Southern Ontario Newspaper Guild v. Maclean Hunter Canadian Publishing, 1993 CanLII 5415

Southern Ontario Newspaper Guild v. Maclean Hunter Canadian Publishing

0355-92 Southern Ontario Newspaper Guild, Applicant v. Maclean Hunter Canadian Publishing, a division of Maclean Hunter Limited, Respondent 0412-93 Maclean Hunter Canadian Publishing, a division of Maclean Hunter Limited, Applicant v. Southern Ontario Newspaper Guild, Respondent

Before: Mary Ellen Cummings, Vice-Chair; Susan Genge and Charles Taccone, Members

Appearances: Lee Shouldice and Charles Lee for Maclean Hunter Canadian Publishing, a division of Maclean Hunter Limited; Kathleen Martin, Luiza Monteiro and Lorne Slotnick for the Southern Ontario Newspaper Guild

Cite As: Maclean's Magazine (No. 2) (1993) 4 P.E.R. 45

Negotiation - Good Faith

The Tribunal found that Maclean's failure to advise the Union in a timely way of its intention to challenge the first ReviewOfficerOrder and itshavingcontinuedto negotiateas ifitacceptedthe Order wasa failure to bargain in good faith. Maclean's action denied the Union the opportunity to determine its negotiating strategy in the context of Maclean's true intentions. As such Maclean's breached its obligation to engage in full, open, honest and informed discussions.

Practice and Procedure - Abuse of Process - Delay

The Tribunalrefused to dismiss Maclean's Application for delay or abuse of process where the evidence showedthat, although the Application had notbeenmadepromptly, the partieshadengagedinmeaningful bargaining up to the point that Maclean's filed its Application.

Négociations - Bonne foi

Le Tribunal astatué que ledéfaut de Maclean'sd'informerlesyndicat,entempsopportun, desonintention d'interjeter appel du premier ordre de l’agent de révision et le fait de poursuivre les négociations comme s'il acceptait cet ordre constituaient un défaut de négocier de bonne foi. Le geste de Maclean's a privé le syndicat de la possibilité de définir sa stratégie de négociation en fonction des intentions véritables du magazine. Maclean's a donc manqué à son obligation de participer à un dialogue intégral, franc, honnête et éclairé.

Practice et procédure - Retard

Le Tribunal a refusé de rejeter la requête de Maclean's pour cause de retard ou d' abus de procédure. Il a fait valoir que les preuves qui avaient été fournies révélaient que même si la requête n'avait pas été présentée dans les délais impartis, les parties avaient négocié de bonne foi jusqu'au dépôt de la requête de Maclean's.

DECISION OF THE TRIBUNAL, SEPTEMBER 14, 1993

1We have amended the style of cause to reflect the correct name of the Employer: Maclean Hunter Canadian Publishing, a division of Maclean Hunter Limited.

2Tribunal File 0412-93isanapplicationbytheEmployer with respect to orders of a Review Officer, dated February 18, 1991 (the "first order") and October 7, 1992 (the "second order"). In the first order, theOfficerdeterminedthe genderdominanceof10 job classes.Inthe secondorder,theOfficerdetermined the scores forthe Researcher/Reporterjob classon3 subfactorsofthe job evaluation system. In addition, the second order dealt with how to determine job rate, and whether red-circling during the pay equity process was an acceptable method to establish job rate.

3Tribunal File 0355-92 arises from a referral by the Review Officer, pursuant to subsection 23(2) of the Pay Equity Act, R.S.O. 1990, c.P.7 (the "Act"). The Union alleges that the Employer has failed to bargainingoodfaith. In addition, the Union raised a preliminary motion in respect of TribunalFile0412-93, askingforadismissalofthe Employer's Application with respect to the first order, for delay, abuse of process, or on the basis that it was made in bad faith.

4On agreement of the parties, the Tribunal heard evidence and argument on the bad faith bargaining allegations and the preliminary motions at the same time.

