Saskatchewan Mutual Insurance Company Appellant (Applicant) v. United Steel, Paper and Forestry,, 2021 SKCA 137

Court of Appeal for Saskatchewan Docket: CACV3659 Citation: Saskatchewan Mutual Insurance Company v United Steel,Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrialand Service Workers International Union, Local 8933, 2021 SKCA 137Date: 2021-10-21 Between:Saskatchewan Mutual Insurance CompanyAppellant (Applicant)AndUnited Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 8933and Saskatchewan Labour Relations BoardRespondents (Respondents)Before: Ottenbreit, Caldwell and Tholl JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr.

Justice OttenbreitIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Tholl On appeal from: 2020 SKQB 149, SaskatoonAppeal heard: March 10, 2021 Counsel: Kevin C. Wilson, Q.C. for the Appellant Heather M. Jensen for the Respondent, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,Allied Industrial and Service Workers International Union, Local 8933 No one appearing for the Saskatchewan Labour Relations Board Ottenbreit J.A. I.

INTRODUCTION [1] Saskatchewan Mutual Insurance Company [SMI] appeals the decision of a Court of Queen’s Bench Chambers judge datedMay 20, 2020 (Saskatchewan Mutual Insurance Company v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, AlliedIndustrial and Service Workers International Union Local 8933, 2020 SKQB 149, 56 CLRBR (3d) 153 [Chambers Decision]), dismissingits application for a judicial review of a ruling made by the Saskatchewan Labour Relations Board [Board] dated April 5, 2019 (UnitedSteel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 8933 vSaskatchewan Mutual Insurance Company, [LRB Decision]). [2] In the LRB Decision, the Board ruled in favour of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,Allied Industrial and Service Workers International Union, Local 8933 [Union], finding SMI had committed an unfair labour practice indesignating a new IT supervisor position [new position] created by SMI to be outside of the scope of the bargaining unit.

The Boardordered that the new position would remain in-scope unless the parties negotiated a different result. [3] The resolution of this appeal, and the issue of whether the Chambers judge erred, turns on the

interpretation of several Boarddecisions which state that an employer governed by a certification order when creating a new position cannot do so unilaterally and mustobtain the agreement of the union or a Board order allowing it to do so. [4] For the reasons hereinafter set forth, I would allow the appeal. II. FACTS AND BACKGROUND [5] SMI is an insurance company operating in Saskatchewan. The Union represents in-scope employees of SMI and has along-standing relationship with it. The predecessor union to the Union was certified as SMI’s employee bargaining agent by a certificationorder made on November 4, 1970.

This certification order stated that all employees of SMI were an appropriate unit for the purposes ofcollective bargaining. It also contained exclusions of both specific positions and, relevant to this appeal, exclusions for employees who fellinto a managerial or confidential category. [6] Over time, the parties negotiated additional exclusions to the bargaining unit which are not reflected in the certification order.These exclusions are contained in a collective bargaining agreement [CBA] governing the parties’ relationship covering the period of June1, 2011, to May 31, 2016.

The exclusions relevant to this appeal are found in the “scope” clause of the CBA and include employees actingin a managerial or confidential capacity, as well as the categories of managers and supervisors.

[7] After the CBA expired, the parties moved to negotiate a revision thereof. During such negotiations, in mid-February of 2017,SMI created and posted the new position and declared it to be out-of-scope of the bargaining unit. The Union apparently did not object orat least made no complaint at the time. [8] Some time later, the Union alleged the new position was improperly declared out-of-scope by SMI and disagreed with SMI’scharacterization of it as managerial or otherwise out-of-scope of the bargaining unit.

On March 24, 2017, the Union made an application tothe Board alleging that SMI had committed an unfair labour practice in creating the new position and declaring it to be out-of-scope in theabsence of an agreement or order of the Board to that effect. III. THE LRB DECISION [9] The Union’s unfair labour practice application alleged that: (

a) SMI unilaterally and improperly designated the new position as out-of-scope and thereby failed to bargain collectively withthe Union in respect of the position; (

b) None of the duties of the new position were managerial or confidential in nature and therefore not out-of-scope; (

c) SMI created the new position for an improper purpose; and (

d) The statutory exclusion of supervisory employees did not apply and, in any event, the new position did not meet the definitionthereof in The Saskatchewan Employment Act, SS 2013, c S-15.1 [SEA]. [10] SMI opposed the Union’s application on the following bases: (

a) There was no need to consult with or bargain with the Union on the designation of the new position because the bargainingunit was not an all-employee unit and because the new position was excluded from the bargaining unit by the scope clause of the CBA; (

b) Alternatively, the nature of the new position was truly managerial, confidential or supervisory and, thus, was excluded fromthe bargaining unit; and (

c) Alternatively, the Union was estopped from bringing the application because it had represented to SMI on more than oneoccasion that it did not take issue with the new position being out-of-scope. [11] The Board first reviewed the evidence called by the parties at the hearing, a substantial portion of which concerned the natureof the position that was created and the duties associated therewith.

