Government’s secret deal with another union violated duty to bargain in good faith
Entering into a secret deal with OPSEU, and misleading AMAPCEO during negotiations, constituted bargaining in bad faith
In AMAPCEO v. Ontario (Ministry of Government Services), the Ontario Labour Relations Board held that the Government violated its duty to bargain in good faith when it failed to disclose in bargaining a secret deal made with another union.
In February 2009, the government of Ontario and the Ontario Public Service Employees Union (OPSEU) entered into a renewal collective agreement with a four year term from 2009 to 2013. The Memorandum of Settlement and the public announcements made by both the government and OPSEU following the settlement indicated that they had agreed to yearly across the board wage increases of 1.75%, 2%, 2% and 2% during the term of the agreement.
In fact, the government and OPSEU had agreed that an extra 1% increase would be paid in the fourth year of the contract (for a total across the board increase of 3%). However, the additional 1% increase was contained in a secret deal that the parties agreed would not be part of the Memorandum of Settlement, would not be reflected in the collective agreement and would not be printed in the salary schedule. While the government knew that the additional increase would have to be publicly disclosed at some point in order to be implemented (and not later than October 2011), it apparently wanted to control the timing of that disclosure.
Shortly after the OPSEU agreement was ratified, the government and AMAPCEO commenced negotiations. Although AMAPCEO requested all relevant information concerning the OPSEU settlement, the secret deal with OPSEU was not disclosed. During negotiations both AMAPCEO and the government made frequent references to the OPSEU settlement and to historical comparisons of AMAPCEO and OPSEU wage rates. The government told AMAPCEO that OPSEU’s increases of 1.75, 2, 2 and 2% had been partly justified on the basis of concessions that OPSEU had made in bargaining. In fact, the cost savings resulting from concessions were directed into the additional 1% increase that AMAPCEO knew nothing about. The government and AMAPCEO eventually reached a 3-year agreement with across the board increases of 1.75, 2 and 2%.
AMAPCEO subsequently became aware of the government’s secret deal with OPSEU and filed an unfair labour practice complaint with the Ontario Labour Relations Board. It argued that, in entering into a secret deal with OPSEU and misleading AMAPCEO during negotiations, the government had bargained in bad faith.
The Board’s decision
On January 30, 2012, the Ontario Labour Relations Board found in favour of AMAPCEO, holding that the government had violated its duty to bargain in good faith.
The Board noted that, ever since trade unions acquired the right to file unfair labour practice complaints almost 40 years ago, labour relations boards have held that the duty to bargain in good faith requires the parties to engage in full and honest discussion. Withholding information that the party opposite needs in order to intelligently appraise a proposal, or deliberately misleading the other party, violates that duty.
In this case, the Board held that the government knew that AMAPCEO and other public service bargaining agents would use the OPSEU settlement as a reference point when settling their own expectations and demands for upcoming rounds of collective bargaining. While the additional 1% increase would be revealed at some point, the secret deal was sufficient to keep the information from coming to the attention of AMAPCEO and other trade unions until after their own negotiations were concluded. The Board concluded that the secret deal and the government’s conduct in negotiations amounted to a “deliberate misrepresentation”:
…[T]he Employer deliberately created a construct whereby AMAPCEO, and others, would come into possession of incorrect information as to 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 Board therefore declared that the government had violated the Labour Relations Act, 1995.