EVIDENCE

1 The Union represents a bargaining unit comprised of the editorial employees of Maclean's Magazine, which is part of the Canadian Publishing division of Maclean Hunter Limited. Maclean's Magazine is a weekly news magazine. The Union has been the bargaining agent since 1983.

2 The parties commenced pay equity negotiations in January 1989. Discussions in the early months centred around disclosure of information, the gender dominance of job classes and the gender neutral comparisonsystem that would be used. By January 1990, although the parties hadagreedonthegender dominance of a number of job classes, 10 were still in dispute. Michael Benedict, an Assistant Managing Editor of Maclean's Magazine, and a member of the Employer's pay equity negotiating team, commented thathe did notwant to commence the evaluations of the job classes until the partiesknewwhichwould be male dominated, which would be female dominated and which would be gender neutral. The evidence disclosed that both parties agreed to evaluate only male and female job classes; that is, no gender neutral job classes were to beevaluated.The partiessought the assistanceofaReviewOfficerwithrespectto the issue of gender dominance as well as the issue of disclosure and the issue of who is the employer.

3 A meeting with a Review Officer was held in May 1990. The disclosure and employer questions were discussed and appear to have been set aside. Because they were not issues in contention before us, the partiesunderstandably,didnotleadmuchevidenceonthem. At the meeting, the Review Officer proposed to make a "ruling" on the gender dominance of the disputed job classes, which would be binding on the parties. The Employer was agreeable, but the Union wanted to retain its right to bring the matter to the Tribunal. Consequently, the Review Officer asked the parties to make written submissions.

4 The Employer did not provide its submissions until late November. The Employer testified that the delay was caused by a number of factors, including the difficulty in locating accurate information on the historical incumbency of the positions.

5In the meantime, the parties continued their negotiations around the gender neutral comparison system.

6On February 18, 1991, the Officer issued the Order determining the gender dominance of the ten job classes, which we have referred to as the first Order. She found that seven were female dominated, two male dominated and one gender neutral. The Employer's position had been that all were gender neutral; the same position it takes in these proceedings. On March 26, 1991 the parties met again and, separately, each had prepared an identical list of the gender dominance of the job classes, comprised of those that had been agreed on and those that the Officer had ordered. The parties exchanged their lists, but there was no discussion of the Order. Their discussion centred on issues around the gender neutral comparison system. They alsodiscussedthepossibilityof reaching agreement on pay equity adjustments without a formal evaluation of the job classes; what they came to call "whole job ranking" and a "global approach".

7During the parties' negotiations, there were a number of discussions about the possibility of a monetary settlement based on a "global approach" or "whole job ranking". In April 1991, the Employer made a proposal for settlement. The evidence disclosed that both parties were interested in such a settlement. The Employer wanted to avoid the time and costs involved in a formal evaluation and the Union wanted a settlement that would provide adjustments to female job classes which might not find higher paid male comparators in the evaluation process. The Union considered the Employer's offer, but rejected it.

8In June 1991, the parties discussed moving on to the evaluations, and what weightings would be used. The parties ultimately agreed on the gender neutral comparison system and proceeded to test it. Questionnaires were distributed and a joint committee met over six days to evaluate the job classes. As noted earlier, by agreement, the committee evaluated only male and female job classes. Those that had been identified as gender neutral were not evaluated. A consensus was reached on the evaluation results for all the job classes, but by agreement, the members of the joint committee put asterisks on the scores ofsome ofthe subfactorsinsome ofthe job classes to indicate the need for laterreviewbythe committee.

9The evaluations were finished on November 18, 1991. On November 19, 1991, the parties met again. It should be noted that the negotiation committee and the joint job evaluation committee were comprisedofthesamepeople. By all accounts, the atmosphere of the November 19, 1991 meeting was uncharacteristically fractious. Although we heard a lot of evidence on who said what, the evidence is surprisinglyconsistent. The Employer's representatives advised that they thought some oftheevaluations were wrong. They were particularly concerned about the results of the Researcher/Reporter position. The Employer felt that three of the subfactors were overrated.

