviation rules and regulations for airlines and commercial air operators in Canada, and overseeing air operators at the corporate level to assess compliance with aviation rules and regulations.

10 During check flights, pilots are subjected to certain exercises and are evaluated to determine whether they meet the standard for either the issuance or renewal of their pilot’s license.

11 The ETPs are responsible for testing and certifying aircraft and aviation equipment.

12 An area of common ground between the parties is that both recognize that it is essential that the CAIs and ETPs be very experienced pilots and that they maintain currency. An employment requirement is thousands of flying hours’ experience in the military or in private air operations as a pilot, contrasted with the less than 1000 hours that are sufficient for hiring by commercial airlines.

13 “Maintaining currency” means that the pilots must maintain their skills and keep up to date with new technology with both aircraft equipment and onboard systems. They are subjected annually to several assessments.

14 The CAIs and ETPs are members of the Aircraft Operations classification. The classification standard reads as follows:

Group definition

The Aircraft Operations Group comprises positions that are primarily involved in inspecting, licensing and regulating aircraft, aviation personnel, air carriers, aircraft operators, airports and supporting facilities; determining certification; developing aviation legislation, standards and information and ensuring compliance with them; and piloting aircraft.

Inclusions

Notwithstanding the generality of the foregoing, for greater certainty, it includes positions that have, as their primary purpose, responsibility for one or more of the following activities:

1.  the performance of the following activities for which recent experience in piloting an aircraft is required:

a.  the determination of requirements and the development of operational procedures, navigational and instrument approach facilities and landing systems

b.  the determination of aviation operational requirements for airports, support facilities, weather services, air traffic control services, air navigation and communication operations

c.   the investigation of aviation occurrences, the conduct of safety studies, and the identification of and the communication of information relating to safety deficiencies

d.  the enforcement of aviation legislation to ensure an adequate level of safety for the national civil air transportation system

e.  the validation and dissemination of aeronautical information and the planning and management of civil air transportation systems during contingency periods

f.   the advancement of aviation safety as provided for in Canadian Transportation Accident Investigation and Safety Board Act and Regulations

2.  the delivery of staff training to ensure the maintenance of operational standards

3.  the conduct and management of test flights of fixed and rotary wing aircraft for the purpose of determining compliance with airworthiness standards

4.  the piloting of helicopters for shipboard or land-based helicopter operations for all Canadian Coast Guard requirements

5.  the planning, evaluation and management of helicopter operations, systems and activities

6.  the leadership of any of the above activities

Exclusions

Positions excluded from the Aircraft Operations Group are those whose primary purpose is included in the definition of any other group.

Also excluded are positions in which experience as an aircraft pilot and a valid pilot’s license are not mandatory.

[Emphasis in the original]

15 These pilots have maintained currency through both continuing to pilot aircraft and operating flight simulators. Historically, they have been able to continue piloting aircraft by having access to Transport Canada’s fleet of approximately 39 aircraft, which are geographically dispersed across Canada. These aircraft perform many different functions besides being used by the CAIs and ETPs to maintain currency.

16 In 2008, 5 of the 39 aircraft were based in the National Capital Region.

17 Mr. Holbrook held the office of CFPA chair for three consecutive terms between July 1, 2000, and June 30, 2009. He testified that before 2000, the collective agreement contained no requirement to maintain currency.

18 The collective agreement then in effect expired on January 25, 2001. Article 46 of that agreement provided for the payment of an annualized extra duty allowance of $6300. Clause 46.01(b) stated the following about the eligibility requirements for the extra duty allowance:

… shall be the same as those contained in “Transport Canada Professional Currency Programs for Civil Aviation Inspectors” and the “TSB Policy on CAI Professional Aviation Currency” and may be changed after consultation with the Union.

19 In 2000, Mr. Holbrook led the bargaining agent’s negotiating team in a new round of collective bargaining.

20 Mr. Holbrook said that aviation currency was not initially on the bargaining agenda. However, on July 31, 2000, he received a letter from Art LaFlamme, Director General, Civil Aviation, Transport Canada, at the time. The letter stated that in the employer’s opinion, the number of CAIs on the flying program should be reduced and that it wished to have significantly greater numbers of CAIs on the “Alternate Professional Currency Program.” It was addressed to Mr. Holbrook as AOGA National Chair. It read as follows:

…

AO-CAI members provide and will continue to provide a significant and essential component in Transport Canada’s safety oversight program of the national civil air transportation system. It is fundamental that the professional qualifications of these members are maintained. Historically, this has been performed, primarily, through the provision of flying hours on Aircraft Services Directorate (ASD) aircraft. Canada is unique, internationally, as an aviation authority in this aspect. It is clear that advances in technology allow for a broader range of tools which will keep AO-CAI members appropriately trained and equipped to deliver the Civil Aviation safety program. Further, Cabinet has directed all departments to review greenhouse gas emissions resulting from their operations with a view to establishing targets for reducing emissions. Transport Canada has been tasked to review whether there is potential to save fuel and reduce emissions without compromising its safety program mandate.

As you are aware, the Alternate Professional Currency Program (APCP) was developed and accepted by both Transport Canada and the AOGA. Unfortunately, recruitment into this program has not met expectations. The National Civil Aviation Management Executive (NCAMX) is of the view that flying of ASD aircraft, in order to support the Civil Aviation safety program, requires far fewer AO-CAI members than currently on the flying program. Further, in the interests of safety, NCAMX intends that CAIs flying departmental aircraft be allotted sufficient hours to be fully current and proficient. NCAMX in order to maximize the productivity of Inspectors in their safety oversight duties wishes to discuss with the AOGA the placement of significantly greater numbers of AO-CAI Inspectors on the APCP. We believe it would be more appropriate for CAI managers to be on the APCP. As well, the Civil Aviation program would benefit by having Headquarters CAIs and a small percentage of Regional CAIs on the Alternate Program. As a starting point for discussion, I propose that all CAI managers be placed on the APCP effective April 1, 2001 followed by identified Headquarters and Regional CAIs on October 1, 2001. I have asked Merlin Preuss, Chair, TC/AOGA Sub-Committee, to place this issue as an agenda item at the next meeting.

Transport Candidate is open to considering your views on this matter and demanding our proposals as determined through the consultation process. I look forward to a constructive dialogue on this issue leading to the most effective means of implementing the Civil Aviation program, maximizing the productivity of our Inspectors and ensuring they are appropriately trained and their professional qualifications are maintained, and, as well, addressing the environmental concerns in a responsible and effective manner.

…

21 Mr. Holbrook understood that the “consultation process” meant something other than bargaining. He said that while the initial paragraph suggested consultation, the last paragraph aroused suspicion that the employer was open to discussing only the policy’s implementation rather than the policy itself. The consultative meetings referred to ceased after collective bargaining started.

22 Mr. Holbrook testified that the covering memo showed that Mr. LaFlamme’s letter had been sent to all managers across the country. In turn, some of them had advised their employees, leading to complaints that the bargaining agent executive knew about it but did not share it with the membership.

23 The minutes of a meeting between the bargaining agent and the employer’s Management Issues Subcommittee of August 24, 2000, referred to the July 31, 2000, letter and noted as follows:

…

… The AOGA feels that the current program adequately meets the AOGA requirements. They are strongly opposed to any change to the APCP as written with the exception of an administrative update. Specifically, the AOGA does not support the directed placement of more individuals on the APCP; however, they do agree to promote the current APCP. Pending resolution of the different perspectives on the future APCP policy, it was agreed that the current program will be promoted. This issue will be raised as a discussion item at the next meeting.

