Air Canada Wins the Latest Round of the Ongoing Battle with its Workers

The ongoing Air Canada saga continues. If you are keeping score:
Recap of the Battle
Round One: Customer Service Agents (CAW) and AC agree to send remaining pension dispute to an interest arbitration, thereby avoiding back-to-work legislation by the Tories. A unanimous three-person arbitrator board sides with CAW argument in the interest arbitration. Workers 1. Air Canada 0. AC ungraceful in defeat, files an application for review of the award, but then later changes it mind and withdraws the application.
Round Two: Flight Attendants’ bargaining committee (CUPE) and AC bargain a tentative collective agreement in June, but members overwhelmingly reject the award (TA1). Bargaining resumes, but now the Tories have once again intervened and told the parties that they will not be permitted to engage in the usual strike/lockout process. Under the shadow of back to work legislation and interest arbitration, AC and the CUPE bargaining committee bargain a second proposed agreement (TA2)–this means that the committee elected by the CUPE membership to bargain on their behalf agreed to a ‘proposed’ collective agreement. This one too is rejected by 65% of the flight attendants who voted. At this point, the Minister of Labour makes the odd pronouncement that the system is broken because the union members have exercised their democratic right to express a different view of what constitutes a reasonable deal than the CUPE bargaining committee. She files a highly unusual reference under Section 107 of the Code, asking the Board to impose a collective agreement. The parties then reach a settlement, pursuant to section 79 of the Code, to refer the bargaining dispute to Elizabeth Macpherson, Chair of the CIRB, to determine the new collective agreement.
Macpherson issues her decision yesterday, imposing TA2 as the new collective agreement.   Workers/Unions: 1   Air Canada:  1
Round 3 (Pilots) and 4 (Baggage Handlers) coming up.
The Macpherson Decision
Here is Macpherson’s award.
She reasons that her job as an interest arbitrator is to “replicate” what the parties most likely would have bargained if left to the usual strike/lockout route.  This is called the Principle of Replication. It was used in the Round One interest arbitration too, but that time it worked in favour of the union.  Macpherson points to legal precedent for the point that the best guide for what the parties would have ultimately agreed to if left to their own devices is the deal that the Employer and the union’s bargaining committee had agreed to (TA2).   She says this:

There is considerable jurisprudence holding that an interest arbitrator may consider a rejected tentative agreement as evidence of the agreement that free collective bargaining would have produced, and that the onus is on the party seeking to cvhange a repudiated agreemetn to demonstrate why a change is justified…    [There] are exceptions to the use of a rejected tentative agreement as a guide to what free collective bargaining would have produced.  Where there is ‘extraordinary evidence’ or where a rejected agreement is clearly erroneous, irrational, unreasonable, or dysfunctional, an interest arbitrator may disregard that agreement when endeavouring to replicate what the parties could reasonably be expected to have agreed upon.

The Union argued that all of the government’s unprecedented meddling in the bargaining process were ‘extraordinary circumstances’ because they removed any real incentive for AC to bargain seriously, so that TA2 cannot be considered a replication of what would have happened if a strike or lockout would have been permitted.  Rather, TA2 represented the best the union committee thought it could bargain given that the government would not permit it to exercise its legal right to strike. Macpherson rejected that argument on the basis that the union had been able to bargain an improvement between the date of TA1 and TA2.  Therefore, she finds no ‘extraordinary circumstances’ that would cause her to depart from the presumption that a rejected settlement that a union bargaining committee had agreed to is what the parties would most likely have agreed to.

Here’s an advanced test question for labour law students:
Do you think that a lesson in this story for union bargaining committees is to not endorse a tentative collective agreement, and instead simply take the employers’ “final offer” to the members without any recommendation from the bargaining committee?
Do you think that approach would get the union around this presumption that once a union’s bargaining committee endorses a proposed deal, it is that deal that an arbitrator will ultimately impose?
Would that strategy be bad faith bargaining?  Should it be?