The Board also reviewed the relevant statutory provisions and thepositions and arguments of the parties. [12] The Board concluded that it had the jurisdiction to address the issues raised by the parties: [58] In the present case, the Board has jurisdiction to consider the Unfair Labour Practice Application before it. To decide whether theEmployer failed to bargain, this Board must decide whether the Position was already excluded from the bargaining unit, such that theEmployer has no obligation to bargain. The Board also has jurisdiction to consider whether the individual is an employee pursuant toclause 6-104(2)(

i) of The Saskatchewan Employment Act. [13] The Board then observed that the Battlefords principle governed the Union’s application. The Battlefords principle flows fromseveral decisions of the Board, such as Saskatchewan Joint Board, Retail, Wholesale and Department Store Union, Local 544 vBattlefords and District Co-operative Limited, (Sask LRB) [Battlefords] and Re: Wascana Rehabilitation Centre,[1991] 3d Quarter Sask Labour Rep 56, LRB File No 234-90 [Wascana Rehab Centre].

The Battlefords principle provides that newlycreated positions in an all-employee bargaining unit remain within the bargaining unit unless excluded by an order of the Board or byagreement of the parties. [14] In more detailed terms, the Battlefords principle describes two methods whereby an employer can exclude a position from anall-employee bargaining unit, namely, (1) through the process of collective bargaining, and (2) if attempts at bargaining fail, by applyingfor an amendment to the certification order pursuant to the relevant provisions of what is now the SEA. [15] The Board set forth how the Battlefords principle applies in relation to an allegation of an unfair labour practice: [62] An employer is not entitled to act unilaterally by excluding positions.

Therefore, in the absence of the aforementioned steps, aposition remains in-scope. The employer commits an unfair labour practice by placing a newly created position out-of-scope of an all-employee bargaining unit. [16] The Board then turned to SMI’s argument that because both the certification order and the scope clause of the CBA listedcertain excluded positions, the bargaining unit was not an all-employee unit. It found, as follows: [64] We disagree. The label “all-employee bargaining unit” is a term of art if not a perfect description.

Certification orders and scopeclauses commonly refer to “all employees” of an employer “except for” specified positions. The enumeration of excluded positions doesnot transform an all-employee bargaining unit into something other than an all-employee bargaining unit. [17] The Board observed that in all-employee bargaining units, the certification order lists exclusions, not inclusions.

In this way,all-employee bargaining units protect bargaining rights by placing the onus on the employer to apply to exclude a position from the unit.The Board concluded that both the terms of the certification order and the terms of the scope clause of the parties’ CBA pointed to theexistence of an all-employee bargaining unit in this case.

[18] The Board found that the Battlefords principle therefore applied to the new position in that it required SMI to negotiate itsexclusion from the bargaining unit or obtain an amendment to the certification order.

SMI had admitted it never specifically bargained forthe exclusion of the new position and, in the absence of an amendment to the certification order, the Board therefore concluded SMI hadcommitted an unfair labour practice with respect to posting the new position. [19] The Board also addressed SMI’s argument that the new position was out-of-scope because it fell into the “category” ofsupervisor, which is excluded from the bargaining unit by the parties’ CBA.

That is, SMI had asserted that the parties had alreadybargained the exclusion of the new position and there was no obligation to bargain again. [20] The Board determined: [82] The IT Supervisor is a newly created position. The Position was not in existence when the Certification Order was made or whenthe exclusion was being negotiated in the Scope Clause. [83] The Position has not been excluded through the process of collective bargaining.

While the Employer says that the negotiatedScope Clause “conclusively governs which positions are considered in and out of scope”, the Board finds that it does not conclusivelygovern a supervisor position that was not in existence at the time of ratification.

To allow the Employer to unilaterally attach the“Supervisor” label to a position and place it out-of-scope would substantially erode the well-established principle in Battlefords. [21] The Board found that prior negotiation of an excluded category did not make the Battlefords principle inapplicable and thatSMI could not unilaterally designate the new position as part of that category. [22] The Board then turned to SMI’s argument that the Union was estopped from challenging the out-of-scope designation of thenew position because Neil Vogel, who was the Union’s recording secretary, a member of the bargaining committee and the incoming vicepresident of the Union’s local, was speaking for and bound the Union when he did not object to the creation of the new position or itsdesignation as out-of-scope. [23] The Board concluded that the Union did not express an assurance or promise not to rely on its right to negotiate the creation ofnew positions through the words and actions of Mr.