…

An amended version of the APCP will be prepared for consultation at the next sub-committee meeting.

…

24 On November 6, 2000, Mr. Holbrook received another letter from Mr. LaFlamme, which contained, among other things, a proposal “… that the assignment of Civil Aviation Inspectors (CAIs) to the Professional Currency Program to qualify for [the Extra Duty Allowance], either through flying TC aircraft or appointment to an alternate program, be management determined….” It attached a draft of proposed changes to the policy.

25 The bargaining agent believed that what was being proposed was a substantial change and that because notice to bargain had been given on October 25, 2000, a freeze on any change of conditions was required. On January 15, 2001, Mr. Holbrook wrote to that effect to the employer. The bargaining agent has stipulated that whether a freeze should have been imposed is not an issue in the present case.

26 The round of bargaining was not successful. A national strike resulted. Ultimately, the dispute was referred to arbitration for resolution. However, currency was not referred, and it remained the subject of negotiations until 2002. The negotiations resulted in a document entitled, “Draft Professional Aviation Currency Articles,” which both Mr. Holbrook and the Treasury Board negotiator initialled on May 30, 2002.

27 The document provided for the addition of clause 46.01(b) to the collective agreement, which incorporated the eligibility requirements for the extra duty allowance and the timing of payments contained in Transport Canada’s Professional Aviation Currency Policy for Civil Aviation Inspectors and the Transportation Safety Board (TSB) Policy on CAI Professional Aviation Currency. The document also provided for the addition of a new article “XX” entitled “Professional Aviation Currency for Civil Aviation Inspectors.” Its provisions are identical to the current article 47, which is set out at paragraph 6 of this decision.

28 The May 30, 2002, document also contained the following, which the parties also initialled:

…

Letter to CFPA

For the duration of the collective agreement signed on ___ , any employee who has been assigned to an alternate professional currency program will, at the end of the two year period, be returned to the regular flying program for at least two years, unless the employee volunteers to continue on his/her alternate program or an amended alternate program.

Until such time as the criteria and procedures referred to in .04 and .05 are established between the parties, the employer will fulfill the requirements of Article XX.02 in accordance with the provisions contained in Transport Canada's Professional Currency Programs for Civil Aviation Inspectors (TP73068) and the TSB Policy on CAI Professional Aviation Currency that were effective as of 25 January, 2001.

The existing terms of an individual employee's Professional Aviation Currency Program will not change, except by mutual agreement, until such time as the criteria and procedures referred to in .04 and .05 are established.

Loss of license procedures and policies will be mutually developed and agreed and in the meantime, or failing agreement, the TSB policy and the ASD Training Difficulties and Training Review Board Policies will remain in effect.

The criteria and procedures referred to in XX.04 shall be established between the parties by December 31, 2002, or later by mutual agreement, meaning that, after Jan. 1, 2003, the employer cannot assign an employee to an alternate program, that has not previously been approved, without mutual agreement.

The terms of this letter are in force for the duration of the Collective Agreement signed on ________.

29 Mr. Holbrook said that the bargaining agent wanted to encapsulate the provisions that had been in the employer’s policy because the employer said that it was going to unilaterally change that policy. It was important to the bargaining agent’s members because it affected their ability to maintain their jobs. Therefore, it was important to have provisions that solidified the issue so that neither party could unilaterally change the status quo. The bargaining agent’s members were particularly concerned that a reduction to the flying program would adversely affect both their competency and their credibility with those over whom they were required to exercise oversight.

30 The minutes of a union-management meeting on January 22, 2003, show that the meeting’s objective was to discuss changes to the employer’s policies concerning professional currency programs for the CAIs. The minutes noted that during the recent contract negotiations, in which the parties had agreed on a draft article to be inserted into the collective agreement, the bargaining agent said it gave up the right for its members to choose whether they would be on the Alternate Professional Currency Program in exchange for an agreement that amendments to the existing policy would be made only through mutual agreement. The minutes then listed a number of issues that the bargaining agent believed needed to be addressed when amending the policy, including: “#1 a two-year rotation between regular flying programs and alternate programs,” “#10 Identification of funding for flying departmental aircraft and funding for alternate programs not involving departmental funding,” and “#12 Funding control to ensure each region and headquarters handles funding of Alternate Programs equitably.”

31 Mr. Holbrook responded with the bargaining agent’s position in a letter to the employer dated March 5, 2003, which after reciting the background, stated the following:

We believe that these agreements mean that the employer and the union are bound to develop a new policy by means of mutual agreement and that until such time as that is accomplished the employer will continue to operate in accordance with the policies as they existed on January 25, 2001.

32 On July 30, 2003, a new collective agreement was signed that included clause 46.01(b) and article XX, which had become article 47. At that time, no agreement had been reached on the content of the Professional Aviation Currency Program (PACP).

33 On December 2, 2003, the parties signed a letter of agreement identical to the “Letter to CFPA” in the May 30, 2002 document. The last sentence was modified as follows: “The terms of this letter are in force for the duration of the Collective Agreement signed on July 30, 2003.”

34 It took four years for the parties to finalize the PCAP’s contents. During the interim, they maintained the status quo by following the existing Treasury Board policies, as contemplated by the December 2, 2003, agreement.

35 On September 27, 2007, the bargaining agent served the employer with a notice to bargain. Mr. Holbrook led the bargaining agent’s negotiating team. The negotiations resulted in a collective agreement that was signed on August 14, 2009. It expired on January 25, 2011. Article 47 was not changed. During the negotiations, there was no discussion or disclosure respecting the pending sale of aircraft.

36 Mr. Holbrook testified that had he and his membership had known that there was a pending sale of aircraft, “[i]t would have changed everything, as they would have [had] to rewrite everything because the assurances they had received earlier would no longer be there.”

37 Mr. Holbrook said that from the outset, before 2003, the employer said that it was motivated by budget pressures to increase the use of flight simulators for maintaining pilot currency. However, the employer refused to disclose its available budget, and so the policy was structured so that money was not a factor when establishing criteria. It was left up to the employer to deal with the cost.

38 Mr. Holbrook said that because there was a serious mistrust of management minimizing the flying program, the bargaining agent’s executive passed a resolution that whatever the agreement reached with the employer, it would be subject to a ratification vote by the bargaining agent’s membership.

39 Merlin Preuss led the employer’s team for negotiating the new PACP. Mr. Holbrook testified that when Mr. Preuss was told of the membership’s concerns and deep-seated distrust, he suggested he would personally meet with the entire executive board to allay its concerns. The bargaining agent agreed, and the meeting occurred in February 2006 in Ottawa and was attended by members of the executive from across the country. Mr. Holbrook said the bargaining agent did not record or take notes out of respect for Mr. Preuss so that he could speak as to the employer’s intentions. The draft policy that had been negotiated was the same as the one later ratified, but no copy of it was supplied at this meeting.

40 Mr. Holbrook said that Mr. Preuss listened to the bargaining agent’s concerns and reiterated the principles that had been agreed to in the May 30, 2002, and December 2, 2003, documents. In particular, he stated that Mr. Preuss reassured the group that at that time, the employer would not cut flying time but that it had budget pressures and needed a mechanism to deal with them. He said that if the employer took any initiative, it would do so in accordance with the provisions that had been agreed to. At one point in the meeting, someone challenged him, stating that the employer was “just trying to take our flying away.” Mr. Preuss responded by saying that was “not true” and that “we would never do that.” He said that in a “worst-case scenario, as we have already told you, there would be a rotation on a 50-50 basis so that a CAI would spend a maximum of two years in an alternate program before being returned to a flying program for a minimum of two years.” He said that there were shared concerns in a number of areas and that the employer’s intentions were as contained in the agreed-to policy.

