[1985] OLRB Rep. May 705
2925-84-U Canadian Union of Public Employees and its Local 3020, Complainant, v. The Ontario Cancer Treatment and Research Foundation (Thunder Bay Clinic), Respondent
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members A. Grant and W. F. Rutherford.
APPEARANCES: Alex Muselius, Tim Zaroski, Sandie Thomson and Arlene Rabideau for the complainant; Murray Levis and Margaret Ryan for the respondent.
DECISION OF THE BOARD; May 10, 1985
In a decision dated March 29, 1985 in this matter, the Board wrote as follows:
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that it has been dealt with by the respondent contrary to the provisions of section 15 of the Act.
For reasons which will issue at a later date, the Board hereby finds and declares that the respondent has contravened section 15 of the Act by refusing to provide the following information to the complainant, and the Board, in the exercise of its remedial discretion under section 89 of the Act, hereby directs that the respondent provide the following information to the complainant forthwith:
(1) a list of all the employees in the bargaining unit as of March 31, 1984 (the expiry date of the most recent collective agreement between the parties), specifying the following information for each employee: rate of pay, classification, employment status (regular full-time, regular part-time, casual, interim replacement, etc.), and total service credit for vacation entitlement purposes; and
(2) the respondent's benefit expenditures for the year ending March 31, 1984 for each benefit provided to employees (including O.H.I.P., semi-private hospitalization
insurance, extended health care plan, group life insurance, pension plan, dental plan, and vision care plan).
The purpose of this decision is to provide the Board's reasons for that decision.
- At the hearing of this matter on March 25, 1985 in Thunder Bay, a number of exhibits were filed with the Board on the agreement of the parties. The parties also agreed upon the following facts:
(1) Exhibit #1 (a collective agreement signed on July 25, 1982), as extended by Exhibit #2 (an addendum effective from April 1, 1983 to March 31, 1984), is the collective agreement which the complainant is seeking to renew, with amendments, through the negotiations which form the subject matter of this complaint.
(2) Notice to bargain was mailed to the respondent by the complainant on January 25, 1984.
(3) The parties met in negotiations on April 2 and 3, 1984, where, among other things, the parties reviewed the complainant's contract proposals (Exhibit #5). The complainant requested basic costing information from the respondent. The respondent's representatives stated that they would not supply the information requested. With respect to the monetary package, they also indicated that it was the respondent's preference to follow the settlement of the host hospital (in this case, the Port Arthur General Hospital), or to settle at a total compensation package of 5% in accordance with the provincial guidelines under the Public Sector Prices and Compensation Review Act, 1983, S.O. 1983, c. 70.
(4) July 25, 1984 was the next negotiating session. The parties met on that day with the assistance of a Conciliation Officer. (By letter dated June 13, 1984 (Exhibit #6), the Deputy Minister of Labour advised the parties that the Minister had appointed Mr. B. Janisse as Conciliation Officer to confer with the parties and to endeavour to effect a collective agreement between them.) At that session, among other things, the respondent's representatives again stated their preference to wait for the host hospital settlement, or to settle for a compensation package of 5% in keeping with the provincial guidelines. At that meeting, the complainant again requested basic costing information and the respondent's representatives indicated that they would not provide it.
(5) By letter dated August 14, 1984, the Minister of Labour confirmed that the parties were unable to effect a collective agreement.
(6) By letter dated September 17, 1984, the complainant confirmed its rejection of the respondent's proposal, named its nominee to a board of interest arbitration, and made a written request for basic costing information.
(7) On October 15, 1984, Alex Muselius, the complainant's representative, wrote as follows to Dr. J. Kotalik, the Director of the respondent's Thunder Bay Clinic:
This will confirm our verbal requests made during negotiations with the employer representatives. The Union hereby requests that the Employer provide a list of all bargaining unit employees indicating the following information for each person covered by the terms of the collective agreement:
Current rate of pay actually being paid,
Classification to which employee is currently assigned,
Current employment status (eg. — Regular Full-time, Regular Part-time, Casual, Interim Replacement, etc.,).
Please note that this request is made pursuant to Section 15 of the Ontario Labour Relations Act and that the Union requires this information as soon as possible so that it may adequately prepare for the Interest Arbitration hearing as required by the Hospital Disputes Arbitration Act.
Additionally, because of the employer's reliance on the terms of Bill Ill in justifying its monetary position, the Union requests an itemized account of the employer's actual annual cost as at March 31, 1984 for all compensation items (wages, medical benefits, etc.) paid to or on behalf of all bargaining unit employees.
Your co-operation in providing this information at the very earliest opportunity will be much appreciated.
(8) By letter of November 9, 1984, the complainant again made a written request for the aforementioned information and advised that it intended to seek an order of compliance from the Ontario Labour Relations Board if the information was not given to the complainant.