Vogel or anyone else representing it, and there was no promise or assurance not to relyon the steps required by Battlefords. [24] The Board next addressed SMI’s submission that the new position should be excluded from the bargaining unit because itfailed to meet the definition of “employee” under s. 6-1(h)(

i) of the SEA. The Board observed that, in the case of the creation of a newposition, SMI was required in the normal course to apply to amend the certification order if it alleged a new position fell outside thatdefinition and it had failed to do that. [25] The Board concluded that making a determination of the definition of employee in the absence of an acknowledgment by SMIof its duty to negotiate or any history of negotiation or attempt to negotiate in relation to the newly created position would be an improperbypass of collective bargaining between the parties based on the Battlefords principle.

Accordingly, the Board did not determine whetherthe position fell into one of either the managerial or confidential exclusions contained in the SEA. [26] The Board then turned to SMI’s argument that the new position was supervisory in nature as defined pursuant to s. 6-1(1)(

o) ofthe SEA and was thereby excluded from the bargaining unit. The Board reviewed s. 6-11(3), which states that the Board shall not includein a bargaining unit any supervisory employees.

The Board determined that s. 6-11(3) applies only in the case of an application for acertification order or upon an application respecting a raid of a portion of a unit and neither of those situations existed in this case.Moreover, the Board noted that even if the new position met the definition of “supervisory employee”, the position would still have to benegotiated pursuant to the Battlefords principle. [27] In the result, the Board found that SMI had committed an unfair labour practice in treating the new position as out-of-scopewithout first negotiating the agreement of the Union or obtaining an order from the Board.

The Board therefore structured a remedy that,in its words, returned “the parties to the status quo ante” by requiring them to negotiate (at para 118, citing United Food and CommercialWorkers, Local 1400 v Calokay Holdings Ltd., (Sask LRB) at para 141). It ordered that the new position was to bewithin the scope of the bargaining unit and to remain so unless the parties negotiated a different result or until further order of the Boardexcluded the position. IV.

DECISION OF THE CHAMBERS JUDGE [28] SMI applied to a Court of Queen’s Bench Chambers judge for judicial review of the LRB Decision. [29] The parties agreed that the applicable standard of review was reasonableness. The Chambers judge nevertheless reviewedCanada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] and the explication of thoseprinciples in cases decided thereafter, and confirmed that the reasonableness standard applied.

He then turned to issues raised by theparties. [30] He considered first whether the Board had unreasonably held that the new position was not already excluded under the CBA’sscope clause.

He reviewed SMI’s submissions that the bargaining unit in issue was not an “all-employee” bargaining unit and that theBoard had misapplied the Battlefords principle. [31] He determined the Board had fully explained its reasoning that the certification clause described an all-employee bargainingunit and that, because of this determination, the onus was therefore on SMI to either negotiate an exclusion for the new position with theUnion or to bring an application to amend the certification order granting the exclusion.

He noted that SMI had failed to do either. [32] The Chambers judge found that the Board’s approach on this was not unreasonable nor was it arbitrary and, therefore, he could

not disturb the Board’s finding that an unfair labour practice had been committed. [ 33 ] The Chambers judge turned to SMI’s alternate assertion that the Board had misapplied the Battlefords principle . He noted that SMI had argued that it had satisfied any duty to bargain due to the existence of the wording of

article 1.01 of the CBA, which already excluded supervisors as a category of employees from the bargaining unit. [ 34 ] The Chambers judge observed that the Board had found there was no actual bargaining with respect to the new position after it was posted. He found the Board’s decision that there should have been such bargaining to be reasonable in terms of both reasoning and conclusion.

He again noted that the Board had explained its reasoning and that the new position did not exist either at the time of the original certification order nor when the CBA’s scope clause was discussed. [ 35 ] The Chambers judge adopted the Board’s approach that, “[t]o allow [SMI] to unilaterally attach the ‘Supervisor’ label to a position and place it out-of-scope would substantially erode the well-established principle in Battlefords ” ( Chambers Decision at para 39; LRB Decision at para 83 ). [ 36 ] The Chambers judge considered the Board’s ruling and reasoning on the issues of whether the Union was estopped from challenging the new position was out-of-scope and whether it was managerial, confidential or supervisory in nature.

He found it to have been methodical and reasonable within the meaning of the principles enunciated in Vavilov . [ 37 ] The Chambers judge concluded the Board’s remedy that the new position would remain in-scope unless the parties negotiated its exclusion from the bargaining unit was reasonable and did not exceed its jurisdiction given the applicability of the Battlefords principle . [ 38 ] He therefore dismissed SMI’s application. V. ISSUES [ 39 ] SMI raises a number of issues in this appeal.

However, the determination of this appeal and of whether SMI committed an unfair labour practice turns on only one issue, reframed as follows: did the Chambers judge err by concluding the Board’s analysis and application of the Battlefords principle was reasonable? VI. ANALYSIS [ 40 ] The parties agree that the Chambers judge correctly employed the reasonableness standard of review as explained in Vavilov . It is common ground that the decision of the Chambers judge is reviewable by this Court on a correctness standard. A.