41 Mr. Preuss’s mention of a minimum of two years in a flying program presumably referred to the May 30, 2002, and December 2, 2003, agreements. The latter stated that its terms would be in force for the duration of the collective agreement signed on July 30, 2003The collective agreement expired when a new agreement was signed on August 14, 2009.

42 It took additional time to finalize the language of the policy and to educate the bargaining agent’s members. Each member received a copy of Mr. LaFlamme’s letter of November 6, 2000, with the draft policy, Mr. Holbrook’s letter in response and the new negotiated policy, along with a ballot, minutes and an explanatory letter from Mr. Holbrook dated March 2, 2007. The letter reads as follows:

Dear CFPA Member:

This package contains information about the history, process, and contents of a new Transport Canada Professional Aviation Currency Program (PACP) that has been agreed to by management and awaits ratification by CFPA Members. Please read through this material, consult with your colleagues who attended the CFPA briefings on this issue, if you were not able to attend yourself, and then mark the enclosed ballot and put in the mail. Results of the vote will be announced by email on March 30, 2000.

This whole process started when the TC DGCA sent a letter to us, in November, 2000, indicating that they intended to change their policy regarding the aviation currency program and enclosed a copy of the new program that they had devised. The document contained aggressive language such as management will decide what program you may or may not be assigned and the decision will be “final and binding” on the CAI. While it was indicated that they were open to consultation it was clear to us that change because of our representations was unlikely.

We responded to the issue by way of a letter to the Treasury Board on 21 Jan 2001 highlighting to them that we were in bargaining and that a statutory freeze existed. We indicated that the aviation currency program was part of our terms and conditions of employment and that no unilateral changes would be allowed until we concluded a new collective agreement. This also put our bargaining team on notice that this issue must be dealt with in the new collective agreement.

When we finally signed the new collective agreement on 30 July 2003 it contained a new Article 47 regarding Professional Aviation Currency. For the first time in our collective agreement history we had provisions requiring the employer to assign everyone to an aviation currency program; but that management’s right to assign was tempered by the requirement that the program and the assignment must be in accordance with provisions agreed to with union. There was the requirement for license and instrument rating maintenance and finally that the employer could not change the currency program without mutual agreement.

Also signed during, and subsequent to, the negotiations were several agreements to maintain the current program until such time as a new one could be developed by mutual agreement. The enclosed documents provide the history and include the proposed new agreement that was developed through negotiation with management over the last 3 years.

The objectives of the CFPA in the process were:

• Fair process for everyone
• Eliminate subjectivity
• Maximize flying/Protect Qualifications
• Prevent Rust-out
• Continue to accommodate volunteers for Alternate Program (currently 25-30% of CFPA Members on Alternate Programs)
• 50/50 Steering Committee
• Recourse Mechanism – internal and to an external third party

Our perceptions of the Employer's Objectives were:

• To maintain the right to assign that was already in the collective agreement
• To accommodate budget cuts in NCR
• Unwilling to share any financial info with union
• Retain exclusive control over finances

The document now before you contains improvements in a number of areas:

• Joint 50/50 Steering Committee
• Two forms of Recourse – Steering Committee (Section 3.1.5) and PSLRB (Article 47.04 of Collective Agreement)
• Everyone who wants to will get fair shot at flying slot
• Local manager cannot exclude someone from a flying program or an alternate program
• Fair – Non Subjective Process (If cutbacks occur – Priority list dictates who flys - Not Manager.)
• Guaranteed rotation if numbers of persons wanting an ASD 48 hour program (RFP) exceed the available flying slots (priority list)
• Centralized funding support for Alternate Programs
• Improvements to current ASD Alternate Programs (Additional Trips and 6 month refresher) to prevent Rust-Out
• Current Volunteers can stay on their alternate program or go back to regular flying program
• Recognition of non-ASD flying programs for Alternate List
• Increased opportunity for Creativity for Alternative Programs

But I was entitled... The facts are that there was never any enforceable documentation to make employer provide flying time – only practice and assurances that they would. The old Treasury Board Minute from the 1960’s provided that if you flew 24 hours within 6 months you got paid some extra money. There was never any document that required the employer to provide a specified amount of flying hours. There was nothing in our collective agreement discussing the requirement for Licences or Currency Programs.

The current aviation currency policy document is an Employer Policy (TP73068). TP = Transport Canada Policy. The November 2000 letter put us on notice that the employer intended to change their policy and we have managed thus far to extend the life of the current policy for an additional 6 years and add several important items to our collective agreement. The final item in this process is to conclude a new mutually agreed currency policy, which we have included in this package, and which reflects 3 years of negotiations to protect your interests to the best of our ability.

Your vote is important – please take the time to mark the ballot in place the envelope in the mail.

…

[Sic throughout]

[Emphasis in the original]

43 Before the ratification, the employer posted on its intranet site an explanation of the proposed policy. Mr. Holbrook testified it reflected what Mr. Preuss had expressed to the bargaining agent executive about a year earlier.

44 The bargaining agent membership ultimately ratified the policy in March 2007.

45 The new Professional Aviation Currency Program came into effect on April 1, 2007. Section 3.1 of the program reads as follows:

3.1     This policy sets out the requirements and means for a medically fit TC [Transport Canada] CAI or ETP to maintain his or her Professional Aviation Currency, professional knowledge, and earn the Extra Duty Allowance.

3.1.1  All TC employed medically fit CAI and ETP employees shall be assigned by the employer to a Professional Aviation Currency Program. This program could be a Regular Flying Program (RFP) of not less than 48 hours per fiscal year in accordance with the ASD [Aircraft Services Directorate] Operations Manual using departmental aircraft, or an Alternate Professional Aviation Currency Program approved by the Professional Aviation Currency Steering Committee.

3.1.2  The employer may from time to time change the Professional Aviation Currency Program to which a medically fit CAI or ETP is assigned.

This may result from changing job requirements or the availability of a regular ASD flying program. In addition to the criteria listed in Section 5.2.1, a priority status list for the assignment to a regular ASD flying program shall be considered.

3.1.3  A priority status list shall be established in Headquarters and each region in accordance with the following principles:

a)  the operational and program delivery requirements of the department;

b)  individual volunteering to change;

c)  first right of refusal based on priority within the list;

d)  decreasing level of priority based on the length of time an individual has been on a regular ASD flying program; and

e)  new employees will be initially place at the bottom of the priority list and then follow the normal progression upwards.

3.1.4  The Professional Aviation Currency of a CAI or ETP is deemed to have been met, as a minimum, by the possession and maintenance of an Airline Transport Pilot Licence (ATPL) and Group 1 or Group 4 Instrument Rating/Pilot Proficiency Check or a Commercial Helicopter Pilot Licence and a Group 4 Instrument Rating/Pilot Proficiency Check.

3.1.5  Any CAI or ETP who has been assigned to an Alternate Professional Aviation Currency Program by the employer and believes that such assignment is not consistent with the considerations outlined in Section 5.2.1 may make application, through the Chairperson, to the Professional Aviation Currency Steering Committee to have the decision reviewed.

