Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al.

Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al.
Collection
Supreme Court Judgments
Date
1983-10-13
Report
[1983] 2 SCR 311
Case number
17256
Judges
Laskin, Bora; Dickson, Robert George Brian; McIntyre, William Rogers; Chouinard, Julien; Wilson, Bertha
On appeal from
Nova Scotia
Subjects
Labour law
Notes
SCC Case Information: 17256
Decision Content
Supreme Court of Canada
Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311
Date: 1983-10-13
The Canadian Union of Public Employees Appellant;
and
The Labour Relations Board (Noya Scotia) and The Digby Municipal School Board Respondents;
and
The Nova Scotia Federation of Labour Intervener.
File No.: 17256.
1983: May 4 and 5; 1983: October 13.
Present: Laskin C.J. and Dickson, McIntyre, Chouinard and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA
Labour law—Jurisdiction—Nova Scotia Labour Relations Board—Remedial powers—Employer in breach of statutory duty to make reasonable effort to conclude collective agreement—Whether or not remedial action ordered by Board within Board’s jurisdiction—Trade Union Act, 1972 (N.S.), c. 19, ss. 33, 34.
A long-standing and bitter labour dispute was referred to the Nova Scotia Labour Relations Board following a complaint that respondent School Board had failed to make every reasonable effort to conclude and sign a collective agreement as required by ss. 33 and 34 of the Trade Union Act. The Board held that the School Board had failed to bargain in good faith and ordered that the parties submit proposals and responses by specified dates, and set minimum requirements as to the content of the proposals and responses. When agreement was not reached, the Board submitted a stated case for the Nova Scotia Court of Appeal seeking its opinion on the Board’s jurisdiction to take remedial action. The broad issue here was the scope of the Board’s power under ss. 33 and 34 of the Act.
Held: The appeal should be dismissed.
Per Laskin C.J. and McIntyre and Chouinard JJ.: Sections 33(a) and 34(2) did not empower the Labour Board to require the employer to make the specified collective agreement proposals. The power to secure compliance with the duty to bargain in good faith could not be converted into one respecting reinstatement, restitution or compensation and legal costs. Section 33(a) merely obliged the bargaining parties to meet and bargain and to make every reasonable attempt to sign a collective agreement. Section 34(2) was limited to enforcing the obligations imposed on the parties under s. 33. The words “in the opinion of the Board” did not avoid this limitation, for the Board was only entitled to form such an opinion with respect to what was necessary for compliance with s. 33.
The Board had jurisdiction to order a complete proposal to be submitted and responded to, but could not stipulate that the proposal include a wage schedule with progressive increases or the modified Union security provisions. Both parties agreed that the employer would not contract out bus driving and that the Union would not strike or withdraw its services.
Per Dickson and Wilson JJ.: The Board was squarely within its power in holding that specific proposals were the reason for finding breach of duty to bargain in good faith under s. 33. The genuine intention to bargain and to reach agreement underlay this duty. Hard, tough bargaining could meet this criterion, unlike surface bargaining where the party pretended to bargain but in reality was intent on destroying the collective bargaining process. The Board, even though s. 33 did not impose a duty to reach a settlement, let alone a fair one, could make orders relating to the content of proposals necessary to “secure compliance”—a consequence flowing from the premise that the content of a proposal could form the basis of a finding of a breach of the duty to bargain in good faith. Such an order, made under s. 34(2), could take a positive form if it were the minimum required for this compliance with this duty.
Several of the Board’s orders were valid in that they fell within the power to secure compliance given in s. 33(a). The Board’s order that the School Board give an undertaking not to contract out was reasonably necessary to achieve an agreement having regard to the fact that the School Board had previously contracted out positions to get rid of the Union and that similar action in future would be tainted by this fact. This order did not affect the Union’s obligations. The order continuing the Union security clauses was the minimum required to demonstrate that the School Board was not trying to get rid of the Union, for those clauses underlay the viability of the Union itself. The Board, too, could order the reinstatement of workers. Since the replacement drivers had been hired to avoid a collective agreement, reinstatement would remove the very basis of this breach of good faith, and so secure compliance. The order that the Union respond to the School Board’s proposals within a set time frame was also valid in that s. 34(2) applied to “any party”, and it was natural to impose such limits on the negotiating parties.