Did the Chambers judge err by concluding the Board’s analysis and application of the Battlefords principle was reasonable? [ 41 ] To begin, it is worthwhile to set out the wording of the governing certification order and scope clause of the CBA. The relevant portion of the certification order states: The Labour Relations Board […] hereby makes an order: (

a) Determining that all employees of the Saskatchewan Mutual Insurance Company, except the general manager, secretary-treasurer, chief accountant, private secretary to the general manager, private secretary to the chief underwriter, claims manager, chief underwriter, inspectors and a person having and regularly exercising authority to employ or discharge employees or regularly acting on behalf of management in a confidential capacity, employed in the City of Saskatoon, in the Province of Saskatchewan are an appropriate unit of employees for the purpose of bargaining collectively. (Emphasis added) [ 42 ] The scope clause of the parties’ CBA reads as follows: 1.01 This Agreement shall apply to all employees of the Saskatchewan Mutual Insurance Company, employed in the City of Saskatoon, in the Province of Saskatchewan, except as stated in Clause 2.

The words “Employee” or “Employees” where used in this Agreement, shall mean any person or persons covered by this Agreement. 1.02 Excluded from this Agreement shall be any person whose primary responsibility is to actually exercise authority and actually perform functions that are of a managerial character, any person who is an integral part of the Company’s management or any person who is regularly acting in a confidential capacity in respect of the industrial relations of the Company - and - President & C.E.O.

Claims Adjusters Vice Presidents Marketing Reps Managers Payroll & Benefits Administrator Supervisors Broker Services Coordinator Corporate Secretary [ 43 ] Both parties agree that the Battlefords principle was key to the Board’s decision that SMI had committed an unfair labour

practice. However, SMI submits that the Battlefords principle does not apply at all because the governing certification order and the CBAdo not establish an all-employee bargaining unit. Additionally, SMI argues that, even if the Battlefords principle does apply, the Board didnot apply it appropriately. I will address these submissions in turn. [44] First, SMI submits the Chambers judge erred in affirming as reasonable the Board’s decision that the type and large number ofexclusions in the scope clause of the parties’ CBA did not preclude the bargaining unit being an “all-employee” unit.

I find this argumentmust fail. [45] The Board pointed out that the terms of the certification order, as well as the terms of the scope clause of the CBA, clearlystated that all employees of SMI are members of the bargaining unit subject only to certain exclusions. It determined that the presence andnumber of exclusions from the bargaining unit did not convert it into something other than an all-employee unit: [71] In all-employee bargaining units, the certification order lists exclusions, not inclusions.

In this way, all-employee bargaining unitsprotect bargaining rights by placing the onus on the employer to apply to exclude a position from the unit. In comparison, the“enumerative or classification” approach lists inclusions, not exclusions. In this latter approach, the Union would historically have had tobring an application to the Board whenever it wished to place a position in the bargaining unit.

Now, in the context of all-employeebargaining units, the “only time an application to the Board is required is when the employer wishes to have a new position excluded”.The exclusion of a position does not transform a bargaining unit into something other than an all-employee bargaining unit. [46] The Chambers judge found the Board had reasonably approached and fully explained this issue, and its conclusion thereon, onthe basis of the inclusion/exclusion dichotomy.

He was correct to do so. [47] SMI next submits, as it did before the Board and the Chambers judge, that even if the bargaining unit is an all-employee unit,the Board misapplied the Battlefords principle.

It argues that the Board unreasonably failed to recognize that negotiated modifications tothe scope clause excluding the category of supervisors satisfied the Battlefords requirement to bargain the exclusion of the new position.SMI submits that, in affirming the Board’s dismissal of this argument as reasonable, the Chambers judge erred. [48] While I am not satisfied that a negotiated exclusion in a scope clause relieved SMI from the obligation to undertake furthernegotiations with respect to the new position, I conclude that the Chambers judge erred by finding the Board’s application of theBattlefords principle in the circumstances of this case to be reasonable. [49] In determining whether an unfair labour practice occurred, the Board placed significant emphasis on the fact that the newposition was not covered by the existing scope clause nor was it specifically excluded by a Board order.

In doing so, the Board failed toadjust the application of the Battlefords principle to take into account the modifications made to the scope of the bargaining unit by theparties in the CBA. This failure ultimately led to an unreasonable analysis and conclusion regarding the issue of whether SMI hadcommitted an unfair labour practice. I will explain. [50] The parties’ negotiations with respect to the exclusions must be accorded some effect if the principle of collective bargainingthat Battlefords seeks to protect is to be given substantial weight.

