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UNFAIR LABOUR PRACTICES - By employer - Bargaining in bad faith

Thursday, August 19, 2021 @ 5:27 AM  


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Appeal by the Society of United Professionals from the dismissal of its application for judicial review of decisions of the Labour Relations Board. The Society applied to the Board alleging New Horizon violated ss. 17 and 70 of the Labour Relations Act by failing to negotiate in good faith and by interfering with the Society’s representation of employees in the bargaining unit due to New Horizon’s refusal to disclose the Master Services Agreement (MSA), the contract governing New Horizon’s relationship with Ontario Power Generation (OPG). The Society was not a party to the MSA, and there was no reference to it in the collective bargaining agreement between New Horizon and the Society. The Board rejected the allegation that New Horizon interfered with the Society’s representation of its members and concluded that the Society’s application under s. 17 was premature. The Board concluded that the MSA did not fall within the parameters of information that a union could properly seek. The Board subsequently determined New Horizon violated the duty in s. 17 of the Act to bargain in good faith and ordered partial disclosure of the MSA. In a third decision, the Board rejected the Society’s request to order disclosure of one further provision of the MSA. The Divisional Court concluded that the Board’s decisions were consistent with the existing jurisprudence and justifiable on the facts of the case.

HELD: Appeal dismissed. The Board’s decision with respect to s. 70 was not unreasonable. The Board explained why, in the circumstances, the refusal to provide the MSA would not constitute interference with the Society’s ability to represent bargaining unit members. Its explanation was internally coherent and rational. The Board essentially concluded that the unredacted MSA was not necessary for the Society to carry out its representational duties. The information the Society sought through an unredacted MSA was, at best, information ancillary to the Society’s representation of its members. The Board’s findings that the MSA was a commercial services contract and that the information sought was, at best, ancillary to the Society’s representation of its members, were not unreasonable. The Board was not required to engage in a balancing of the competing interests. The Board’s adjournment of the Society’s s. 17 application was reasonable. The Board’s conclusion that the Society’s application was premature because no actual bargaining proposals were made was reasonable, particularly considering the evidence that New Horizon’s position would likely be affected by the ongoing discussions with OPG. The fact that the parties were on their way to interest arbitration when the issue returned before the Board did not render its earlier adjournment decision unreasonable. The Board’s reasons for ordering only limited disclosure of the MSA provision at issue in the negotiations were adequate. The Board reviewed the applicable legal principles, considered New Horizon’s bargaining agenda, and explained that, in light of New Horizon’s bargaining positions, the Society should have access only to certain unredacted portions of the MSA.

Society of United Professionals v. New Horizon System Solutions, [2021] O.J. No. 3792, Ontario Court of Appeal, P.S. Rouleau, A. Hoy and K.M. van Rensburg JJ.A., July 12, 2021. Digest No. TLD-August162021008