The Court was not given adequate information in the stated case to declare several orders valid. The Board’s wage order could have been either a genuine effort to secure compliance or an attempt to impose an appropriate settlement. The order that the contract be renewed, even though it could in some circumstances be seen as within the power to secure compliance, was not supported with enough details to allow the Court to do other than speculate. Although the orders against the Union concerned the substance of negotiations and could conceivably have fallen under s. 34(2), they must be considered invalid in the absence of adequate details and in view of the fact that the Board made no finding of failure, on the Union’s part, to negotiate in good faith.
The Board did not have the power to order compensation or costs for a breach of s. 33(a). Section 34(2) allowed compensation only for a breach of s. 33(b); this was an additional remedy and not simply another element of securing compliance.
Re Tandy Electronics Ltd. and United Steelworkers of America (1980), 30 O.R. (2d) 29, 80 C.L.L.C. ¶14,017, considered; Canadian Union of Public Employees v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Ontario Public Service Employees Union v. Cybermedix Ltd., [1981] O.L.R.B. Rep. 13; Graphic Arts International Union and Toronto Star Newspapers Ltd., [1979] 3 Can LRBR 306; Retail, Wholesale and Department Store Union and Morris Rod Weeder Co. Ltd., [1978] 2 Can LRBR 49; United Brotherhood of Carpenters and Joiners of America and Carpenters Employer Bargaining Agency, [1978] 2 Can LRBR 501; Board of School Trustees (Vancouver) and Canadian Union of Public Employees, [1977] 2 Can LRBR 201; Cyprus Anvil Mining Corporation and United Steelworkers of America, [1976] 2 Can LRBR 360; United Steelworkers of America and Radio Shack, [1980] 1 Can LRBR 99; Fotomat Canada Limited and United Steelworkers of America, [1981] 1 Can LRBR 381; Graphic Arts International Union v. Graphic Centre (Ontario) Inc., [1976] O.L.R.B. Rep. 221; Kamloops News Inc. and International Typographical Union, [1981] 2 Can LRBR 356; Wilson Automotive (Belleville) Ltd. and Retail Clerks International Union, [1981] 1 Can LRBR 318; Labourers International Union and Municipality of Casimir, Jennings and Appleby, [1978] 2 Can LRBR 284; United Electrical, Radio & Machine Workers of America and Westing-house Canada Limited, [1980] 2 Can LRBR 469, affirmed (1980), 80 C.L.L.C. ¶14,062, referred to.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1982), 135 D.L.R. (3d) 582, 52 N.S.R. (2d) 181, 106 A.P.R. 181, amending an order made by the Labour Relations Board (Nova Scotia) and submitted by way of stated case. Appeal dismissed.
B.A. Crane, Q.C., and TV. Blaise MacDonald, for the appellant.
C. Peter McLellan and Brian Johnson, for the respondent Digby Municipal School Board.
Raymond Larkin and G.J. McConnell, for the intervener Nova Scotia Federation of Labour.
The judgment of Laskin C.J. and McIntyre and Chouinard JJ. was delivered by
THE CHIEF JUSTICE—Invoking s. 18(2) of the Trade Union Act, 1972 (N.S.), c. 19, the provincial Labour Relations Board stated a case for the Nova Scotia Court of Appeal, seeking its opinion on certain questions posed by the Board as a result of a complaint and ensuing proceedings arising from a dispute between the appellant Union and the respondent Digby Municipal School Board. The complaint, brought by the Union, was that the respondent employer had failed to make every reasonable effort to conclude and sign a collective agreement as required by s. 33 of the Act.