3.1.6  Where an employee, whether on an Alternate Professional Aviation Currency Program or a Regular Flying Program, does not successfully complete a check ride in an aircraft or a simulator, or is not recommended through the course of recurrent or initial training for such check ride, the provisions of TC’s Aircraft Services Directorate Pilot Training Difficulties and Training Review Board Policy shall apply.

3.1.7  In a fiscal year if an employee follows both a Professional Aviation Currency Program based on flying an aircraft for a minimum of forty-eight (48) hours and an approved Alternate Professional Aviation Currency Program, the employee shall not be eligible to receive more than the maximum Extra Duty Allowance that he or she would be entitled to annually if he or she had successfully completed only one such program. The Extra Duty Allowance earned by the employee in any one fiscal year shall not exceed the annual amount specified in the Collective Agreement.

[Emphasis in the original]

46 Section 2.3 provided that new proposals to be added to the “Alternate Professional Aviation Currency Program” (“Alternate PACP”) were to be submitted for approval to a Professional Aviation Currency Steering Committee, which could approve, reject, or return the proposal to the originator with suggested changes. The committee was composed of four representatives each from the employer and the bargaining agent.

47 Sections 5.1 and 5.2 set out the policy and process for assigning the CAIs and ETPs to a PACP. They read as follows:

5.1 POLICY

5.1.1  The employer shall assign all medically fit CAIs or ETPs to a Professional Aviation Currency Program.

5.1.2  All CAIs are eligible for assignment to a Regular Flying Program. The employer shall determine whether a medically fit CAI is to be assigned to a Regular Flying Program consisting of flying departmental aircraft a minimum of 48 hours per year, or an Alternate Professional Aviation Currency Program that meets the criteria of paragraph 5.2.1 of this policy. All ETPs shall be assigned to a flying program that is appropriate to their duties.

5.1.3  Notwithstanding Section 5.1.2 above the assignment to a RFP on ASD aircraft will not be considered for those CAIs where:

a)  the duties of their position within the ASD already provides for full engagement in flying duties;

b)  the duties of their position either directly or indirectly, require them to maintain currency on a heavy turbo-jet aircraft (over 44,000 lbs) and on-going operational exposure to major airline operations.

c)  they are employed within the National Operations Branch – Airline Division; or

d)  they are based in a geographic location that precludes the feasibility of assignment to a RFP.

5.1.4  If a medically fit CAI or ETP changes his or her indeterminate position within the department the employer shall re-evaluate whether, in the new position, the CAI or ETP is to be assigned to a regular flying program consisting of flying departmental aircraft a minimum of 48 hours per year, or an Alternate Professional Aviation Currency Program that meets the criteria of paragraph 5.2.1 of this policy.

5.2     PROCESS

                    

5.2.1  The employer will assign a CAI to an Alternate Professional Aviation Currency Program in accordance with the following criteria:

a) all alternate programs will provide exposure to an operational environment, whether in a simulator, aircraft, Flight Training Device, aircraft jump seat, or suitable combination thereof, that contributes to an individual’s awareness of the National Civil Air Transportation System;

b) job requirements of the CAI’s position;

c) experience and competence of the individual CAI;

d) the position of a CAI on the priority status list for the regular flying program;

e) department's need for specialized and/or unique skills and knowledge; and

f) an individual's preferences and career aspirations.

5.2.2  The employer shall inform the Chair of the Professional Aviation Currency Steering Committee to which Professional Aviation Currency Program a CAI or ETP is being assigned.

5.2.3  If the CAI or ETP is to be assigned to a ASD Regular Flying Program, the type of aircraft to which the individual CAI or ETP will be flying shall be determined by the employer based on the experience and competence of the individual and operational requirements.

5.2.4  If the CAI or ETP is to be assigned to an Alternate Professional Aviation Currency Program other than those already approved in Appendix A, the program must be submitted to the Professional Aviation Currency Steering Committee in accordance with Section 2.3 of this policy.

5.2.5  Programs approved by the Professional Aviation Currency Steering Committee that are not funded by the Civil Aviation Flying Budget will be referred to the Civil Aviation Career Review Board for funding consideration.

[Emphasis in the original]

48 On the same date that the PACP came into effect, a “Professional Aviation Currency Policy Implementation Plan” that had been agreed to also came into effect. It provided guidance on how the transition between the old policy and the new policy was to be made. It read as follows:

Preamble

Civil Aviation Inspector (CAI) and Engineering Test Pilot (ETP) employees shall be provided with the opportunity to maintain their Professional Aviation Currency in accordance with the Collective Agreement between the Treasury Board and the Canadian Federal Pilots Association and the employer shall provide them with the opportunity to do so. The employer shall assign a pilot to a Professional Aviation Currency Program in accordance with the Professional Aviation Currency Policy (PACP). The program to which an individual pilot is assigned — may be a Regular Flying Program (RFP) of not less than 48 flying hours per year or an Alternate Professional Aviation Currency Program (APACP) as described in Appendix A of the PACP.

The PACP has been under review; however, no formal process exists to implement the changes to the PACP. Fundamental to this implementation plan is the process the employer will follow in assigning a pilot to an APACP should that be necessary. Current program funding levels have not demanded the assignment of pilots to APACPs; however, activities such as the Transport Canada Comprehensive Review an forecast expenditure reductions are likely to create a situation where employer assignment to APACPs will be more common. This implementation plan will permit a principled, formal way to effect any program reallocations or expenditure reductions in the professional aviation currency program.

Effective Implementation Date

The plan will be fully implemented by 1 April 2007

Implementation Considerations

The employer shall take into consideration the following factors when implementing the changes to the PACP:

1) Effective and efficient TC safety program delivery depends in part on:

a) a high degree of CAI and ETP competence and experience;

b) employment and personnel policies that support the above requirement including a training program based on state-of-the-art technology;

c) good morale and credibility in the eyes of the aviation community;

d) procedures and practices that achieve cost-efficiency and productivity reasonably comparable with private sector aviation.

2) Through the Professional Aviation Currency Policy and its Implementation Plan consideration must be given to the maintenance of our nation-wide fleet of aircraft and a sufficient compliment of qualified aircrew to operate ASD aircraft for an extended period of time during crisis or emergency given that:

a) The Departmental Emergency Response and Readiness Plan identifies Transport Canada's fleet of aircraft in support not only of Transport Canada's operations but also forms a part of our Nation's contingency plan to provide transportation services to Parliament and other government departments and agencies in time of crisis or emergency; and

b) If the Emergency Security Control of Air Traffic (ESCAT) or the National Civil Air Transportation System Shutdown Plan is invoked restricting air transportation, contingency plans and procedures are in place to permit the movement of law enforcement and government aircraft.

3) The professional knowledge that a pilot brings with him/her on entry to government service must be maintained and updated in order for the employee to remain effective.

4) The system and its component parts continually changes as new technology is developed and as new demands are placed on it. Pilots employed by Transport Canada must remain current with advancing technology and the changing needs of the aviation community.

5) To meet the Government of Canada emergency response needs and Transport Canada's program delivery is necessary to have:

a) a system to coordinate transportation requirements an document cost savings realized to the department and government of Canada;

b) aircraft that are maintained in a “state of readiness” with a high level of reliability to perform operational tasking;

 c) air crew that are confident with their level of training and flying currency to perform operational flying safely; and

d) a system in place to ensure eligible pilots are given equal opportunity to an ASD Regular Flame Program.