(9) By letter of November 23, 1984 (Exhibit #7) Howard D. Brown, the chairman of the arbitration board, confirmed that an interest arbitration hearing would be held on April 10, 1985 in Thunder Bay.
(10) On January 21, 1985, Mr. Muselius telephoned Murray Levis, the respondent's Personnel Officer, and again requested the aforementioned information. The requested information was again denied.
(11) On January 29, 1985, the complainant filed the instant section 89 complaint with the Board.
(12) On February 12, 1985, the respondent provided the complainant with a written settlement proposal (Exhibit #10B). In its response dated February 25, 1985 (Exhibit #10A), Mr. Muselius advised Mr. Levis, without prejudice to the assertions made in its section 89 complaint, that the complainant's bargaining committee would be happy to meet with the respondent's bargaining committee at any mutually convenient time to resume negotiations. In that letter, Mr. Muselius repeated the complainant's request that the respondent supply it with a list of all bargaining unit employees showing name, classification, rate of pay, employment status, seniority credits, and an itemized account of all compensation items (wages, benefits, etc.) paid annually on behalf of bargaining unit employees as at the expiry date of the collective agreement (March 31, 1984).
(13) On March 19, 1985, the parties met in negotiations and the respondent at that time tendered a written settlement proposal (Exhibit #12).
- In support of his contention that the respondent contravened section 15 of the Labour Relations Act by refusing to provide the requested information, Mr. Muselius submitted that the complainant needed that information, including the cost of the respondent's various benefit plans for bargaining unit employees, in order to be in a position to properly evaluate the respondent's offer of a total compensation package of 5 % in accordance with the provincial guidelines, and in order to discharge its duty of fair representation under section 68 of the Act. It was his position that meaningful negotiations could not take place without such information as the complainant would, in effect, be negotiating in the dark.
He also noted that any confidentiality which might otherwise attach to such information has been removed, vis-a-vis the complainant, by the fact that the complainant will ultimately be entitled to obtain it from the Inflation Restraint Board (the IRB). In this regard, he drew our attention to the following passage from page 5 of the IRB's Guide to the Reporting of Group Compensation Changes under the Public Sector Prices and Compensation Review Act (Exhibit #14A):
All information filed with the [IRBI by an administrator relating to the compensation of individuals or groups will be available to those parties directly affected but treated as confidential otherwise.
In his submissions on behalf of the respondent, Mr. Levis contended that section 15 does not provide the basis for a flow of information of the type requested by the complainant. He also submitted that the information requested by the complainant in its section 89 complaint was considerably broader than the information requested by the complainant during negotiations prior to the complaint. Mr. Levis told the Board that although the respondent had put forward during negotiations the two positions described above, it was always the respondent's preference to reach a settlement which paralleled that of the host hospital. (He also expressed the view that the employees in the bargaining unit should be entitled to such a settlement, even if it exceeded the provincial guidelines.) It was his position that the availability to the complainant of the information filed with the IRB by the respondent is irrelevant to the present complaint because the form containing that information is completed only after a settlement has been ratified. Although Mr. Levis questioned the relevance of the events which occurred after the filing of the complaint (as set forth in paragraphs 12 and 13 of the agreed statement of facts), he confirmed their accuracy and submitted that they also demonstrated that the respondent has not reneged on its original proposals and has continued to bargain in good faith and make every reasonable effort to make a collective agreement.
It is well established in the Board's jurisprudence that the employer's section 15 bargaining duty includes an obligation to comply with a request (by a union which holds bargaining rights for its employees) for information concerning matters such as existing wage rates and classifications. As indicated by the Board in DeVilbiss (Canada) Ltd., [1976] OLRB Rep. March 49, at paragraph 15, one of the principal functions of the duty described in section 15 of the Act is to foster rational, informed discussion. In that case, at its first bargaining session with the employer, the complainant trade union asked to be provided with the existing wage rates and classifications of the bargaining unit employees. In finding the employer's refusal to provide that information to be a breach of what is now section 15 of the Act, the Board wrote (at paragraph 16):
Of additional concern is the respondent's failure to respond to the complainant's request at this first meeting for existing wage and classification information. Particularly in first agreement situations, it is little wonder that a complainant would have an incomplete monetary demand until it fully appreciated the current rate of wages paid by a respondent and the detailed nature of its job structure. Rational and informed discussion cannot easily take place until this information is provided to a trade union and thus this aspect of the duty supports its production. As a general matter of policy, if parties are to engage in economic conflict their differences ought to be real and well-defined. It is patently silly to have a trade union in the dark with respect to the fairness of an employer's offer because it has insufficient information to appreciate fully the offer's significance to those in the bargaining unit. Moreover, a trade union has a duty to all of the employees in the bargaining unit and thus has to be concerned, in a large measure, with equality of treatment. (For the American experience in this area see J. H. Allison & Co. (1946) 70 NLRB 377; Whittin Machine Works (1954), 217 F. 2d 593 (4th Cir.); Aluminium Ore Co. (1942), 131 F. Cir. [sic]; Yanman & Erbe Manufacturing Co. (1951) 181 F. 2d 947 (2nd Cir.); Truitt Manufacturing Co. (1954) 110 NLRB 856; and see generally Bortosic and Hartley, [The Employer's Duty to Supply Information to the Union: A Study of Interplay and Judicial Rationalization (1972), 58 Cornell L. Rev. 23].) Further, in the facts at hand, we have no doubt, when the totality of the respondent's conduct is considered, that the 'bad faith' aspect of the duty also effectively characterizes the respondent's failure in this regard. But, as noted above, a finding of bad faith is not a prerequisite to a finding that section 14 [now section 15] has been violated.