14. MichaelBenedict testified that he advised the Union that the Employer was concerned about both the accuracy of the evaluation results and their resulting cost. Benedict did not feel that the evaluation results reflected the entry level nature of the position, and the payequityadjustment would have the effect of seriously disrupting the hierarchy of positions at Maclean's Magazine. Further, because the adjustment would be large and there were a number of incumbents, the direct costs would be high. The Union perceived that the Employer was only concerned about the cost and not the accuracy of the evaluation results. The Employer countered that it was not challenging other evaluation results that would have cost implications.

10The Employer wanted to review the evaluations. At the start of the evaluation process the members of the joint committee had agreed to "sorethumb" the evaluation results at the end of the process, without deciding what that would entail. The failure todiscusswhat"sorethumbing"would involve led to different expectations of what process would be used. The Union said that it had reviewed the evaluation results and not found "sorethumbs", so saw no need to look at the job classes again.

11Although the meeting was testy, other issues were discussed. The Union noted that part of the bargaining unit was in Ottawa and requested that the Ottawa establishment be combined with Toronto, in accordance with subsection14(3)(a) ofthe Act. The Union made the request on the basis that the Ottawa office is integral to Maclean's Magazine, is covered by the same collective agreement, and the female job classinOttawawasunlikelytofindacomparator. The Employer said no, on thebasisthatthe Act did not require it to combine establishments. At the same meeting, the Employer indicated it was still interested in making a monetary proposal to settle.

12In December, 1991, the Union wrote to the Review Officer, indicating that the parties had reached an impasse. The Union wrote that the outstanding items were the evaluation results of the Researcher/Reporter, how comparability would be determined, how job rate would be calculated and whether Ottawa would be combined with the Toronto establishment.

13A meeting was held with the Review Officer in February 1992. The Union alleged that the Employer was delaying the process and the Employer countered that the Union was refusing to "sorethumb" the evaluation results. The parties again discussed a "global offer", that is a sum of money that would be distributed by the Union to a number of female job classes. After the Officer attempted to mediate a settlement, unsuccessfully, she advised the Union that the Employer had informed her it intended to bring anApplicationtotheTribunalwithrespecttothefirstOrder. All the witnesses agreed this was the first time the Employer informed the Union that it was going to challenge the order. The Employer's witnesses testifiedthatalthoughtheyhadbeenunhappywiththe firstOrder allthe wayalong, theyhopedthatitwould be irrelevant in the end. However, when no settlement could be reached, either onthe evaluationresults, or amonetarysum, the Order ongenderdominancebecameveryrelevant,and consequently, the Employer decided to challenge it.

14The Union's witnesses testified that they were stunned by this announcement, given that they had negotiated for over a year on the basis of the first Order. Initially, the Review Officer proposed that she would refer the first Order to the Tribunal, but later changed her mind. Ultimately, she proposed that the parties continue their negotiations as far as possible so that all outstanding disputes could be taken to the Tribunal at the same time.

20. The parties met again in April 1992 and agreed to "sorethumb" the evaluations and to evaluate some job classes outside the bargaining unit, in an effortto find comparatorsforsome ofthe female job classes. The parties also agreed on how to determine comparability. The non-bargaining unit job classes were evaluated by the joint committee and the "sorethumbing" was done, but without a resolution of the evaluation of the Researcher/Reporter job class.

15On June 1, 1992, the parties wrote a joint letter to the Review Officer outlining their progress and indicating that the Researcher/Reporter evaluation and how to determine job rate were still outstanding issues. In November 1992, the Review Officer issued her second Order, dealing with those issues.

16During bargaining for a collective agreement in the fall of 1992, another attempt was made to resolve the pay equity dispute with a "global offer". Again, it was unsuccessful.

