Northern Exposure

Strangers at the table: Employers may need to accept observers in collective bargaining

by David McDonald

In Canada, collective agreements are generally accessible to the public. Canadian jurisdictions provide mechanisms to file collective agreements with government authorities, and it is not uncommon for the union or the employer to post their agreement on the web. However, the process of bargaining itself is private and typically carefully guarded by the parties. This allows for a free flow of information between the parties in order to achieve better negotiations.

In a recent case, a Canadian labor board was faced with a difficult question: What happens when one side tries to bring “observers” to the negotiation table? Surprisingly, the board ruled that observers could have a seat at the table.

What happened in this case

In Pro Vita Care Management Inc. and the Hospital Employees’ Union (BCLRB No. B142/2016), the British Columbia Labour Relations Board was faced with a bad faith bargaining complaint brought by a union against an employer that provided healthcare services at four separate facilities. Each facility was individually certified by the union, with its own specific collective agreement. Furthermore, each collective agreement contained a provision outlining the size of the bargaining committee on the union’s side.

When bargaining for the first site commenced, the union declared that it had adopted an “open bargaining policy” and brought members of its negotiating committees for the three other facilities to the table to attend as “observers.” The employer immediately objected to the presence of those observers. When it learned that the union insisted on bringing observers the next day at another bargaining table, the employer refused to meet for bargaining. A complaint for unfair labor practice ensued.

The union justified the presence of its observers by claiming they would be better prepared for the collective bargaining at their respective facilities. According to the union, the employer was improperly imposing pre-conditions to the commencement or resumption of bargaining.

For its part, the employer argued that it was the union that was attempting to unilaterally dictate the format of bargaining, while also violating the terms of the collective agreement regarding the size of the bargaining committee.

What the Labour Board decided

Surprisingly, the Board agreed with the union’s position. The Board found that the union was not attempting to unilaterally alter the bargaining structure since there were still individual bargaining tables for each facility. Standardizing the terms of collective agreements was understandable as well, according to the Board. Lastly, there was no evidence that the observers were disruptive, and their presence did not turn the otherwise private bargaining into a “free for all” open to the public. Oddly, the Board did not expand on the employer’s argument that the observers violated the provision regarding the size of bargaining committees.

 

What you should take away

It is our understanding that the employer is seeking to appeal this decision by way of an application for reconsideration at the BC Labour Relations Board.

Unless and until the decision is overturned, it is possible that other employers, particularly those with multiple locations in separate certifications, could see strangers attending bargaining in the future. In those circumstances, the ability to object to their presence may be limited. We recommend that employers that are concerned about this engage in pre-bargaining protocol discussions with their union and consider strict confidentiality conditions on any documents produced in the bargaining process.