The prior negotiation of an excluded category goes part way to satisfyingSMI’s obligation to bargain the scope of the new position pursuant to the Battlefords principle. [51] The content and extent of SMI’s duty to bargain pursuant to the Battlefords principle for the purposes of determining whetheran unfair labour practice has occurred must be assessed in the context of the prior negotiation of the excluded category and the behaviourof the parties after the posting of the position.

I say this because, taken on its face, the parties had agreed in their CBA that positionscreated by SMI that fell within the parameters of a category of excluded positions were not part of the bargaining unit. Put another way, ifSMI created a position that fell within those parameters, then the parties had already agreed such a position is excluded. [52] The Battlefords principle applied in such circumstances is not as simple as saying that the failure to actively negotiate thespecific exclusion of the new position resulted in an unfair labour practice.

To explain why, it is necessary to review the genesis andapplication of the Battlefords principle and the effect of a bargained exclusion to an all-employee scope clause. [53] In Battlefords, the Board affirmed the approach adopted in Wascana Rehab Centre, Service Employees International Union,Local 333 v St. Paul’s Hospital, [1991] 2d Quarter Sask Labour Rep 78, LRB File No 004-91, and Donovel v Saskatchewan Joint Board,Retail, Wholesale and Department Store Union, (Sask LRB) [Donovel].

Donovel set out the process to be followedwhen a new position was created. [54] In the LRB Decision, the Board summarized the process in Donovel as follows: [60] In Saskatchewan Joint Board, Retail, Wholesale and Department Store Union, Local 496 v Beeland Co-operative AssociationLimited, (SK LRB) (“Beeland”), the Board confirmed the process required to be followed. In Beeland, the Board citedHealth Sciences Association of Saskatchewan v Unifor, Local 609, (SK LRB), at paragraph 22: The required steps were clearly set out by the Board in its decision in Donovel (Re).

At paragraph 28, the Board outlined those steps asfollows: 1. Notify the certified union of the proposed new position; 2. If there is agreement on the assignment of the new position, then no further action is required unless the parties wish to update thecertification order to include or exclude the positions in question; 3. If agreement is not reached on the proper placement of the position, the employer must apply to the Board to have the matterdetermined…; and 4.

If the position must be filled on an urgent basis, the employer may seek an interim or provisional ruling from the Board or agreementfrom the union on the interim assignment of the position. [citation removed]

[55] Battlefords has been understood to stand for the proposition that an employer cannot act unilaterally by determining that a newposition lies outside the scope of an all-employee bargaining unit.

It must negotiate with the union on the matter and, if it fails to acquirethe union’s agreement, then it must apply to the Board to determine the matter. [56] The Board in Battlefords elaborated on the duty incumbent on the parties: [85] The duty to bargain collectively requires that the parties meet and bargain in good faith, making a genuine attempt to find a resolveto their disagreement over the status of this position. However, the duty to bargain collectively does not, as a corollary, require that theparties reach an agreement.

They must only try to achieve a resolve to their disagreement. [57] Battlefords has been cited in 14 decisions of the Board (including the decision in this matter).

See: Saskatchewan MutualInsurance Company v United Steel, (Sask LRB); Saskatoon Co-operative Association Limited v United Food andCommercial Workers, (Sask LRB); Saskatoon Public Library Board (Saskatoon Public Library) v Canadian Union ofPublic Employees, (Sask LRB); SEIU-West v Saskatoon Twin Charities Inc. (City Centre Bingo), (Sask LRB); United Food and Commercial Workers, Local 1400 v Moose Jaw Co-operative Association, (SaskLRB); Regina (City) v Regina Civic Middle Management Association, (Sask LRB); Legal Aid Saskatchewan (Re)(2018), 25 CLRBR (3d) 1 (Sask LRB); Saskatchewan Joint Board, Retail, Wholesale and Department Store Union, Local 496 v BeelandCo-operative Association Limited, (Sask LRB); Saskatchewan Polytechnic v Saskatchewan Government and GeneralEmployees’ Union, (Sask LRB); Saskatchewan Polytechnic v Saskatchewan Government, (SaskLRB), Wheatland Regional Centre Inc. (Re) (2015), 270 CLRBR (2d) 234 (Sask LRB); Health Sciences Association of Saskatchewan vUnifor, Local 609, (Sask LRB); and Unifor Canada, Local 594 v Consumers’ Co-Operative Refineries Limited, (Sask LRB). [58] In none of these decisions was the Board faced by a situation as in this case, where the parties had agreed in a CBA to exclude aclass or category from the bargaining unit and the employer created a new position which prima facie appeared to fall into the excludedcategory. [59] SMI submits that it and the Union were free to expand or reduce the scope of the bargaining unit through the CBA and that, inany event, the certification order was “spent” once a CBA was negotiated.

