1 COMPLAINT Overview 1. This Complaint is a "bargaining in bad faith" complaint being brought by the union. 2. The union is the Halifax Typographical Union, Local 30130 of CWA/SCA Canada (the "Union"). 3. The employer is The Halifax Herald Ltd. ("the Chronicle Herald") which publishes in print and on the internet "The Chronicle Herald" newspaper and other publications. 4. The Union has represented three bargaining units of Chronicle Herald employees for many years: (1) a "pressroom" bargaining unit, (2) a "composing room" bargaining unit, and (3) an "editorial" bargaining unit. 5. This matter concerns the bargaining of a renewal collective agreement for the editorial bargaining unit. The previous collective agreement had a duration of November 21, 2011 to November 20, 2015 and continued in effect until January 23, 2016, at which time the Employer imposed new terms and conditions of employment leading bargaining unit employees to go on strike. That strike continues to present. 6. No previous round of bargaining for this bargaining unit had ever resulted in a work stoppage. 7. At the commencement of the strike, there were sixty-one (61) employees in the bargaining unit. {C1756030.1} 2 Background 8. In August 2015, notice to bargain was given. 9. The Union's lead negotiator is and has been Dave Wilson, CWA Canada staff representative. 10. The Chronicle Herald's lead negotiator is and has been its legal counsel, G. Grant Machum. 11. When the parties began collective bargaining meetings in late fall 2015, Mr. Machum told the Union's Bargaining Committee that the Chronicle Herald was in financial difficulty and would be needing employees to agree to a reduction in their pay and changes to their pension to save the Chronicle Herald. Mr Machum told the Union Bargaining Committee during his opening statement that the longtime owner of the paper, Mr. Dennis, "isn’t here to save you anymore" and Mr. Machum indicated that he saw the parties having a few bargaining sessions, then the Chronicle Herald would file for conciliation and then "you’ll be in the snow banks by January". 12. The Union responded that it did not dispute that, in general, older news media businesses were facing challenges but asked the Chronicle Herald to share audited financial statements in order for the Union and its Committee to be able to engage in full, informed and rational discussion of the monetary proposals that the Chronicle Herald would be tabling. 13. Mr. Machum initially refused to provide this information. After a lengthy negotiation that involved the Union sharing labour board jurisprudence with Mr. Machum, the Chronicle Herald's audited financial statements were provided to the Union's accountant. {C1756030.1} C0866467.1 3 14. The Chronicle Herald's financial statements that were shared with the Union's accountant showed the Chronicle Herald to be profitable with a potential reduction in its profitability possible due to a stated intention to pay off a large capital debt at an accelerated rate in immediate years. The Chronicle Herald's unlawful conduct 15. In this Complaint, the Union alleges that the Chronicle Herald has been and is bargaining in a manner designed to end union representation of Chronicle Herald employees and/or prevent a collective agreement from being concluded and signed. In this regard, the Union is alleging that the Chronicle Herald has tabled and is bargaining to impasse proposals that are designed to be rejected and has maintained for nearly a year an inflexible position on nearly all of its bargaining proposals including demands that the Union agree to change the jurisdiction and scope of its bargaining unit. 16. At the commencement of bargaining in the fall of 2015, in addition to requesting major monetary concessions, the Chronicle Herald also tabled a complete rewrite of the collective agreement (see Tabs 1 & 2). Included in these were proposals that, if accepted, would render the Union's bargaining rights meaningless. These provisions included a proposal to change the jurisdiction article of the collective agreement (Article 1 – see Tab 1, pages 4 to 5) to give the Chronicle Herald the right to transfer the work of bargaining unit employees to non-bargaining unit employees. This proposal would give the Chronicle Herald the right to set up a parallel non-union operation, which the Chronicle Herald said it planned to do. At the same time, the Chronicle Herald also proposed to change the job security article of the collective agreement (Article 5 – see Tab 1, pages 14 to 17) to give the Chronicle Herald the right to lay off senior employees ahead of more junior employees. {C1756030.1} 4 17. The Chronicle Herald informed the Union at the time that it needed and would utilize the change to the Union jurisdiction to immediately transfer to nonbargaining unit employees the work of approximately a quarter of the bargaining unit who do lay out and design, pagination and print editing and would lay off bargaining unit employees who do this work. The Chronicle Herald said that the non-bargaining unit employees to whom this work would be transferred would be set up in a special department that the Chronicle Herald called "Non-union Hub". 