6) To meet program delivery and safety requirements Transport Canada should:

a) maintain a minimum number of qualified crew for each of its aircraft;

b) ensure pilots assigned to an RFP will fly a minimum of 48 hours per fiscal year; and

c) in Headquarters, and in each Region, provide the resources and means to coordinate the program delivery service utilizing ASD aircraft as well as crew scheduling to maximize the utilization of the fleet and the equitable distribution of flying hours to pilots assigned to the RFP.

Assignment to an APACP

The applicable (specific region or headquarters) prioritised lists must be created in accordance with the provisions and process in Section 5.3 of the PACP before the employer may assign a pilot to an APACP.

Payment of Extra Duty Allowance (EDA)

EDA will be paid in accordance with Sections 3.2, 4.2, an 6 of the PACP commencing the beginning of the next fiscal year following the formal agreement of the revised PACP. Assuming the agreement is signed before March 31, 2007, this section will be invoked on 1 April 2007.

[Sic throughout]

[Emphasis in the original]

49 Although the policy was to become effective on April 1, 2007, its implementation was partially delayed until April 2008 because of discussions about the methodology of making the biweekly payments for the extra duty allowance. However, the rest of the agreement was implemented on April 1, 2007.

50 As stated earlier, the next collective agreement was signed on August 14, 2009. It expired on January 25, 2011, and governs the policy grievance at issue. Article 47 was not changed from the preceding collective agreement. During the negotiations, no discussion occurred on the pending sale of aircraft.

51 Mr. Slunder became CFPA National Chair inJuly 2009. On April 26, 2010, he received a letter from the director general of Transport Canada’s Human Resources Directorate. The material parts of the letter read as follows:

…

I am writing to you in confidence to inform you of the impact of a decision related to the operations of the Aircraft Services Directorate on members of your bargaining unit.

Transport Canada undertook a detailed review of all of its programs to ensure that programs and associated operating expenditures were aligned with government priorities and responsibilities. Regular reviews of program spending are critical to ensure every dollar delivers results and meets the changing needs of Canadians. As part of this review, we look for ways to better serve Canadians and set the foundation for more efficient and effective design of programs while maintaining our commitment to the safety of the traveling public.

As a result of this review, Transport Canada has determined that it can reduce the size of its fleet, principally by eliminating the aircraft fleet at headquarters without compromising safety in any way. This is possible because most of the inspection work is carried out in the regions, and the work performed by headquarters inspectors does not require the use of aircraft. Implementing this proposal will involve the reduction of Transport Canada's aircraft fleet over a two-year period.

Although no workforce adjustment situation is anticipated for your members, we would like an opportunity to meet with you to discuss the impact of this decision. I would like to propose a briefing with you on Wednesday, April 28, 2010 at 11:00 in room 1234, Place de Ville, Tower C. Please note that representatives from other affected bargaining units have also been invited to this briefing. Furthermore, we would like to propose setting up a subsequent conference call with your executive committee to discuss further the impact of this decision. Timing of this conference call or meeting could be discussed at Wednesday’s meeting.

Again, I wish to reiterate that this initiative will set the foundation for a more efficient and effective program delivery while maintaining our commitment to the safety of the traveling public.

…

52 Mr. Slunder said this was the first time he heard of the sale of aircraft. The evidence indicates that this was the first notice that was given to the bargaining agent.

53 The meeting was held on April 29, 2010, and was chaired by Marc Grégoire, an assistant deputy minister, who advised that of the 39 aircraft used in support of the aviation programs, 15 would be sold, and that no aircraft would remain in Ottawa for members to fly. A recording and typed transcript of his remarks was put in evidence. He explained that the aircraft were primarily used to transport inspectors to conduct inspections at sites not easily or readily available via commercial means. Most of the inspection work and oversight was done through the regional offices, and the type of oversight work that was done in Ottawa did not require the use of aircraft. His remarks included the following:

…

In approximately one year from now, and I say approximately, because we have to be sensible for a variety of reasons as to an exact date, but a year from now, approximately, there will no longer be a requirement for fixed wing aircraft in headquarters and for the copter fleet that will follow the next year. The reason we are phasing out the copters after is that we don’t have yet the simulator to help maintain currency. That is not the case for fixed wing. For the fixed wing, we have had the Citation for quite a number of years and we will have an operational King Air simulator this summer with likely the first course with staff in October. The King Air simulator should be operational in June or July. So over the next two years, we will put on the market 15 aircraft, so the fleet will be reduced from 39 aircraft to 25 aircraft in total. So there will no longer be flying here in Ottawa and there will be a slight reduction, not a big one, but never the less [sic], a slight reduction of flying in the regions….

…

54 Essentially, all the bargaining agent members in Ottawa were to move to an alternate flying program. Mr. Grégoire said that Transport Canada and made the decision “a year ago” to sell the aircraft, based on data from a strategic study that was done in 2008 for Cabinet. He responded to the following question relating to the timing of the announcement, “So this was known beforehand. For at least a year in advance?” as follows:

Oh yes. I knew at the last budget. There is another reason for the delay. We felt pushed back to find other ways to achieve those savings. We had lots of pressure since last summer. When the last budget came out in March, there is no flexibility in that budget ….

55 Emails were put in evidence that confirm that the decision had been made by at least January 20, 2009. An email bearing that date between Mr. Preuss and the Director General of Aircraft Services discussed the messaging of the decision to sell the aircraft. The suggested response to the question, “How soon do you expect to sell Transport Canada aircraft?” was the following: “The sale of the aircraft will be done in a phased approach so as to not flood the aircraft market. This will allow for the ability to maximize the cash value for each aircraft. Is anticipated that all of the surplus aircraft will be sold within a three year period.”

56 Mr. Holbrook testified that on March 10, 2011, he received an email as one of the addressees on a distribution list of Transport Canada civil aviation pilots. It was from Martin Eley, Director General, Civil Aviation, and it was addressed to “All Aircraft Services and Civil Aviation Directorates Pilots.” It stated: “Subject: Outside activities of Aircraft Services and Civil Aviation Directorates Pilots and Approved Alternate Professional Aviation Currency Programs.” The relevant parts of the portion that concerned the approved Alternate PACPs read as follows:

…

Approved Alternate Professional Aviation Currency Programs

On May 4, 2010, Transport Canada announced the decision to reduce the size of the fleet of aircraft that is currently operated by the Aircraft Services Directorate (ASD). That announcement included information that the aircraft sales would begin over the course of the 2010/11 fiscal year. The bulk of aircraft in the National Capital Region (NCR) are either being sold or re-positioned to the regions. One KingAir and one Citation will be retained in the NCR to provide flying for both the ASD training pilots and the Engineering Test Pilots.

Flying ASD aircraft in the NCR will no longer be available for the majority of NCR pilots. As of April 1, 2011, NCR pilots who are currently participating in a Flying Program must transition to an alternate program.

…

[Emphasis in the original]

57 Mr. Holbrook testified that he concluded that his “Regular Flying Program” would be cancelled as the employer was getting rid of the aircraft, and without any say on his part, he would be assigned to an alternative program. He stated that the information that came to him was that the alternative program referred to did not follow the PACP that had become effective on April 1, 2007. However, there was no evidence as to what this information consisted of other than the documents that have been referred to. Specifically, while the employer clearly expressed its intent that only two aircraft would be based in Ottawa and that as a consequence, the CAIs and ETPs in Ottawa would not be able to maintain currency through a Regular Flying Program within the meaning of the PACP, it did not say it would not follow the PACP. The PACP contains a number of alternative programs that the Professional Aviation Currency Steering Committee approved, and there is no evidence that the reduction in the Ottawa-based aircraft would mean the alternative programs could not be used or would not be available for maintaining currency.