[emphasis added]
See also The Windsor Star, [1983] OLRB Rep. Dec. 2147; Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138; and Fruehauf Trailer Co. of Canada Ltd., [1975] OLRB Rep. Jan. 77. Although requests for such information most frequently arise in first agreement situations, the obligation to provide information necessary for the appraisal of an employer's proposal is not limited to such situations. See, for example, Globe Spring & Cushion Co. Ltd., [1982] OLRB Rep. Sept. 1303, in which the Board, after quoting the passage from the De Vilbiss case set forth above, wrote as follows (in paragraph 19):
Although [the DeVilbiss] case involved a demand for wage information at the outset of collective bargaining in a first agreement situation, production of such data may also be required in other circumstances. As observed by the British Columbia Labour Relations Board in Noranda Metal Industries Limited, [1975] 1 Can. LRBR 145, at 162, [o]ne would hardly say that an employer who deliberately withheld factual data which a union needed to intelligently appraise a proposal on the bargaining table was making 'every reasonable effort to conclude a collective agreement'.
In the instant case, each of the employers' offers with respect to wage increases has been formulated as a specified percentage increase over existing rates. Thus, it appears that the Union will not be in a position to accurately appraise the actual value of those offers without knowing what the employees' existing rates actually are.
Accordingly, the majority hereby confirms its earlier finding that the respondents contravened section 15 of the Act in the circumstances of this case by refusing to disclose to the Union the actual wage rates (including piecework rates) which their respective bargaining unit employees were receiving prior to the strike.
Similarly, in the circumstances of the present case, it is evident that the complainant will not be in a position to meaningfully appraise the respondent's proposal of a total compensation package of 5% in accordance with the provincial guidelines without the information requested in its letter of October 15, 1984. The respondent did not dispute the complainant's contention that the 5% increase envisioned by the provincial guidelines is calculated on the basis of total compensation including salaries, wages, benefits and perquisites. Under the circumstances, we are unanimously of the view that the respondent is entitled to the information specified in sub-paragraphs (1) and (2) of paragraph 2 of our decision dated March 29, 1985 in this matter, in order to meaningfully assess the value of the respondent's proposal. As the Board stated in De Vilbiss, supra, [i]t is patently silly to have a trade union 'in the dark' with respect to the fairness of an employer's offer because it has insufficient information to appreciate fully the offer's significance to those in the bargaining unit. (This approach is also supported by the jurisprudence of the National Labour Relations Board: see, for example, Phelps Dodge Copper Products Corp. (1952), 31 LRRM 1072; John S. Swift Co. (1959), 44 LRRM 1388; Sylvania Electric Products, Inc. (1960), 46 LRRM 1227; Sylvania Electric Products, Inc. (1965), 60 LRRM 1179; Cone Mills Corp. (1968), 67 LRRM 1241; International Association of Machinists and Aerospace Workers, AFL-CIO and Franklin W Nix and JAM Representatives Association (1968), 172 NLRB 2086; and Borden Inc. (1978), 98 LRRM 1098.) The undesirability of that situation is not reduced or eliminated by the fact that a bargaining impasse between the present parties in respect of the bargaining unit in question will be resolved by interest arbitration rather than by resort to economic sanctions. The fact remains that the provision of such information is essential to a meaningful and intelligent assessment of the employer's offer.
The complainant is not, however, entitled to all of the information which it requested at the hearing of this matter, as its requests at the hearing included information which had not been requested from the respondent prior to the filing of the present complaint. Thus, our order of March 29, 1985 was limited to necessary information which the complainant had requested from the respondent prior to filing the instant complaint, and did not include information which had not been so requested, such as bereavement leave and sick leave usage rates, and the Amethyst House sleep over usage rate.
For the foregoing reasons, the Board hereby confirms its decision of March 29, 1985 in this matter, and the order contained in that decision.