The parties had had collective bargaining relations under an agreement which expired on December 31, 1978 but when no renewal agreement was made the Union went on strike. The employer responded by contracting out the services of the striking employees. The first complaint of the Union, made on September 24, 1979, resulted in a decision by the Labour Board that the respondent had committed an unfair labour practice and the respondent was ordered to cease and desist from the practice. Thereafter, efforts were made by the Board, the Minister of Labour and the Government of Nova Scotia to have the parties bargain collectively to reach agreement, but negotiations repeatedly broke down. The matter was referred to the Minister of Labour on February 16, 1981, the allegation then being that the respondent had breached its obligation under ss. 33 and 34 of the Act, provisions to which I will come in some detail in due course. The Minister referred the matter to the Labour Relations Board under s. 34(1).
On July 31, 1981, after some thirteen days of hearings, the Board made an order requiring both parties to do certain things as set out in Schedule A to the order. Schedule A is in the following terms:
Requirements for the Digby Municipal School Board as a party to collective bargaining with Canadian Union of Public Employees, Local 1185, which must be done to secure compliance with the Order herein:
(1) The Board must draw up and present a complete set of proposals to the Union on or before August 10, 1981;
(2) A proposal to renew the previous contract with the Union, with amendments only in the following clauses:
(a) As to Union security—the former Union members at the time of the commencement of the strike who are now contract drivers may be employed if they so desire exempted from the Union security clause; (b) As to Union security—new employees may be employed if they so desire exempted from the previous Union security clause for the duration of the contract but must be subject to union dues;
(3) Such proposals shall include a proposal regarding wages of not less than
(a) An increase of not less than $48.00 per month to part-time drivers retroactive to January 1, 1979;
(b) A further increase of 9.2 % effective September 1, 1980;
(c) A further increase of 8.5 % effective September 1, 1981;
(d) A further increase of 5.5 % effective January 1, 1982.
(4) That the School Board will provide a letter to the Union stating that it will not contract out the driving of buses in return for a letter from the Union that it will not strike or otherwise withdraw its services. (Such letters are to apply specifically to the term of this collective agreement.)
(5) To advise the Union immediately and in any event not later than noon of Tuesday, August 11, 1981, as to its proposals.
Requirements for the Canadian Union of Public Employees, Local 1158 [sic], which must be done to secure compliance with the order herein:
(1) The Union must draw up and present a complete response to each School Board proposal on or before August 20, 1981;
(2) Any response is not to include the tying in of wages to some area formula, unless such a proposal is made by the School Board;
(3) The Union must not seek to exclude bus drivers currently under contract with the Board to fill positions left vacant after the striking drivers so desiring have been reinstated to their former positions.
The July 31st order also required the parties to return to the Board on August 31, 1981 if a new collective agreement was not reached. None was, and following the August 31, 1981 hearing the Labour Board, having made certain findings of fact upon the hearings and evidence, laid the issues before the Nova Scotia Court of Appeal by way of a stated case. The Board’s findings of fact were included in a schedule appended to the stated case.
There are difficulties in the formulation of the stated case and of the attached schedule because of gaps in its exposition. It became necessary for counsel for the Union and for its supporting intervener, the Nova Scotia Federation of Labour (allowed to participate in the Court of Appeal proceedings as a friend of the Court), to rely heavily on the reasons of the Labour Relations Board given in its decision on July 31, 1981, which also included Schedule A. The decision and reasons of July 31, 1981 are not mentioned in the stated case (Schedule A apart) but I feel it open to this Court to rely on those reasons since they are, at least inferentially, included in the stated case.
It is desirable that I reproduce the entire case stated by the Board. Leaving aside certain immaterial recitals, it reads as follows:
1. On or about the 19th of April, 1974 the Canadian Union of Public Employees, hereinafter referred to as the Union, was certified as the appropriate bargaining agent for certain employees of the Digby Regional High School Board, hereinafter referred to as the School Board.
2. Prior to December 31, 1978 an undated collective agreement signed by the Union and the School Board was in force for the calendar year 1978.
3. The Union gave notice to commence collective bargaining in writing by letter dated September 12, 1978.
4. The Union and the School Board entered the year 1979 without any collective agreement but they operated under the provisions of the 1978 agreement during negotiations. On August 27, 1979 at a union meeting the membership voted to go on strike and a strike commenced on September 4, 1979, the start of a school year. On September 5, 1979 the School Board agreed to contract out the busing of students.
