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LockTalk #16: Arbitration – What’s happened and what’s next

LockTalk #15 came out on July 11th announcing the employer’s delay to arbitration. We know this had a profound impact on the membership of the Correctional Bargaining Unit. The employer’s continued actions at the bargaining table are shameful. They keep spewing memos about how they care about employees and are building a “people-centred workforce”, yet their actions at the bargaining table simply don’t match their words. Coming unprepared doesn’t demonstrate that we are their most valuable resource.

We’ve heard from members. Most dominant is the anger and frustration all of us are feeling at the employer for delaying the arbitration hearing. We know that institutions, facilities, and offices are reaching a boiling point.

The Bargaining Team held a meeting with local presidents and Regional Employee Relations Committee (RERC) chairs on July 13th to provide local leaders with information and get a feel of the pulse of locals across the province.

To ensure that this information is easily accessible to all members, we have put together a list of common questions about where we are in the bargaining process and next steps.

Q: What piece of legislation sets out the interest arbitration process for the Correctional Bargaining Unit?

A: Part III.1 of the Crown Employees Collective Bargaining Act (CECBA) is the legislation governing interest arbitration for the Correctional Bargaining Unit.

Q: Do we have a single arbitrator or a board of arbitration?

A: In this round of bargaining, the union and employer agreed to refer matters to a single arbitrator – Bill Kaplan.

Q: How are the arbitration process and timelines determined?

A: Section 29.5 (6) of CECBA provides that the board of arbitration (or a single arbitrator) shall determine its own procedure. The only requirement is that the parties must have a full opportunity to present their evidence and make their submissions.

Q: Why isn’t arbitration proceeding on July 25, 2023?

A: The employer informed the arbitrator that they would not be prepared to proceed on July 25th. CECBA requires that procedures for arbitration “give full opportunity to the parties to present their evidence and make their submissions”.

Q: Why did the Bargaining Team agree to this delay?

A: The Bargaining Team did not agree to the delay. The employer recently requested that July 25th be changed from an arbitration hearing to another mediation date. The Bargaining Team did not agree and stated that we would be proceeding with arbitration. The employer then showed up at the previously scheduled mediation on July 10th, and, without notice, informed the arbitrator that they would not be ready to proceed with arbitration on July 25th.

The team had two options. We could go ahead with presenting our case on July 25th, knowing that the employer would not be ready to respond, and then would have the advantage of knowing our final arguments well in advance of preparing and presenting their case. Alternatively, we could push the July 25th date, and have both sides exchange their submissions and present their cases at the same time – as is the usual process for interest arbitration. We determined that it was in the best interests of the bargaining unit for both sides to present at the same time, eliminating any unfair advantage to the employer.

This situation was forced upon the bargaining team as a result of the employer’s lack of preparedness.

Q: Why couldn’t the arbitrator make a decision with just the union’s submissions on July 25th?

A: CECBA requires that procedures for arbitration “give full opportunity to the parties to present their evidence and make their submissions”. Given that requirement, it was not a realistic possibility for the arbitrator to make a decision based only on the evidence and submissions of the union.

Q: Why didn’t the union present their case on July 25th?

A: The team made the decision not to present the union’s full arbitration brief on July 25th as we did not want to provide the employer any advantage in the process. Presenting alone would have given the employer the full details of our case with months to prepare their reply. This decision was made in consultation with our legal team.

Regardless, the employer was not going to be presenting their case on July 25th and realistically an arbitration decision was not going to be made with the union’s submissions alone. This is consistent with the arbitration process outlined in CECBA.

Q: Didn’t the employer know for months that July 25th was the arbitration date? Why weren’t they prepared?

A: Yes – the employer agreed to this arbitration date back in the fall of 2022 and confirmed it as recently as May 18. It is the Bargaining Team’s opinion that the employer has had ample time to prepare. The employer provided no indication until the mediation on July 10th that they would not be prepared to proceed with arbitration on July 25th. The employer indicated that they had no mandate at this time, but did not provide further details.

Q: Isn’t the employer engaging in bargaining in bad faith?

A: According to our legal team, a bargaining in bad faith application requires that we be able to prove that the employer is failing to make a sincere attempt to reach an agreement. In this case, the delay in the arbitration process is not, in and of itself, a sufficient basis to advance such a claim, and is not likely to establish a breach of the duty to bargain in good faith.

Q: Why was arbitration delayed until November 25-26, 2023?

A: The first available dates for the parties to proceed with back-to-back days of arbitration were during the weekend of November 25 and 26, 2023.

Q: What stops the employer from delaying the arbitration process on November 25-26, 2023?

A: The arbitrator issued direction to the parties requiring that arbitration briefs be exchanged on October 2nd, and reply briefs on November 3rd, 2023, in preparation for an arbitration hearing scheduled for November 25 and 26, 2023. If the employer does not comply with these timelines, we will seek relief from the arbitrator.

Q: Why is this round of bargaining and arbitration taking so long?

A: This has been a complicated round of bargaining, which began under the restrictive provisions of Bill 124. In April 2022 the government called an election, which interrupted the bargaining process. Bill 124 was declared void and of no effect in November 2022 and the Union has been seeking to re-engage in free collective bargaining with the employer.

Q: Can we go on strike or walk out?

A: No. Section 29.12 of CECBA specifically prohibits strikes and lockouts for the Correctional Bargaining Unit. Any strike or walk out would be considered illegal. Such an action could result in fines, individual discipline, and could have significant negative impacts on the arbitration process.

When the Correctional Bargaining Unit switched to interest arbitration and a stand-alone collective agreement, this meant that all members were deemed essential and no longer had the right to strike. These changes were made with the overwhelming support of members from the bargaining unit.

Q: What about slowing down work or working to rule?

A: The legal opinion of our arbitration lawyers is that any slow down or work to rule could be interpreted as an illegal strike. Again, this kind of action could result in fines, individual discipline, and could have significant negative impacts on the arbitration process. The union asks that our members do not engage in work slowdowns or work to rule.

Q: Why isn’t the bargaining team giving members more information on their strategy?

A: The team has committed to providing a fulsome review of the strategy throughout this bargaining cycle once arbitration has concluded. Providing more detailed information at this time would be revealing our strategy to the employer giving them an unfair advantage in the process.

Q: Who is providing legal advice to the Correctional Bargaining Team?

A: To assist the Correctional Bargaining Unit in achieving success, Jones Pearce LLP has been retained. Jones Pearce LLP is a well-respected law firm with a focus on representation of trade unions, professional associations, and their members. During this round of bargaining, Nini Jones and Lauren Pearce have been providing legal advice to the Bargaining Team.

Nini Jones was instrumental to the Correctional Bargaining Unit during the last round of bargaining. She has over two decades of labour and employment law experience, with a special expertise in policing labour relations. She is a close and long-term advisor to many unions and police associations across the province.

Bargaining is a fluid and dynamic process. As the process plays out, we will respond accordingly. Stay tuned for future updates.