Ontario Labour Relations Board
[1987] OLRB Rep. November 1368
0501-87-U Southern Ontario Newspaper Guild, Local 87 The Newspaper Guild (AFL-CIO-CLC), Complainant v. The Globe and Mail, Division of Canadian Newspapers Company Limited, Respondent
BEFORE: G. T Surdykowski, Vice-Chair, and Board Members J. Murray and C. A. Ballentine.
APPEARANCES: Stephen Krashinsky, Margaret Leighton, Paul Pellettier and Marian Stinson for the applicant; Harvey A. Beresford and Diane Barsoski for the respondent.
DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER C. A. BALLENTINE; November 9, 1987
In this complaint under section 89 of the Labour Relations Act the Southern Ontario Newspaper Guild, Local 87 The Newspaper Guild (AFL-CIO-CLC), hereinafter the ("Guild") alleged that the Globe and Mail, Division of Canadian Newspapers Company Limited (hereinafter "The Globe") had, in the course of bargaining for a new collective agreement between the parties, breached its obligations under section 15 of the Labour Relations Act by refusing to provide, as requested, the salary being paid to each employee in the bargaining units represented by the Guild. The majority of the Board ruled orally on September 24, 1987 (which decision issued in written form on September 28, 1987) that the Globe had breached its obligation, under section 15 of the Act, to bargain in good faith and make every reasonable effort to make a collective agreement by failing to provide the information requested by the Guild and directed the Globe to provide that information. The Board's reasons now follow.
The Guild submitted that it had a right to the salary information requested for each bargaining unit employee and that it required this information in order to enable it to properly fulfill its function and duty as the exclusive bargaining agent for those employees. In its evidence and representations the Globe asserted that the information requested by the Guild is confidential in the sense that it is a matter between the individual employee and the Globe, and in the sense that it is important such information be kept from other newspapers because of the competition in the newspaper industry in Toronto. The Globe's primary position, however, was that in the circumstances of the collective bargaining relationship between the parties, namely that they had regularly and consistently bargained the issue, the Guild was not entitled to the information sought. The Globe asserted that to now require it to provide that information to the Guild would be to rend asunder the collective bargaining relationship between the parties and would be unfair to the Globe. The Globe further asserted that the Guild does not really need the information requested because its concerns could be addressed in other ways on the basis of information already available to it.
A collective bargaining relationship has existed between the parties for over thirty years. As is common in the newspaper industry, the wage structure of the various collective agreements that have existed between the parties up to June 30, 1987 is one of minimum rates for each classification. For some classifications there is a scale of "minimums" based upon an experience rating. The Globe has been entitled to pay salaries above the minimums stipulated in the various agreement in recognition of an individual employee's performance. The most recently expired agreements reveal that the Globe has previously agreed to provide the Guild with certain information personal to the employees covered by them. However, the Guild has, over the years, consistently requested and the Globe has consistently refused to provide the individual salaries paid to the employees in the bargaining units. In that regard, we were not satisfied that, on the evidence before the Board, there is any practice of either providing or not providing such information in the newspaper industry in Ontario. Finally, we note that in June, 1985, during the negotiations for the collective agreements that expired on June 30, 1987, the Guild filed a complaint under section 89 of the Act alleging a breach of section 15 with respect to the same issue that is before the Board in this proceeding. That complaint was settled without the Guild obtaining the information but without "prejudice or precedent" to continuing its demands for the information.
Section 15 of the Labour Relations Act imposes an obligation on the parties to bargain in good faith and make every reasonable effort to make a collective agreement. It has two primary purposes: to reinforce the obligation of the employer to recognize and deal with the trade union as the exclusive bargaining agent of the employees concerned; and, to encourage rational, informed discussion of the real issues between the parties and thereby reduce the potential for avoidable industrial conflict.