5. On September 24, 1979 a complaint was made to the Labour Relations Board (Nova Scotia) alleging that the School Board had committed unfair labour practices prohibited by the Trade Union Act. By a decision dated November 8, 1979 the Labour Relations Board (Nova Scotia) found that the School Board had committed an unfair labour practice and the employer was ordered to cease and desist from this practice.
6. A complaint was received by the Minister of Labour and Manpower from the Union by letter dated February 16, 1981 alleging that the School Board had failed to make every reasonable effort to conclude and sign a collective agreement pursuant to sections 33 and 34 of the Trade Union Act. The Minister of Labour and Manpower, pursuant to section 34(1) referred the complaint to the Labour Relations Board (Nova Scotia).
7. The Board conducted hearings and heard evidence on March 16; April 13, 14, 15, 16, 27 and 28; May 19 and 20; June 22, 23 and 24; and July 22, 1981. The Board issued an interim order dated July 31,1981 and reserved August 31, 1981 as a date for a further hearing in the event a new collective agreement was not concluded and signed by that date.
8. Subsequent to the August 31, 1981 hearing, the Labour Relations Board (Nova Scotia) advised that certain questions would be referred to the Appeal Division of the Supreme Court of Nova Scotia for determination as questions of law.
9. The Labour Relations Board (Nova Scotia) has made certain findings of fact based upon the hearings conducted and the evidence before it and the findings are attached hereto under the signature of the Chairman and seal of the Board as Schedule “A”.
10. The Labour Relations Board (Nova Scotia) respectfully requests the opinion of the Appeal Division of the Supreme Court of Nova Scotia on the following questions hereinafter outlined:
(a) Whether the Labour Relations Board (Nova Scotia) has the power to make any or all of its order of July 31, 1981 which requires both parties to do certain things which were set in the order so that there would be, in the opinion of the Board, compliance with section 33 of the Trade Union Act.
(b) Whether the Labour Relations Board (Nova Scotia) has the power to order the removal of an individual from the bargaining process where it is believed that he or she obstructs reasonable efforts to conclude and sign a collective agreement.
(c) Whether the Labour Relations Board (Nova Scotia) has the power to order reinstatement of the employees as of a date from which the Board found that there has been a decision of the employer to avoid its obligation to “make every reasonable effort to conclude and sign a collective agreement”, i.e. a breach of section 33(a) of the Trade Union Act has occurred with respect to proper collective bargaining.
(d) Whether the Labour Relations Board (Nova Scotia) has the power to require an employer to pay salary, wages or other remuneration to an employee where the Labour Relations Board (Nova Scotia) finds that he or she has suffered a financial loss because of the employer’s breach of the provisions of the Trade Union Act.
(e) Whether the Labour Relations Board (Nova Scotia) has the power to award legal costs against the School Board to:
(i) the Union
(ii) the Employees.
I should note that it is agreed that s. 10(b) of the stated case is not in issue here. The broad issue raised by the remaining questions is the scope of the Board’s power under ss. 33 and 34 of the Trade Union Act. These sections have their origin in the Trade Union Act, 1947 (N.S.), c. 3, ss. 14 and 43(2), and are of considerable vintage having regard to developments in labour-management relations law in other provincial and in federal legislation. As they stand, they read as follows:
33 Where notice to commence collective bargaining has been given under Section 31 or Section 32 or in accordance with a collective agreement which provides for the revision of a provision of the agreement,
(a) the certified bargaining agent and the employer, or an employers’ organization representing the employer shall, without delay, but in any case within twenty clear days after the notice was given or such further time as the parties may agree, meet and commence or cause authorized representatives on their behalf to meet and commence to bargain collectively with one another and shall make every reasonable effort to conclude and sign a collective agreement; and
(b) the employer shall not, without consent by the certified or recognized bargaining agent or by the Board, increase or decrease rates of wages or alter any other term or condition of employment of employees in relation to whom notice to bargain has been given until
(i) a new collective agreement has been concluded; or
(ii) the bargaining agent and the employer or representatives authorized by them in that behalf, have bargained collectively and have failed to conclude a collective agreement, and either
(iii) a conciliation officer has been appointed and has failed to bring about an agreement between the parties and fourteen days have elapsed from the date on which the report of the conciliation officer was made to the Minister; or
(iv) a conciliation board has been appointed to endeavour to bring about agreement between them and seven days have elapsed from the date on which the report of the conciliation board was received by the Minister.