III. Summary of the arguments

A. For the bargaining agent

1. The policy grievance

58 The employer violated clause 47.07 of the collective agreement by requiring pilots working at its headquarters to participate in the PACP exclusively by simulator training, to the exclusion of actual flying experience.

59 Article 47 of the collective agreement established a contractual obligation that required access to aircraft at headquarters that would enable the CAIs and ETPs to gain flight experience.

60 The PACP was so important to the bargaining agent that it took from May 30, 2002, until April 1, 2007, to negotiate and agree to the new policy. It required a ratification vote by its membership before it would sign the new policy.

61 The bargaining agent made the employer well aware that it considered the Regular Flying Program an essential part of the PACP.

62 As part of the ratification process, at the bargaining agent’s invitation, Mr. Preuss spoke to its executive on February 3, 2006, and made representations that there was no plan to curtail the Regular Flying Program, including the assurance that in a “worst-case scenario” there would be a rotation on a 50-50 basis so that a CAI would spend a maximum of two years in an alternate program before being returned to a flying program for a minimum of two years.

63 Subsequently, and before the ratification vote, the employer repeated its commitment on an intranet posting, which included the following statement:

… [that the employer] should … in Headquarters, and in each Region, provide the resources and means to coordinate the program delivery service utilizing ASD aircraft as well as crew scheduling to maximize the utilization of the fleet and the equitable distribution of flying hours to pilots assigned to the RFP.

64 As a consequence of these representations, the then-chair of the bargaining agent wrote to the membership on March 2, 2007, explaining the history, process and contents of the new PACP. His letter contained the statement that one of the improvements negotiated was the following: “Guaranteed rotation if numbers of persons wanting an ASD 48 hour program (RFP) exceed the available flying slots (priority list).”

65 The employer called no evidence and in particular did not call Mr. Preuss to state that he did not make those assurances.

66 Therefore, the reduction in the number of aircraft and the accompanying decision that Ottawa-based CAIs and ETPs would not be able to maintain currency using a Regular Flying Program was a breach of clause 47.07 of the collective agreement and the PACP.

2. The complaint

67 There was no discussion or disclosure about the decision to sell and remove Ottawa-based aircraft, although the decision was made during the negotiating period, after notice to bargain had been given. This was a breach of the statutory duty to bargain in good faith, contrary to section 106 of the Act.

68 Substantial documentary evidence was introduced supporting Mr. Holbrook’s testimony, which showed that the bargaining agent has consistently made it clear to the employer that the Regular Flying Program is of fundamental importance to the membership. Flying is what they do, and its importance is seen in the classification standard.

69 The lack of disclosure also means the employer engaged in an unfair labour practice by ignoring its duty to consult with the bargaining agent when it introduced a change of fundamental importance. This amounted to interference with the administration of the bargaining agent and its representation of employees and was an unfair labour practice, contrary to paragraphs 186(1)(a) and 190(1)(b) of the Act. As authorities, it referred to United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Limited, [1980] OLRB Rep. April 577; and International Woodworkers of America, Local 2-69 v. Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. September 1411.

70 The bargaining agent also referred me to the following additional authorities: Professional Institute of the Public Service of Canada v. Treasury Board and Canada Revenue Agency, 2008 PSLRB 13; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; International Woodworkers of America Local 2-69 v. Consolidated Bathurst Packaging Ltd., [1984] OLRB Rep. March 422; Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 84; and Professional Institute of the Public Service of Canada v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 95.

B. For the employer

71 There is no factual foundation for either the complaint or the policy grievance. Both are based on an announcement of a plan.

72 It was announced in the letter of April 26, 2010, to Mr. Slunder, National Chair of the bargaining agent, from the director general of the employer’s Human Resources Directorate that cost-cutting measures were coming and that a determination had been made that the size of the fleet could be reduced, principally by eliminating aircraft at headquarters, without compromising safety in any way. The letter stated that this was possible because most of the inspection work is carried out in the regions, and the work performed by headquarters inspectors does not require the use of aircraft. It said that implementing the proposal would involve a reduction of Transport Canada’s aircraft fleet over a two-year period.

73 The complaint and the policy grievance were both filed in May 2010 and speak of the planned sale and dispersal of certain aircraft.

74 At the time of the hearing, there was evidence that two aircraft will still be based in Ottawa. There is no evidence that any of the aircraft in the fleet have been sold, except hearsay evidence of one witness that he had heard that one aircraft had been sold.

1. The policy grievance

75 Clause 47.05 of the collective agreement states that all changes shall be accomplished by means of mutual agreement. There was mutual agreement as the bargaining agent ratified the policy.

76 The policy sets out in detail how currency will be maintained. The key is that the employer has complete discretion as to who gets to fly aircraft and who maintains currency using an approved alternate program, which includes simulators.

2. The complaint of a failure to bargain in good faith

77 The duty to bargain in good faith is required by section 106 of the Act. Its purpose is to bring the parties to the table and get them to bargain. In this case, the parties did meet, bargain and enter into a collective agreement. The section refers to a situation where a party has no intention of reaching a bargain. This is a case of a party crying foul halfway through the term of a collective agreement because it found information that it did not like.

3. The unfair labour practice complaint

78 The employer had no obligation to provide disclosure during negotiations. For example, there is no duty to disclose financial information that could help a bargaining agent assess an employer’s ability to improve wages and benefits.

79 Therefore, it was not bargaining in bad faith; nor did the employer interfere with the bargaining agent’s ability to represent its members.

80 Paragraph 186(1)(a) of the Act states that an employer shall not “… participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization … .”

81 The Westinghouse Canada Limited case and the 1983 Consolidated Bathurst Packaging Ltd. decision cited by the bargaining agent that found that unfair labour practices occurred because of failures to disclose information were extreme cases involving withholding information that affected the future existence of the union local. In one case, a plant was relocated, and in the other, a plant was closing.

82 The employer referred me to the following authorities: Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311; Royal Oak Mines Inc.; Professional Institute of the Public Service of Canada v. Canadian Food Inspection Agency, 2008 PSLRB 50; Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2009 FCA 184; Professional Institute of the Public Service of Canada v. Treasury Board, 2009 PSLRB 102; Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2010 FCA 109; and International Association of Machinists and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Officers v. Correctional Service of Canada, 2006 PSLRB 46.

III. Reasons

A. The policy grievance

83 In the policy grievance, the bargaining agent claimed that the employer breached clause 47.04 of the collective agreement by requiring pilots working at its headquarters to participate in the PACP exclusively by simulator training, to the exclusion of actual flying experience.

84 No provision in the PACP states that the employer shall assign the CAIs and ETPs to a Regular Flying Program. Instead, section 3.1.1 requires the employer to make the assignment to a PACP, which “could be” a Regular Flying Program “… or an Alternate Professional Aviation Currency Program approved by the Professional Aviation Currency Steering Committee.”

85 Section 5.1.2 of the PACP states that “[a]ll CAIs are eligible for assignment to a Regular Flying Program …”, but it then gives the employer the right to determine whether an employee is to be assigned to a Regular Flying Program or an Alternate PACP. It concludes with the following statement: “… [a]ll ETPs shall be assigned to a flying program that is appropriate to their duties.”