In proceedings involving section 15, the Board's concern is with the process of collective bargaining. The content of bargaining is relevant only insofar as it sheds light on the process. Section 15 is neither a substitute for bargaining nor a remedy for an imbalance in bargaining power. However, the Board has concluded that the process of collective bargaining that is contemplated by section 15 requires the parties to disclose to each other certain kinds of information relevant to the bargaining process (see, for example, Canadian Industries Limited, [1976] OLRB Rep. May 199; Westinghouse Canada Limited, [1980] OLRB Rep. April 577; Sunnycrest Nursing Homes Limited, [1982] OLRB Rep. Feb. 261; Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. Sept. 1411; Royal Conservatory of Music, [1985] OLRB Rep. Nov. 1652). It is now well settled that a trade union is entitled to the names and wage rates of employees in the bargaining unit for which it must negotiate (see, DeVilbiss (Canada) Limited, [1976] OLRB Rep. Mar. 49; Radio Shack, [1979] OLRB Rep. Dec. 1220 (judicial review denied) and Re Tandy Electronics Ltd., and United Steelworkers of America et al. 1980 CanLII 1738 (ON HCJ), [1980] 30 OR. (2d) 29 Ont. Div. Ct., leave to appeal to Ontario Court of Appeal refused March 10,1980); Globe Spring and Cushion Co. Ltd., [1982] OLRB Rep. Sept. 1303; North West Merchants Ltd., [1983] OLRB Rep. July 1138; Consolidated Bathurst Packaging Ltd., supra; The Windsor Star (1983), OLRB Rep. Dec. 2147; The Ontario Cancer Treatment and Research Foundation (Thunder Bay Clinic), [1985] OLRB Rep. May 705; Forintek Canada Corp. [1986] OLRB Rep. April. 453). Where a trade union is the exclusive bargaining agent for a group of employees, there is no justification for the notion that individual wage rates are confidential between the employees and the employer. As the Board noted in Forintek Canada Corp, supra at paragraph 33:
A belief that some number of bargaining unit employees did not wish the requested information disclosed to the union is no answer to a complaint that the failure to disclose it violates section 15 of the Act, any more than a belief that some number of employees did not wish the union to represent them would justify a refusal to bargain with a union which is entitled by law to act as exclusive bargaining agent for a bargaining unit which included those employees. The union's right to and need for the requested information were and are concomitants of the rights and obligations which flow from its status as exclusive bargaining agent, a status which continues until its bargaining rights are abandoned by the trade union or terminated by vote of a majority of employees in the bargaining unit. Although the union has not made a separate complaint about the past survey on which the employer relied during bargaining when it refused to provide requested information, we are bound to observe that it is quite inconsistent with recognition of a trade union as exclusive bargaining agent of all employees in a bargaining unit for the employer to have asked those employees individually (or collectively) whether they approved of the employer's giving information about their salaries to their bargaining agent. The respondent's demand for individual written authorizations was equally inconsistent with its obligation to recognize the union as exclusive bargaining agent, and neither the union's delay in providing nor its attempts to obtain such authorizations can in any way excuse the respondents' conduct. The fact that Forintek had refused to provide requested particulars of existing terns and conditions of employment during the bargaining which led to previous collective agreements without its refusal then becoming the subject matter of an unfair labour practice complaint is no answer to this complaint that its refusal to do so during these negotiations violated section 15 of the Act.
Nor, in our view, does any employer interest in keeping the wages it pays to its employees a secret outweigh the trade union's interest or right to that information for employees for whom it has the right and obligation to act as bargaining agent. Further, whether or not a trade union actually requires such information in order to fulfill its functions as bargaining agent is not for an employer to decide. Prima facie, it is for the trade union, not the employer, to assess for itself what kind and how much information it requires in order to perform its functions. The mere fact that the employer disagrees with that assessment is not sufficient to justify a refusal to provide information that a trade union requests for collective bargaining purposes.
Furthermore, the mere fact that the matter had previously been the subject of bargaining between the parties, does not, by itself, in our view, circumscribe a trade union's right to such information. Although such matters can be the subject of bargaining, they cannot be bargained to impasse and made the subject matter of a strike or lockout. Accordingly, a trade union does not waive its right to such information merely because it has bargained with respect to it. To conclude otherwise would unduly interfere in the collective bargaining process, a process which is the most appropriate forum for resolving disagreements between trade unions and employers and one which is best left to the parties. It would also be contrary to the purposes of and policy considerations underlying section 15. Finally, even if bargaining with respect to a matter could by itself amount to a waiver, and in our view it cannot, any such wavier was terminated in this case by the filing and without prejudice settlement of a similar complaint by the Guild in the round of bargaining prior to this one.
Accordingly, we made the finding and gave the direction indicated in paragraph 1 herein. In our view, the circumstances were such that no further or other relief was merited or necessary.
DECISION OF BOARD MEMBER J. MURRAY;
As indicated in the Board's oral ruling, subsequently reduced to writing, I originally disagreed with the majority. Upon further reflection however, I find that I agree with the decision and reasons of the majority.