34 (1) Where the Minister receives a complaint in writing from a party to collective bargaining that any other party to the collective bargaining has failed to comply with Section 33 he may refer the complaint to the Board.
(2) Where a complaint from a party to collective bargaining is referred to the Board pursuant to subsection (1), the Board shall inquire into the complaint and may dismiss the complaint or may make an order requiring any party to the collective bargaining to do the things that in the opinion of the Board are necessary to secure compliance with Section 33, and may order an employer to pay to any employee compensation not exceeding a sum which, in the opinion of the Board, is equivalent to the remuneration that would, but for a failure to comply with clause (b) of Section 33, have been paid by the employer to the employee.
Although the dispute between the parties was settled in March, 1983, prior to the hearing before this Court, it was understood that the issues raised by the Union’s complaint and by the stated case would be dealt with by this Court as they were dealt with by the Nova Scotia Court of Appeal. Before turning to consider the ambit of ss. 33(a) and 34(2), I propose to set out the reasons and conclusions of the Nova Scotia Court of Appeal, given by Hart J.A., MacKeigan C.J.N.S., Cooper and Pace JJ.A. concurring, with Jones J.A. dissenting in part. Central to the opinion of Hart J.A. was the view that the Labour Board’s powers must be directed towards the advancement of collective bargaining but the Board cannot direct what the collective agreement shall contain. It is convenient to set out his views in the following paragraphs, at pp. 591-93, of his reasons.
It is difficult and perhaps inappropriate for this Court to determine in advance the actual types of order coming within the powers granted to the Board under the legislation. I will therefore simply consider the actual orders made in this case and express my opinion as to their validity.
I see no objection to the first order of the Board directing the school board to draw up and present a complete set of proposals to the union on or before a certain date.
The second order to renew the previous contract with amendments to certain clauses is, in my opinion, beyond the powers of the Board. By this order the Board is determining the content of the collective agreement rather than directing the parties to bargain collectively.
The third order of the Board requiring the school board to include certain wage increases in the collective agreement is likewise, in my opinion, beyond the power of the Board.
The fourth order of the Board requiring the school board to provide a letter to the union stating that it will not contract out the driving of school buses in return for a letter from the Union that it will not strike or otherwise withdraw its services is beyond the power of the Board. The Board does not have the power to withdraw from the parties the fundamental rights granted to them under the legislation.
The first order of the Board against the union to draw up and present a complete response to each of the school board’s proposals on or before a certain date is, in my opinion, within the competence of the Board.
The second order requiring that the union not tie in its wage request to some area formula is, in my opinion, beyond the power of the Board as it affects the content of the agreement.
The third requirement of the Board that the Union must not seek to exclude bus drivers who drove under contract provided there are vacancies after the striking drivers so desiring have been reinstated is, in my opin- ion, directed towards the advancement of the negotiations between the parties and not towards the terms of the contract itself. It is, therefore, within the powers of the Board.
I turn now to the answers to the questions stated by the Board for the opinion of the Court.
Question (a):
Whether the Labour Relations Board (Nova Scotia) has the power to make any or all of its order of July 31, 1981 which requires both parties to do certain things which were set in the order so that there would be, in the opinion of the Board, compliance with section 33 of the Trade Union Act.
Answer: The Labour Relations Board (Nova Scotia) has the power to require the school board to do the things set forth in para. (1) of sch. “A” of its order of July 31, 1981, but does not have the power to order the things set forth in paras. (2), (3) and (4) of that order. The Board has the power to require the union to do the things set forth in (1) of its order of July 31, 1981, but does not have the power to require the things set forth in (2) of that order.