86 To succeed with the policy grievance, the bargaining agent had to prove that the collective agreement was breached. Verbal or written assurances made before the collective agreement was signed are usable as aids to interpretation only in the case of an ambiguity. In particular, the bargaining agent referred to assurances that pilots who wished to maintain currency by flying would spend only a maximum of two years in an alternate program using simulators and would then be rotated into a Regular Flying Program for two years. It submitted that this was of fundamental importance to the bargaining agent. However, while the first paragraph of the agreements of May 30, 2002, and December 2, 2003, mention a two-year maximum, it was not put in the negotiated policy. The policy states nothing about such a guarantee and does not mention a rotation except in the context of evenly distributing flying time to pilots who are on a Regular Flying Program.

87 The closest thing in the signed documents to a commitment to maintain aircraft in Ottawa for use in the Regular Flying Program is found in a statement in the Professional Aviation Currency Policy Implementation Plan as follows:

…

The employer shall take into consideration the following factors when implementing the changes to the PACP:

…

6) To meet program delivery and safety requirements Transport Canada should:

…

c) in Headquarters, and in each Region, provide the resources and means to coordinate the program delivery service utilizing ASD aircraft as well as crew scheduling to maximize the utilization of the fleet and the equitable distribution of flying hours to pilots assigned to the RFP.

….

88 However, the introductory sentence uses the term “should” rather than “shall” or “must” and was meant to be part of how the initial transition to the new policy was to happen. The implementation plan came into effect on April 1, 2007, the same date that the policy came into effect. The policy, which was incorporated into the collective agreement signed on August 14, 2009, contains no such direction. Nothing in the policy directs the employer on the quantity or location of aircraft to be made available for use by the Regular Flying Program.

89 Section 5.2.3 of the PACP provides as follows if a CAI or an ETP is to be assigned to a Regular Flying Program:

5.2.3  … the type of aircraft to which the individual CAI or ETP will be flying shall be determined by the employer based on the experience and competence of the individual and operational requirements.

[Emphasis added]

90 Section 5.1.3 of the PACP states that “[n]otwithstanding Section 5.1.2 …”, the assignment to a Regular Flying Program will not be considered in the following situation:

…

d)  they are based in a geographic location that precludes the feasibility of assignment to a RFP.

91 Section 3.1.2 of the PACP states as follows:

3.1.2  The employer may from time to time change the Professional Aviation Currency Program to which a medically fit CAI or ETP is assigned.

This may result from changing job requirements or the availability of a regular ASD flying program….

92 Read as a whole, the language of the policy shows the intent to give the employer complete discretion to determine that a Regular Flying Program assignment will not be made because of operational requirements, including the non-availability of aircraft in a location.

93 Therefore, I conclude that reducing the number of aircraft based in Ottawa would not be a breach of the collective agreement. The contractual right was a right to be able to maintain currency and not a right to fly.

94 Aside from the contract contained in the collective agreement and the PACP, what is the relevance of the representations that the employer made? Estoppel was not mentioned in the bargaining agent’s argument, but it considerably emphasized the representations made before the PACP was signed. Estoppel is an equitable doctrine designed to protect a party to a legal contract that relies on a promise made by another party that is intended to affect the legal relations between them. A claim for estoppel must satisfy the following three conditions. 1) A party made a representation, either by words or by conduct. It is usually stated that it must be an unequivocal promise. 2) The representation was intended to be acted upon by the other party. 3) The other party did in fact rely on the representation.

95 No notes were taken when Mr. Preuss spoke to the bargaining agent executive in February 2006. Mr. Holbrook stated that it was done deliberately out of respect for Mr. Preuss so that he could speak freely about his thoughts. I also think that this is a strong indicator that the intent was that Mr. Preuss’s remarks were not intended to affect the legal relations between the parties. Rather, Mr. Preuss was giving his assessment of the employer’s intentions at that time. The representations were made with the expressed caveat that a review had taken place and that it was unknown but possible that significant budgetary changes could be in the future. There is no evidence that any such decisions had been made at the time Mr. Preuss spoke to the bargaining agent executive. Mr. Holbrook’s testimony was that Mr. Preuss essentially repeated what was in the intranet posting that followed. It addressed the fact that there could be expenditure reductions in the PACP and stated as follows:

…

… Current program funding levels have not demanded the assignment of pilots to APACPs; however, activities such as the Transport Canada Comprehensive Review and forecast expenditure reductions are likely to create a situation where employer assignment to APACPs will be more common….

…

96 Thus, I do not think that the statements in the document can be taken as being intended to be unequivocal promises, as they were clearly subject to future funding changes.

97 The only contractual obligations proven are those contained in article 47 of the collective agreement and in the PACP, and they do not provide the CAIs and ETPs with the right to fly but only the right to maintain currency.

98 Additionally, all the evidence disclosed was that there was a plan. Two aircraft were still based in Ottawa. There was no evidence that the reduction to two aircraft had any effect on the PACPs. There was no evidence that the Alternate PACP would not be followed. Section 3.1.5 of the PACP provides that any CAI or ETP who has been assigned to an Alternate PACP and believes that the assignment is not consistent with the criteria required to be used by the employer in making assignments could apply to the Joint 50/50 Steering Committee to have the decision reviewed. There was no evidence that any such applications had been made.

B. The complaint

99 The bargaining agent also made a complaint that the employer had breached its duty to bargain in good faith and had engaged in an unfair labour practice, contrary respectively to section 106 and paragraph 190(1)(g) of the Act.

100 Subsection 190(1) of the Act provides that the Public Service Labour Relations Board (“the Board”) must examine an inquiry into any complaint made to it that:

…

(b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

…

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

101 With respect to the duty to bargain in good faith, section 106 reads as follows:

106. After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

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

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

102 The bargaining agent stated that the fact that a collective agreement was negotiated and that section 106 of the Act refers to “to bargain” is not a complete answer. It submitted that the fact that the employer withheld fundamentally important information during bargaining meant that there was a failure to bargain in good faith, even though a collective agreement was signed. As authorities, it cited Westinghouse Canada Limited and the 1983 Consolidated Bathurst Packing Ltd. decision.

103 Westinghouse Canada Limited was a 1980 decision of the Ontario Labour Relations Board. The complaint before it arose out of a decision by an employer to relocate its switchgear division from Hamilton, Ontario, to a number of locations outside Hamilton. One of the grounds in the complaint was the allegation that the company’s failure to inform the union during the course of collective bargaining of its plan to relocate its operations constituted a failure to bargain in good faith. In discussing the duty to bargain in good faith imposed by section 14 of the Ontario Labour Relations Act, that board stated as follows, at paragraphs 39 to 41:

39.     … Having regard to the importance of the exercise, the requirement for full and open discussion, the scope of matters open to bargaining and the statutory framework which binds the parties to the terms of their agreement for its full term, can there be any doubt that the section 14 duty requires an employer to respond honestly when asked in bargaining if he is contemplating initiatives of the type which have a real likelihood of significantly impacting on the bargaining unit. Similarly, can there be any doubt that an employer is under a section 14 obligation to reveal to the union on his own initiative those decisions already made which may have a major impact on the bargaining unit. Without this information a trade union is effectively put in the dark. The union cannot realistically assess its priorities or formulate a meaningful bargaining response to matters of fundamental importance of the employees it represents. Failure to inform in these circumstances may properly be characterized as an attempt to secure the agreement of the trade union for a fixed term on the basis of a misrepresentation in respect of matters which could fundamentally alter the content of the bargain.