It argues that when they amended the scope of the bargainingunit in the CBA, it was as if the Board had modified this scope and therefore its duty to negotiate the new position as required byBattlefords had been fulfilled with respect to the new position. [60] To assess this part of SMI’s argument, it is necessary to determine the effect of the parties’ negotiation of the scope clause inthe CBA on the certification order. [61] A useful starting point is Laskin C.J.C.’s dissent in Beverage Dispensers & Culinary Workers Union, Local 835 v Terra NovaMotor Inn Ltd. (1974), (SCC), [1975] 2 SCR 749 at 753 [Terra Nova], wherein he stated that “once a collectiveagreement is negotiated the certificate has served its purpose and is, for all practical purposes, spent”.

This portion of Laskin C.J.C.’sdissent was adopted in Saskatchewan in S.G.E.A. v Saskatchewan (Liquor Board), [1981] Sask Labour Rep 37, LRB File No 256-80[S.G.E.A.], and reproduced in S.G.E.U., Re (2001), 73 CLRBR (2d) 1 at para 67 (WL) (Sask LRB) [S.G.E.U.].

The relevant portion ofS.G.E.U. notes that in S.G.E.A., the certification order had been amended by putting certain employees out-of-scope and the amendmentwas effective as a result of the collective bargaining process and the ensuing collective agreements. [62] Further, in S.G.E.A., the Board determined that there are two exceptions to the general rule that a certification order will beamended by a subsequent CBA: where the Board concludes that the bargaining unit agreed to by the parties is not an appropriate unit andwhere the agreed upon unit violates the right of employees to be represented by a union. [63] Wesley B.

Rayner, Canadian Collective Bargaining Law: Principle and Practice, 3d ed (Toronto: LexisNexis, 2017) at 400–401, notes that a scope clause or recognition clause may replicate a certification order or it may vary it, and when it does vary thecertification order, the scope clause will govern. Rayner notes that a scope clause carries significant weight because it “may help todetermine whether that bargaining unit grows or expands to other elements of the employer’s business in the future” (at 401).

I would readthis as supporting the approach that the potential future additions to the bargaining unit and, correspondingly, future employees added asout-of-scope employees, are effectively governed by the scope clause in the CBA and not by the certification order. [64] George W. Adams, Canadian Labour Law, loose-leaf (Rel 80, December 2020) 2d ed, vol 2 (Toronto: Thomson Reuters, 2020)at para 12.490, notes that in Ontario, for example, a certification order is effectively spent once the parties “have given a more detailedmeaning and expression to the description in the negotiation of a collective agreement”.

Support for this proposition was drawn fromTerra Nova and T.W.U. v British Columbia Telephone Co., [1978] 2 CLRBR 387. [65] Further support may be found in Kindersley and District Co-operative Ltd. v Retail, Wholesale and Department Store Union(1998), (SK CA), 172 Sask R 114 (CA). In that case, Vancise J.A. dismissed the appeal and upheld the ruling of theChambers judge that it was beyond the jurisdiction of the Board to order that an amended certification order ought to supersede the scopeclause in the collective bargaining agreement.

The issue was whether the Board had the power to order that the new employees be subjectto the existing collective bargaining agreement.

This case stands for the proposition that the scope clause of a CBA effectively amends acertification order of the Board for the purpose of the parties’ dealings. [66] The Federal Court of Appeal implicitly referenced this concept in Piedmont Airlines Inc. v United Steel Workers of America,2003 FCA 154 at para 47, 303 NR 40, where the Court stated that “[u]nlike provincial labour boards, the [Canada Industrial Relations]Board does not regard the certification order as spent once the first collective agreement is made and the parties redefine the bargainingunit” (emphasis added). [67] A useful

interpretation of the line of cases describing the effect of a certification order once the parties have concluded a CBAis also found in Nova Scotia Government and General Employees Union v Metro Community Living Support Services Ltd., 2017 NSCA 15at para 28, 411 DLR (4th) 131, where the court restored the provincial Board’s decision that, while the precise wording of the certification

order is spent, in those circumstances the collective bargaining relationship that the order spawned continues to operate. [68] The matter was also addressed in C.U.P.E., Local 88 v St.

Elizabeth’s Hospital (1996), (SK KB), 145 Sask R201 (QB) at para 14, where the Court upheld the Board’s finding of a certification order as being spent where there has been explicitalteration of the certification order. [69] This issue also arose in Interprovincial Concrete Ltd. v Construction & General Workers’ Union, Local 890 (1989), (SK LA), 6 LAC (4th) 137 (WL) (Sask Arb) at para 24, wherein a Saskatchewan arbitration board noted that parties are notonly entitled to enlarge the scope of the certification order in their CBA, but should be encouraged to do so. The board quoted SaultSte.

