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OPS Employer Conduct was “Deliberate Misrepresentation"Monday, January 30, 2012
Dear Members: RE: AMAPCEO Bad Faith Complaint to the Ontario Labour Relations Board This morning, the Ontario Labour Relations Board rendered its decision on the unfair labour practice bad faith bargaining complaint that AMAPCEO brought against the OPS employer in March 2010. The complaint arose out of the 2009-2011 AMAPCEO collective bargaining process. In brief, AMAPCEO alleged that the employer had bargained in bad faith by actively misrepresenting to AMAPCEO, and to the entire OPS community, the real deal it made with OPSEU in 2008 bargaining. Essentially, the employer entered into a secret deal to give OPSEU a 3% across the Board increase in 2012, when that agreement on its face and in all public communications was stated to be for a 2% across the board increase in 2012. I am pleased to report that the OLRB has upheld AMAPCEO’s complaint. After hearing dozens of hours of testimony from AMAPCEO and the employer, and reviewing hundreds of pages of documentary evidence, the OLRB found that the government breached the Labour Relations Act and acted in bad faith during its negotiations with AMAPCEO. The Board has reconfirmed that “one of the functions served by the duty to bargain in good faith… is to foster rational and informed discussion. The duty requires parties to engage in full and honest discussion and censures parties for withholding information that the party opposite requires in order to intelligently appraise the proposal.” Vice- Chair Diane Gee went on to conclude that “the Employer entered into the confidential agreement with OPSEU in order to keep the extra 1% from coming to the knowledge of AMAPCEO, among others, with a view to influencing the outcome of the upcoming collective bargaining negotiations.” She found that “the Employer entered into the confidential agreement with OPSEU in order to create a construct whereby AMAPCEO would believe that those [i.e. 2% as opposed to 3% in the fourth year] were the OPSEU ATB numbers. I find the Employer’s conduct in the circumstances to amount to a deliberate misrepresentation.” The Board’s decision concluded as follows: “…the Board wishes to be clear that, in this case, the Employer deliberately created a construct whereby AMAPCEO, and others, would come into the possession of incorrect information of the terms of the OPSEU unified settlement in order that the OPSEU settlement would be perceived as being less costly than it in fact was with the intent of causing AMAPCEO to lower its expectations and demands at the bargaining table.” The hearing in this case was bifurcated by the OLRB, which means that the Board separated into two processes the issue of liability, which it has now dealt with, and the issue of what remedial relief is appropriate, which will be dealt with next. I want to underline that although AMAPCEO considers that its members are entitled to a meaningful monetary remedy for this breach, AMAPCEO would have undertaken these proceedings even if no remedy was or is available, because as a matter of principle, and to protect the long term interests of all our members, our Association determined that it cannot do business effectively with an employer that acts dishonestly in its relations with us. I am satisfied the Board’s ruling vindicates our position. With just over two months until our current collective agreement expires, we can only hope that the employer will absorb the lesson learned. I will continue to keep you informed of this process as it unfolds. Further Background: Bad Faith Bargaining Complaint - Members' Update - May 5, 2011 OLRB Decision Rejects Employer Request to Keep Hearing Evidence Confidential - May 4, 2011 AMAPCEO Bad Faith Complaint to the Ontario Labour Relations Board - April 28, 2011
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