Question (b):
Whether the Labour Relations Board (Nova Scotia) has the power to order the removal of an individual from the bargaining process where it is believed that he or she obstructs reasonable efforts to conclude and sign a collective agreement.
Answer: The Board does not have power to remove an individual from the bargaining process as the parties have the right to determine who their representative shall be. The Board does, however, have the right to require an individual to cease and desist from any conduct directed to prevent the bargaining process from attaining a collective agreement.
Question (c):
Whether the Labour Relations Board (Nova Scotia) has the power to order reinstatement of the employees as of a date from which the Board found that there has been a decision of the employer to avoid its obligation to ‘make every reasonable effort to conclude and sign a collective agreement’, i.e. a breach of section 33(a) of the Trade Union Act has occurred with respect to proper collective bargaining.
Answer: The Board does not have power to order reinstatement of employees as of a date from which the Board found that there had been a decision of the employer to avoid its obligations to make every reasonable effort to conclude and sign a collective agreement. The employees, in the case at bar, had elected to commence a strike and there was therefore no offence against s. 33(b) of the Act during the period of negotiation.
Question (d):
Whether the Labour Relations Board (Nova Scotia) has the power to require an employer to pay salary, wages or other remuneration to an employee where the Labour Relations Board (Nova Scotia) finds that he or she has suffered a financial loss because of the employer’s breach of the provisions of the Trade Union Act.
Answer: The only right of the Board to direct compensation to employees for a breach of s. 33 of the Trade Union Act is pursuant to s. 34 and no such breach can be established here because of the fact that the employees were on strike. No other breach of the Act has been suggested in the stated case and the answer therefore relates only to a breach of s. 33.
Question (e):
Where the Labour Relations Board (Nova Scotia) has the power to award legal costs against the school board to:
(i) the Union
(ii) the Employees.
Answer: The Board does not have power to award legal costs against the school board to the union or the employees. Costs may be awarded by a legislative tribunal only to the extent that the enabling legislation so provides. I see no such authorization in the Trade Union Act of Nova Scotia.
I would therefore remit this matter to the Labour Relations Board (Nova Scotia) with appropriate answers to the questions stated for the opinion of the Court.
In his partial dissent, Jones J.A. agreed that the Labour Relations Board has no power to direct the terms of a collective agreement. However, he took a different view from the other members of the Court on various questions addressed to the Court. On question (a) of the stated case he said, at p. 620, that “While the Board cannot stipulate the terms it can require the parties to make proposals on all matters in issue. By the same token it can require the parties to withdraw a proposal where it finds that the proposal is unreasonable and not made in good faith”. Question (b) is a non‑issue here, and the Court as a whole agreed that there was no such power. Jones J.A. would answer questions (c) and (d) in the affirmative, and so too question (e). Thus, he supports reinstatement of employees, compensatory orders and costs.
In their respective reasons, Hart J.A. and Jones J.A. made extensive reference to the judgment of the Ontario Divisional Court in Re Tandy Electronics Ltd. and United Steelworkers of America (1980), 30 O.R. (2d) 29, and this case was the pivot upon which the appellant Union and its supporting intervener based their submissions under ss. 33(a) and 34(2). Hart J.A. did not find the Tandy case supportive here, but Jones J.A. took a different view.
In addressing ss. 33(a) and 34(2), the appellant Union and the Nova Scotia Federation of Labour read the two provisions as providing scope for the Labour Relations Board to require the employer to make specific collective agreement proposals, almost to the point of imposing an agreement upon it. I cannot read ss. 33(a) and 34 in this way. Nor do I think that the Tandy case supports their position.