Marie Board of Education v C.U.P.E., Local 2165 (1974), (ON LA), 5 LAC (2d) 179 (Ont Arb), which alsoaffirmed that a CBA supersedes a certification order but that the parties are free to incorporate the certification order itself into thecollective agreement, allowing the certification order to continue to govern. [70] The Canadian Industrial Relations Board in I.B.E.W., Local 1574 v NorthwesTel Inc., 2003 CIRB 226 [I.B.E.W.], offered somehelpful comments regarding the effects of a scope clause.

The tribunal was asked to determine whether certain newly created positions fellwithin the scope of the bargaining unit. It stated: [37] It should be recalled that since the [Canada Labour Code, RSC 1985, c L-2] seeks to extend the fruits of collective bargaining toall employees, agreements to exclude employees from collective bargaining cannot be taken to be of indefinite duration nor to beapplicable if the relevant employees wish to be represented in bargaining.

If circumstances or the wishes of affected employees havechanged or evolved or if simply the passage of time requires that the situation of relevant employees be revisited and there is no longeragreement between the employer and the bargaining agent with respect to the exclusion of employees falling within the scope of a definedbargaining unit and otherwise entitled to the benefits of collective bargaining, the situation of the relevant employees must bereconsidered. Here, the present Board has considered the relevant job descriptions.

Here the four relevant positions could potentially, asemployees, be entitled to the fruits of collective bargaining.

However, the employer has shown, based on the agreement of 1998, that therelevant positions, as a continuation or combination of, or because of their similarity or relationship to previously excluded positions, orbecause of the terms of the May 25, 1998 agreement, do not fall within the intended scope of the present bargaining unit. (Emphasis added) [71] While the Board in I.B.E.W. was not dealing with an employer’s duty to bargain with respect to the creation of new positions,some relevant factors to consider in determining the impact of a scope clause may nevertheless be inferred.

First, there is a preference toallow employees the right to collectively bargain and it is against this preference that employer actions and scope clauses must bemeasured. Further, the scope clause and employer actions must be evaluated in light of the relevant circumstances. Where the parties haveconsistently interpreted and applied a scope clause, then it ought to be more likely that newly created positions that ostensibly fall withinthat

interpretation were properly classified. As a corollary to this, the scope clause must be sufficiently precise, or applied with sufficientprecision by the parties, to permit an employer to rely upon it.

Finally, the similarity of the newly created positions to those previouslyexcluded ought to inform whether or not an employer has breached its duty to bargain with the union. [72] Given the foregoing, a CBA scope clause that is negotiated after the issuance of a certification order defines the parameters ofwhat may be excluded in the future from the bargaining unit and the categories of new positions that may be populated by the employer.The scope clause and the exclusions therein inform the parameters within which the parties must continue to bargain when a new positionis created purporting to be captured by the exclusion.

Put another way, the scope clause in the CBA governs the duty to collectivelybargain new positions and the extent of that duty. [73] In the case of a previously negotiated exclusion of a category, the parties have already collectively bargained the employer’sright to create positions within that category. They have agreed that a certain category of positions are excluded from collectivebargaining. The parties, through the process of collective bargaining, have established a framework against which future positions createdby the employer may be classified.

In such a case, the content left to be negotiated is “the proper assignment of the work and the position”(Donovel at para 28). [74] The implications of such an approach are that it cannot be said that the employer, by purporting to create a position within theexclusion, has done so unilaterally. The employer is entitled by virtue of the prior negotiated excluded category to create a position that itclaims to be within the category. The parties do not have to negotiate that aspect again.

I say this because the negotiated exclusion musthave some meaning and the collective bargaining undertaken by the parties to get to that result must be respected. [75] Based on all the foregoing, I conclude that the existence of excluded categories in a scope clause allows an employer to create anew position that purports to be within those exclusions without bargaining again its right to do so.

The Battlefords principle musttherefore be reinterpreted in light of that collectively bargained reality. [76] That said, the duty to bargain in respect of the new position has not been fulfilled, as argued by SMI, merely because anexcluded category of positions has been collectively bargained and a new position is created. The Battlefords principle applied to asituation such as this imposes on SMI a duty for further collective bargaining in respect of whether the new position actually falls into theexcluded category.

This follows directly from the fact of the parties’ previous bargaining in respect of the category. [77] It may be that the position is out-of-scope, but until such an agreement or determination is made, the Union is entitled tobargain collectively with respect to whether the new position falls within the exclusion.

It is not for the employer to definitively determinewhether a new position is or is not within the category of positions so excluded. [78] To the extent the Board dismissed SMI’s submission that it need not bargain the new position at all, its conclusion wasreasonable and in keeping with Battlefords, and the Chambers judge was correct to so find. [79] However, the Board failed to appreciate that where a new position that purports to fall into an excluded category is created, itscreation is not necessarily unilateral and the parties have already gone part way to satisfy the requirement of the Battlefords principle thata new position must be collectively bargained.

