The bargaining relationship between the employer and its workers had existed for six years. A first collective agreement was negotiated a year after the union was certified, but despite its acceptance by management and the union’s executive board, the union membership refused to ratify it. Collective bargaining resumed, and a lack of progress led to the appointment of a federal conciliation commissioner a year later. The commissioner’s report was released after six months of investigation, but both parties disagreed with different recommendations in the report and were reluctant to accept it as the framework for a new collective agreement. 

However, the parties then became aware that the federal government was prepared to legislate a collective agreement if they could not agree on one themselves, and thus they returned to bargaining with greater motivation to finish.

A collective agreement was concluded and ratified four months after the commissioner’s report was released, and its term ran for two years. Since the agreement took effect, two significant changes had occurred in the parties’ relationship. The workers remained in the same bargaining unit, but had affiliated themselves as a local of a larger national union. Also, the employer was no longer part of the federal government and had become a private sector organization.

However, the bargaining relationship between the parties was still regulated by the same federal legislation.

The parties were in the process of negotiating the collective agreement that would replace the existing one. Bargaining sessions began three months before the collective agreement expired, and the parties had met for 40 to 45 days since then. The union initially presented 600 contract demands, but had reduced that number to about 225. Some items had been settled, but many were still outstanding, including wage increases.

The parties last had a formal bargaining session four months earlier. They had an informal meeting two months later, at which the union offered an unspecified “creative proposal” to settle the impasses that existed. The union’s chief negotiator said, however, that he needed to consult

with the bargaining unit on certain aspects of the proposal.

Then the employer’s request for referral to arbitration was filed just after the informal meeting, so no further negotiations or meetings occurred.

A further complication in the situation was the provisions of the legislation governing the relationship between the two parties. Both the workers (air traffic controllers) and the employer (airport ownership/management) offered services that would have a significant impact on the public if they were withdrawn or reduced. 

Because of this, the relevant legislation established that if a strike or lockout occurred, the parties would have to continue to supply their services or operate their services at a level that would “prevent an immediate and serious danger to the safety or health of the public.” The parties were also permitted, 15 days after the notice to bargain had been issued, to mutually agree on a list of services or operations that they considered essential in the event of a labour disruption, along with an estimate of the number of employees involved.

This list was filed with the labour relations board and was expected to be followed if a labour disruption occurred. The labour relations legislation also gives the labour relations board the power to make its own essential service designations in the industries it regulates, if it believes a strike or lockout could endanger public safety. It can designate which supplies, operations, or services it considers necessary; designate the manner in which the union or employer will carry out those functions; and impose any other measure it deems necessary. However, if the labour relations board determines that the level of activity needed to maintain operations is such that any strike or lockout activity would pose a threat to public safety, the board can refer any outstanding bargaining issues to binding arbitration.

In an earlier case involving the same parties, the board was asked to outline the general principles that it would use to determine essential services, as this would then indicate whether the board would permit a strike or a lockout in this particular situation. The board had indicated that it could not make a determination without a detailed safety study that would identify precisely what services could be withdrawn without immediate or serious danger. The board had commissioned this study, which was expected to be available in approximately six months. As a result of previous decisions, a small number of the bargaining unit members had the right to strike.

The employer’s chief negotiator, Jerome Ferrier, told the board that he had been involved in negotiations between the parties since the bargaining for the first collective agreement. He described the progress in this round of bargaining as “painfully slow” and attributed this to the workers’ new union affiliation. He characterized the union’s bargaining strategy, which it had used in negotiations with other employers, as completing all the steps that were required to be in a position to strike and then being prepared to strike if a collective agreement was not concluded. When asked to describe the impact of a strike or lockout, he stated that the employees who had the right to strike represented only about 10 percent of the total bargaining unit membership of 2,300, and that those who had the right to strike are not licensed air traffic controllers. He also stated that he did not think a lockout by the employer would be an effective bargaining strategy.

Under questioning, Ferrier stated that the relationship between the union and the employer had generally shown improvement over the previous few months, with the exception of the incomplete negotiations. There had been general progress in how disputes were being resolved, and fewer grievances were going to arbitration. He attributed this to the involvement of the union with which the workers were now affiliated.

Henry Gordon, the union’s chief negotiator, told the board that the air traffic controllers represented by his union were highly professional employees who had expected their situation to be very different when their employer changed from being part of the government to being a private corporation. Gordon said that the employees had expected that, as private sector employees, they would have improved collective bargaining rights and “the right to withdraw [their] services.” He alleged that “many promises were made either directly or indirectly to the members” when the change occurred, creating “great expectations” on the part of the members. He also stated that the members were “an extremely professional group, who study absolutely everything. For me they’re the best I’ve ever worked with—they read everything, they analyze everything, they want to debate everything. That kind of tells you that they’re confident in themselves and the professional services they provide.”

Gordon stated that the ability to strike was extremely important to the air traffic controllers, since they needed to be sure they could get the best collective agreement possible. When asked his opinion on the effect of a strike or lockout on the bargaining process, he stated that he did not feel that the right to strike as currently established was extensive enough to be effective, but that a lockout would be very effective. Gordon agreed with Ferrier that the bargaining process had been difficult, and also confirmed that both parties were dissatisfied with having had the resolution to the previous set of negotiations “forced upon them” by the threat of a legislated settlement. He also agreed that the general industrial relations climate between the two parties was improving.

The Employer’s Position

The employer argued that binding arbitration of the outstanding issues was needed to achieve “stability and harmony” in the relationship between the parties.

The Union’s Position

The union stated that it was willing to agree to send the outstanding monetary issues to arbitration if the parties could agree on the outstanding non-monetary issues by themselves.

The union was also willing to wait for the outcome of the safety study and the board’s final definition of the union’s right to strike before taking any action.