40.     The more difficult question is whether there is an obligation on an employer to reveal on his own initiative plans which are not finalized at the time of bargaining but which, if implemented during the term of the collective agreement, would have a significant impact on the economic lives of bargaining unit employees. On one side the Board must be concerned with potential distortion of the bargaining process by the imposition of an obligation which requires the employer to advise the union on his own initiative of plans which may never become decisions. On the other side, however, the Board must be sensitive to the purpose of the collective bargaining process and to the role of the trade union as exclusive bargaining representative of the employees who might be affected if these plans resulted in decisions being made by the company.

41.     The competitive nature of our economy and the ongoing requirement of competent management to be responsive to the forces at play in the marketplace result in ongoing management consideration of a spectrum of initiatives which may impact on the bargaining unit. More often than not, however, these considerations do not manifest themselves in hard decisions. For one reason or another, plans are often discarded in the conceptual stage or are later abandoned because of changing environmental factors. The company's initiation of an open-ended discussion of such imprecise matters at the bargaining table could have serious industrial relations consequences. The employer would be required to decide in every bargaining situation at what point in his planning process he must make an announcement to the trade union in order to comply with section 14. Because the announcement would be employer initiated and because plans are often not transformed into decisions, the possibility of the union viewing the employer's announcement as a threat (with attendant litigation) would be created. If not seen as a threat the possibility of employee overreaction to a company initiated announcement would exist. A company initiated announcement, as distinct from a company response to a union inquiry may carry with it an unjustified perception of certainty. The collective bargaining process thrusts the parties into a delicate and often difficult interface. Given the requirement upon the company to respond honestly at the bargaining table to union inquiries with respect to company plans which may have a significant impact on the bargaining unit, the effect of requiring the employer to initiate discussion on matters which are not yet decided within his organization would be of marginal benefit to the trade union and could serve to distort the bargaining process and create the potential for additional litigation between the parties. The section 14 duty, therefore, does not require an employer to reveal on his own initiative plans which have not become at least de facto decisions.

104 That board went on at paragraph 42 to hold that the company had not made a “hard decision” to relocate during the course of bargaining, which would have required it to reveal its decision to the union.

105 Consolidated Bathurst Packaging Ltd. is a 1983 decision of the same Ontario Labour Relations Board. In that case, a plant was closing. It cited with approval the excerpt from paragraph 39 of the Westinghouse Canada Limited decision. The board concluded that the plant closing was “concrete and highly probable” during collective bargaining. Therefore, the respondent in that case had a duty to make an unsolicited disclosure. The board commented as follows at paragraph 50:

50. On the other hand, plans and decisions to close a plant can effectively extinguish a bargaining unit and the relevance of the usual terms of a collective agreement. In this context, where a decision to close is announced “on the heels” of the signing a collective agreement, the timing of such a significant event may raise a rebuttable presumption that the decision-making was sufficiently ripe during bargaining to have required disclosure or that it was intentionally delayed until the completion of bargaining. It can be persuasively argue that the more fundamental the decision on the workplace, the less likely this Board should be willing to accept fine distinctions in timing between “proposals” and “decisions” at face value and particularly when strong confirmatory evidence that the decision-making was not manipulated is lacking. This approach is sensitive to the positive incentive not to disclose now built into our system, and the potential for manipulation. Indeed, a strong argument can be made that the de facto decision doctrine should be expanded to include “highly probable decisions” or “effective recommendations” when so fundamental an issue as a plant closing is at stake. Having regard to the facts in each case the failure to disclose such matters may also be tantamount to a misrepresentation. We might also point out that there are decisions taken because of costs which really ought not to be made until the underlying problem is discussed with the union to see if adjustments can be made and the decision avoided. However, for the reasons discussed above, we are not willing to adopt the Ozark Trailers test of “thinking seriously” for unsolicited disclosures as urged upon us by the complainant. The failure to reveal such “possibilities” as a general matter is not tantamount to a misrepresentation and therefore lacks the bad faith rationale developed in Westinghouse justifying undistorted disclosure. The purpose of such information would be investigative and to facilitate the rational discussion purpose of the bargaining duty. Accordingly, the purpose of the information and the difficulties detailed above with unsolicited disclosure militate against any substantial expansion of the unsolicited disclosure obligation as elaborated to date. The interests of employees are real but the Board is not ignoring these interests by requiring a questioning approach to disclosure as a general matter. The position urged upon us by the complainant has too much potential for “greater heat than light” at the bargaining table. There is already enough uncertainty over precisely how significant and what nature a decision must be to trigger the unsolicited disclosure duty. Unsolicited disclosure must be understood to be exceptional and centered essentially on a bad faith rationale.

106  With respect to the allegation in this case that an unfair labour practice occurred, section 185 of the Act states that “unfair labour practice” means, among other things, anything prohibited by subsection 186(1).

107 Paragraph 186(1)(a) of the Act states that an employer shall not participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization.

108 The bargaining agent submitted that the employer interfered with its representation of its members in this case, because without disclosure, it was unable to realistically assess its priorities and formulate a meaningful bargaining response to a matter of fundamental importance.

109 Both Westinghouse Canada Limited and Consolidated Bathurst Packing Ltd. considered whether there was a failure to bargain in good faith. However, they also indicated that failing to advise a union of an imminent plant closing or significant relocation was also an unfair labour practice as it interfered with the union’s representation of employees. In essence, the second case stated that withholding evidence of the closure put the union in that case in the position of being unable to bargain to protect the employees from the results of the closure.

110 In the present case, the bargaining agent also cited Professional Institute of the Public Service of Canada v. Treasury Board and Canada Revenue Agency as an example of a failure to disclose information being held as a breach of paragraph 186(1)(a) of the Act. In that case, the Board held that the employer’s denial of the bargaining agent’s request for employee names and contact information interfered with the bargaining agent’s ability to represent its members. The Board remarked that the facts showed both a breach of the duty to bargain in good faith and of paragraph 186(1)(a).

111 Both Westinghouse Canada Limited and Consolidated Bathurst Packaging Ltd. acknowledged in their rationales that they were extreme cases. One concerned information about a plant relocation and the other about a plant closure. The second case acknowledged that unsolicited disclosure “… must be understood to be exceptional … .” For a benefit such as the right to fly to be of fundamental importance, as claimed by the bargaining agent, one would have expected it to have been clearly expressed as such in either the collective agreement or the policy. With a plant closure, many employees stand to lose wages and benefits that are clearly expressed in a collective agreement. In the present case, there was no evidence that any of the employees on whose behalf the policy grievance was filed lose their employment. Unlike the plant closure and relocation, which would obviously have resulted in a loss of negotiated benefits, there was no such loss in the present case. Only a minority of the CAIs and ETPs who work in the Ottawa headquarters and who want to maintain currency using the Regular Flying Program are affected.

112 Therefore, I find that the employer was under no duty to disclose to the bargaining agent that it had decided to sell a substantial percentage of the department’s aircraft and to reduce the number of aircraft based in Ottawa. The employees had no contractual right to fly, only the right to maintain currency, which was not affected by the announcement.

113 For all of the above reasons, the Board and I make the following order:

IV. Order

114 The policy grievance and the complaint are dismissed.

June13, 2014.

William H. Kydd,
a panel of the Public Service Labour Relations Board
and adjudicator