As a result, the Board’s approach to the measure of whether the duty to bargain collectively

had been met in this situation and whether there existed an unfair labour practice was driven solely by its inflexible

interpretation of Battlefords . That resulted in its unreasonable conclusion that SMI could not even create a position purporting to be within the exclusion without prior negotiation.

By approaching the matter this way, the Board unreasonably ignored the effect of the scope clause of the parties’ CBA, instead focusing on the fact that the certification order had not been amended to include the new position and the bargained exclusion. [ 80 ] The Board appears to have justified its decision that all aspects of the new position must be negotiated by noting that there was no Board order excluding supervisors from the bargaining unit and the new position was the first and only IT supervisor in the company, as well as the only supervisor position in the IT department.

Given my analysis above, this justification is unreasonable. It disregarded the fact that the parties had negotiated the prior exclusion for supervisors. [ 81 ] The Board also interpreted Battlefords to mean that all the negotiations with respect to the position had to take place prior to SMI posting or creating the position. I say this because the Board noted at paragraph 76 of its decision that SMI had acknowledged that no negotiations had taken place specifically about the position and, therefore, it was unnecessary to determine whether negotiations had taken place after the new position was posted.

This failed to recognize that SMI had already negotiated the excluded category.

The Board’s focus to determine if SMI had committed an unfair labour practice should have been on the circumstances after the new position was posted and the interactions of the parties thereafter. [ 82 ] While, as noted in Battlefords at paragraph 86 , the Board does not minutely assess engagement in the bargaining process, SMI has created a position that purports to be within the excluded category and the circumstances of the situation and interaction of the parties may play a significant role in determining whether the duty to bargain has been fulfilled. [ 83 ] What is required is a genuine attempt by both parties to resolve their disagreement.

The duty to bargain collectively does not, as a corollary, require that the parties reach an agreement. They must only try to achieve a resolution to their disagreement . [ 84 ] For the purposes of determining whether an unfair labour practice has occurred, the wording of the CBA and the status and duties of the new position informs what constitutes a genuine attempt to bargain.

The tipping point on whether the duty to bargain has been fulfilled in all the circumstances may, for example, be different in cases where the exclusion is broadly framed and/or the new position does not prima facie appear to fall within the exclusion or vice versa.

Whether there has been a genuine attempt by the employer to fulfill the duty to bargain, especially where a new position prima facie appears to fall within a previously bargained exclusion, is informed by the conduct of the parties after the employer purports to create the position within the exclusion. [ 85 ] It appears that SMI communicated to the Union the reasons for the creation of the new position. It had also communicated its terms.

It is perhaps understandable that, in the absence of an immediate challenge by the Union to the designation of the new position in the supervisor exclusion, SMI believed that there would be no issue in that regard. I do not here suggest that the Union was in any way estopped from later challenging the matter. The Board’s finding that there was no estoppel goes to the issue of whether an agreement with regard to the designation of the new position had been concluded.

However, that misses the point. [ 86 ] Apart from the matter of estoppel, the fact that the designation was not immediately challenged, and what SMI did or did not do in that context, is a factor that bears on whether SMI’s duty to bargain the new position as legitimate within an exclusion was fulfilled for the purpose of determining whether there was an unfair labour practice. [ 87 ] While touching on the evidence of the parties’ dealings in respect of the issue of estoppel, the Board unreasonably failed to consider that evidence in respect of SMI’s duty to bargain in the context of the negotiated excluded category.

This occurred because it relied on its inflexible and unreasonable

interpretation of the Battlefords principle , as explained above . [ 88 ] The Chambers judge accepted that the Board’s application of the Battlefords principle was reasonable. As a result, he also accepted that the Board’s finding of an unfair labour practice was reasonable. In this, he erred for the reasons set out above. The Board’s finding of an unfair labour practice must be set aside as unreasonable.

The matter must therefore be remitted to the Board for redetermination in accordance with this decision. [ 89 ] Before concluding, I will comment, in a cursory way only, on the Board’s decision that it need not determine the issue raised by SMI that the new position was, on the evidence, excluded from the bargaining unit because it either fell within the exclusions negotiated in the parties’ CBA or because it was excluded by virtue of exclusions within the SEA . In view of my decision to remit the matter to the Board, I need not go into the specific details of the Board’s analysis of why it did not do so.

Suffice it to say that the Board’s restrictive view of Battlefords in the circumstances of this case as explained above coloured its analysis of this issue as well. VII. CONCLUSION [ 90 ] The decision of the Chambers judge is set aside. The decision of the Board is quashed in its entirety. The matter is remitted to the Board for redetermination. SMI shall have its costs in the matter in the usual way. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Tholl J.A.” Tholl J.A.