What is common to the decision of the Ontario Labour Relations Board in the Tandy case and that of the Nova Scotia Labour Relations Board in this case are findings in each case that the employer did not bargain in good faith to reach a collective agreement. Though that results in a breach of the relevant legislation in each case it does not give power to impose a collective agreement. In the Tandy case the Ontario Divisional Court was concerned with an order of the Ontario Board directing the employer to cease and desist from the bargaining position it had taken with respect to a union dues check-off clause. This order was upheld by the Court because the Board had specifically found that the employer’s position was aimed at fostering the demise of the Union and constituted one of the significant elements of bad faith in its bargaining conduct. In the instant case, Nova Scotia Board was not content to order the employer to cease and desist from pressing its position on a particular term. Its order required the employer to propose terms the content of which was fixed by the Board itself.
The Court in the Tandy case stated plainly that there was no statutory power to impose or direct the terms of a collective agreement. That is so here. However, it also asserted that the cease and desist order, which was within the authority of the Ontario Board, could have the indirect effect of imposing a term of the collective agreement upon the parties. I need not pursue this matter because there is no such issue in the present case, and I do not see how the appellant here and its supporting Nova Scotia Federation of Labour can convert the Ontario ruling into an analogical application of ss. 33(a) and 34 of the Nova Scotia statute.
Although the Nova Scotia Court of Appeal addressed itself mainly to the terms of the stated case, the submissions before this Court were under Schedule A. I turn therefore to the terms of the Schedule which prescribes what the Labour Relations Board exacts from the employer and the Union. There is obviously no difficulty in enforcing a requirement, the first term of the Schedule, that the employer draw up and present a complete set of proposals to the Union. This leaves it open to the parties to negotiate on them without, of course, binding the Union to their acceptance and, of course, leaving it to the employer to determine what it is prepared to agree to.
The second term, relating to Union security, is a direction to the employer to renew the previous collective agreement in this respect, subject to certain amendments set out in the Schedule. I do not find any authority in the Labour Relations Board to impose this term in a proposed agreement and I agree with Hart J.A. that it represented an excess of power by the Board.
Considerable argument was addressed to a requirement of the Board, under s. 3 of the Schedule, that the employer include in its proposal a certain wage schedule with progressive increases. This too is beyond the powers conferred by ss. 33(a) and 34 and cannot stand.
There is no difficulty in endorsing s. 4 of the Schedule which directs letters from the employer and from the Union respecting, from the former, a letter not to contract out the driving of buses and from the latter a letter that it will not strike or otherwise withdraw its services. Indeed, this provision was in effect agreed to by the parties and I need say nothing more about it.
The requirements from the Union under the Schedule are correlative to the proposals exacted from the employer and, again, present no difficulty.
This leaves for consideration issues of reinstatement, restitution or compensation and orders as to legal costs raised in the stated case. The attempt of the Union to convert the Board’s power to secure compliance with the duty to bargain in good faith into a power to order compensation and sanctions for a breach of this duty is not supportable even on the widest assessment of the terms of ss. 33(a) and 34. Reliance on the Tandy case involves an attempt to equate s. 34 of the Nova Scotia Act to s. 79(4) of the Ontario Act, and especially para. (c) of that provision which empowers the Ontario Board to make
79. …
(4) …
(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers’ organi- zation, trade union, council of trade unions employee or other person jointly or severally.
There is no comparable provision here for reinstatement and compensation as there was in the legislation in the Tandy case. Indeed, s. 34(2) provides for compensation only if there has been a failure to comply with s. 33(b) of the Act, relating to unauthorized alteration of wages, and there was no such issue raised in the present case. As Hart J.A. noted, the employees where on strike and there would be no breach of s. 33(b) when the strike was on foot; apart from this, it does not appear that there was an alteration of rates to support the invocation of s. 33(b).
The Union and the Nova Scotia Federation of Labour have based themselves throughout this appeal on a wide, indeed extrapolated view of s 34(2) under its assignment of power to the Labour Board to “make an order requiring any party to the collective bargaining to do the things that in the opinion of the Board are necessary to secure compliance with Section 33”. The Board’s powers under s. 34(2) are limited to enforcing the obligations imposed on the parties under s. 33 and this limitation is not avoided by the use of the words “in the opinion of the Board”. The Board is entitled to form an opinion only with respect to what is “necessary to secure compliance with Section 33.”