17On December 8, 1992, the Employer filed its Application with respect to both Orders. On January 28, 1993, the Union filed its Application alleging that the Employer had failed to negotiate in good faith.

DECISION

1 Although both counsel made extensive submissions, we will not set them out in detail. The Union argued that the Employer's courseofconductshould result inthe Tribunal'srefusingto hearits Application with respect to the first Order. The Union argued that the Tribunal should dismiss the Application on the basis of delay, abuse of process, or as a remedy for bad faith bargaining. The Employer argued that the evidence did not make out a case of abuse of process and that the Tribunal did not otherwise have jurisdiction to dismiss an Application.

2 Because of the conclusions the Tribunal has reached on the evidence, it is not necessary for us to answer whether the Tribunal has the jurisdiction to dismiss an application on the basis of delay, abuse of process or as a remedy for bargaining in bad faith.

26. Dealing first with the allegation that the Employer's Application is an abuse of process, in Peterborough (1992), 3 P.E.R.8 the Tribunal said:

Inorder tomakeout an allegation of abuseofthe Tribunal'sprocesses, a partymustshow that the Tribunal's processes are being used as a vehicle to promote oppression or harassment of another party. It is not enough to show merely that a party is being oppressed or harassed by the other party because that, in itself, is not an abuse of the Tribunal's processes.

3 The evidence in this case falls far short of meeting this test. The gender dominance of the job classes is a legitimate dispute between the parties and the Union has not established that the Application with respect to the first Order is an inappropriate use of the Tribunal's processes with the intent to harass or oppress the Union.

28. We do not find that the Employer has engaged in delay to such an extent that the Tribunal would dismissitsApplicationwithrespecttothefirstOrder. The evidence shows that up to the issuing of the first Order, the parties engaged in meaningful bargaining toward a pay equity plan, with regular meetings and substantial progress. From February 1991, to February 1992, again, the parties engaged in meaningful bargaining. With the exception of the Employer's announcement at the February 1992 meeting of its plans toappealthefirstOrder,thenegotiationsafterFebruary1992 were also meaningful. The parties,withthe assistance ofthe ReviewOfficerattemptedto continue their negotiations as faraspossible,beforeadvising theReviewOfficeroftheoutstanding issuesinJuneof1992. The Review Officer issued her second Order inNovember1992 and the Employer filed its Applicationwithrespectto bothOrders inDecember1992. There was some dispute about whether the Employer made statements that it would delay the process. We do notfind itnecessaryto determine if those statements were made and ifso inwhatcontext,because the Employer's actions do not indicate an intention to delay. As we have set out in the chronology of events, the parties continued to meet and to move forward on issues.

4 We conclude that generally, these negotiations were conducted with the usual give and take ofpay equity bargaining. The process was complicated by the back and forth between seeking a "global approach" to settlement and evaluating the job classes. Not surprisingly, stumbling blocks were encountered and a measure of self-interest was exhibited by both sides. The Employer was concerned about cost and the internal implications of the Researcher/Reporter evaluations. The Union, on the other hand, was looking for the maximum pay equity adjustments possible, and was concerned with spreading theadjustmentsaround,recognisingthatnotallfemale job classeswould findhigherpaidmalecomparators. We are not surprised that parties bring these concerns to pay equity negotiations. However, we do not conclude that the Employer's concern about cost took precedence over its obligations to meet the requirements of the Act.

5 In conclusion then, we do not find thattherewasevidenceofdelayorabuseofprocessorbadfaith bargaining that would cause us to consider dismissing the Employer's Application withrespect to the first Order.

6 We wish to address, however the Employer's failure to advise the Union, in a timely fashion, of its intentiontoappealthefirstOrder. On the Employer's evidence, the Employer was not happy with the first Order, but wasnot prepared to incur the expense and delay in appealing it because it might turnout to be irrelevant. That explains the Employer's decision not to appeal the Order in early 1991, but it does not explain why it did not advise the Union that it might later appeal, or why it negotiated on the basis that it accepted the Order.