The direction under s. 33(a) is simply to oblige the bargaining parties to meet and bargain collectively with one another and make every reasonable attempt to conclude and sign a collective agreement. Section 33(a) is a long way from justifying the kind of orders that are being sought in this case. Since it is recognized, although the Union and especially the Nova Scotia Federation of Labour are seeking a much wider appreciation that ss. 33(a) and 34 do not permit the imposition of terms of a collective agreement by a Labour Board order, the appeal fails in its main thrust and must be dismissed with costs against the appellant Union. There will be no costs against the Nova Scotia Federation of Labour. The reasons of Dickson and Wilson JJ. were delivered by
DICKSON J.—The issue is the extent of the remedial authority of the Nova Scotia Labour Relations Board in relation to a “failure to bargain” complaint.
I The Facts and the History of the Proceedings
The Canadian Union of Public Employees (“the union”) has been the certified bargaining agent of school bus drivers employed by the Digby Municipal School Board (“the school board”) since April 19, 1974. In 1978 the union and the school board were parties to a collective agreement which expired on December 31, 1978. The union gave a notice to bargain on September 12, 1978.
No agreement being forthcoming, the union commenced a legal strike on September 4, 1979. The next day the school board agreed to contract out its busing. On September 24, 1979 the union made a complaint to the Nova Scotia Labour Relations Board (“the Board”) alleging unfair labour practices on the part of the school board. By decision dated November 8, 1979, the Board concluded the school board had committed an unfair labour practice by offering union members contracts if they would leave their union. The school board was ordered to cease and desist. Those proceedings are not directly in issue in the present appeal.
The proceedings that do give rise to this appeal arose considerably later. In February, 1981, the strike was still in progress and the school board was continuing to supply busing services by use of contract drivers. On February 16, 1981, the Minister of Labour referred to the Board the union’s complaint that the school board had failed to comply with the duty to bargain contained in s. 33(a) of the Trade Union Act, 1972 (N.S.), c. 19: 33 Where notice to commence collective bargaining has been given…
(a) the certified bargaining agent and the employer… shall… meet and commence or cause authorized representatives on their behalf to meet and commence to bargain collectively with one another and shall make every reasonable effort to conclude and sign a collective agreement…
After extensive hearings the Board, in a decision dated July 31, 1981, concluded the school board had breached s. 33(a). That finding is not at issue. What is at issue is the remedial consequences, which eventually became the subject of a stated case. The factual basis on which the school board was held to have contravened s. 33(a) is essential background in determining the scope of the Board’s remedial powers. Unfortunately, the record from the Board is sparse. The following findings of fact, taken from the Board’s July 31, 1981 reasons and from additional findings of fact appended to the stated case, are of particular interest:
We specifically find that the Respondent School Board did not “make every reasonable effort to conclude and sign a collective agreement” and it is our opinion based upon their past conduct that unfettered they will not make the effort required in the opinion of the Board to fulfill the requirements of section 33 of the Trade Union Act.
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We find that the School Board’s behaviour throughout the collective bargaining can be characterized as a charade of appearing to engage in proper bargaining when it had no intention of concluding any agreement. We find that the School Board in all its proposals attempted to destroy the security of the union.
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We find that the purpose of the School Board in contracting out the normal work of the bus drivers was to avoid reaching a collective agreement.
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In the opinion of the Board, although the School Board and particularly its negotiator, Robert Street, put forth that the actions of the School Board fell within the area of “hard bargaining” it cannot consider as reasonable their insistance that the Union lose all rights to Union security enjoyed over the whole period that the parties have been under contracts. Nor can it consider reasonable that the School Board should require the Union to “earn” the right to any Union security in the future.
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Just prior to the conclusion of the hearings it was understood that the representatives of the parties individually agreed to recommend a common proposal worked out in the presence of the Board to their respective groups for acceptance. The School Board negotiating committee materially altered this proposal in their own consideration and agreement was not accomplished.
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During hearings which commenced in March, 1981, and which were adjourned on several occasions to permit negotiations between the parties, the settlement of th