7 The Employer submitted that it was under no obligation to advise the Union of its strategy. That may betrue inothersituations,but onthe factsbeforeus,the Employernotonlyfailedto advisethe Unionitwas reserving its right to appeal, but continued to negotiate as if it had accepted the order, thereby misleading the Union. The Employer misled the Union by tabling a list of job classes that included the Review Officer's ordered gender dominance. The parties then proceeded to evaluate all the job classes, even though, the Employer's view was that some of them were gender neutral and the parties had agreed not to evaluate gender neutral job classes. Taken together with Mr. Benedict's earlier comment that he did not want to commence the evaluations until the gender dominance of the job classes was settled, the Employer's conduct could reasonably be interpreted as an acceptance of the first Order.

8 We find that by continuing to negotiate as though it accepted the first Order, the Employer denied the Union the opportunity to determine its negotiating strategy based on a clear understanding of the Employer's intentions. The Employer breacheditsobligationtoengage in full, open, honest and informed discussions. Therefore, we find that in this one instance, the Employer failed to bargain in good faith, contrary to section 14 of the Act.

9 The Union argued that the Employer's failure to provide a rationale for not combining the Ottawa establishment with Toronto also constituted bad faith bargaining. Subsection 14(3) provides that an employer and bargaining agent "may agree" that the establishment includes more than one geographic division. While an employer and bargaining agent are not required to agree to combine the establishments, theirdutytobargainingoodfaithrequires full, open, honest and informeddiscussionsabouttheissue. We find that the Employerdid notprovideanadequateexplanationfornotwantingto combine the Ottawaand Toronto establishments. However, given that the Union raised the issue late in the negotiations, and that it was raised only once, we are not prepared to find in the context of these negotiations, that the Employer breached its duty to bargain in good faith in this instance.

REMEDY

1 We find that the Employer breached its obligation to bargain in good faith in misleading the Union about its intentions with respect to the first Order. The purpose ofa remedy for bad faith bargaining is to puttheaggrievedpartyin the bargaining position it would havebeeninhadthebreachnotoccurred. If the Employersucceeds withitsApplicationonthe first Order, the gender dominance of some or all ofthe job classes will change to gender neutral. The evidence disclosed that the parties chose not to evaluate any gender neutral job classes. Therefore, if the Tribunal finds that some or all of the job classes are gender neutral, then the parties will have wasted time and expense in evaluating those job classes. We conclude thattheEmployer should be required tocompensatetheUnionforthatwastedtimeandexpense. Had the Employer advised the Union that it was reserving its right to bring an Application with respect to the first Order, the Unionwould have had an opportunity to decide whether to proceed with the evaluations orto seekadeterminationofthe gender dominance issue at the Tribunal before proceeding further. However, the Employer's breach prevented the Union from making that choice.

2 At this point in the proceedings, it is impossible to determine if the Union was put to unnecessary time and expense because that will depend on the outcome of the Employer's Application with respect to the first Order. If the Employer is unsuccessful, no time spent in evaluations will have been wasted. Consequently, we will reserve on the quantum of the compensation.

3 The Union requested that as part of the remedy, the Employer be required to pay the legal costs the UnionincurredinbringingthisApplication. We do not need to decide if we have the jurisdiction to award legal costs, because we would not order them in this case. Administrative law tribunals have generally declined to order costs because of a concern that such awards would be an inappropriate disincentive to partiesseekingtoexercisetheirstatutoryrights. Generally, when costs are awarded, it is in the context of an egregious breachofstatutoryrights,andanawardofcosts is intended to be punitive. Labour relations tribunals,inparticular,have most reluctantly awarded costs out of aconcernforthe impactonthe ongoing relations between bargaining agents and their employers. Considering all of those principles, the facts of this case do not warrant an award of costs.