18. In January 2016, the Chronicle Herald threatened to lock out employees if they did not accept its proposed changes to the Union's jurisdiction and all of its other non-monetary and monetary proposals. 19. On January 20, 2016, the Chronicle Herald then informed the Union that it would not lock out employees but rather would impose all of its proposals as new terms and conditions of employment effective January 23, 2016. 20. On January 23, 2016, left by the employer's threat with no choice, the bargaining unit commenced a lawful strike that continues to this day. 21. On January 23, 2016, the Chronicle Herald responded to the strike by issuing layoff notices to eighteen (18) bargaining unit employees including the local president of the Union. 22. Over the course of the year since the Chronicle Herald first tabled its proposals, the Union has in a series of bargaining moves agreed to all of the Chronicle Herald's major monetary concessions in order to try to achieve a collective agreement. These monetary concessions that the Union has agreed to include:  {C1756030.1} an across the board wage reduction (5% reduction) C0866467.1 5  an across the board increase in the workweek from 35 hours to 37.5 hours  elimination of the Chronicle Herald's defined benefit pension plan  creation of a new starting wage rate of $600/week for Reporters compared with the current start rate of $800/week 23. The Guild also proposed to the Chronicle Herald that it would provide the Chronicle Herald with its desired cost reduction in the areas of lay out and design, pagination and print editing by agreeing to new hire wage rates for this work that would match the rates paid by outside contractor Pagemaster and would agree that all but two (2) of the approximately ten (10) such positions would be immediately filled by new hires. 24. Despite these major monetary concessions by the Union and employees, the Chronicle Herald has continued to bargain to impasse its demands to change the Union's jurisdiction and employees' job security rights. 25. In fact, on June 3, 2016, four months into the strike and in response to a set of proposals from the Union on May 25, 2016 in which the Union offered further major concessions, the Chronicle Herald responded with a new proposal to further reduce the jurisdiction of the Union. In addition to its original proposal to change the Union's jurisdiction, on June 3, 2016 for the first time the Chronicle Herald put forward a proposal to add four new exclusions to the Union's jurisdiction. It proposed to remove from the bargaining unit "the positions of assignment editor, news editor, business editor, and bureau chief". These are bargaining unit positions held currently by four employees who are on strike including the vice-president of the Local Union. {C1756030.1} 6 26. In its June 3, 2016 response to the Union, in addition to adding these new proposed exclusions to the bargaining unit, the Chronicle Herald also worsened its offer to the Union in a number of significant ways including the following. It reduced its wage proposal by approximately an additional 4% when it changed its proposed wage grid (in Article 8) from being based on hourly rates to one based on annual salaries, reduced sick leave pay after thirty days from 100% pay to 66.7% pay (see Article 13.1), and increased by eight (8) the number of bargaining unit employees who it was laying off bringing the total to twenty-six (26). A copy of the Employer's June 3, 2016, proposal is attached at Tab 3. 27. The Chronicle Herald has said to the Union in bargaining that if the Union will not agree to change the scope of the Union's jurisdiction, then the Chronicle Herald would instead contract out bargaining unit work under its new proposed language beginning with lay out and design, pagination and print editing and the layoff of bargaining unit employees would still happen. Despite saying this and despite the fact that the Union responded by expressly telling the Chronicle Herald on a number of occasions that the Union will not agree to change its jurisdiction, the Chronicle Herald nevertheless has re-tabled and continues to retable as recently as November 6, 2016, its proposed changes to the Union's jurisdiction. 28. Indeed, on November 6, 2016, even after the Union made yet another effort to try to conclude a collective agreement and end the strike by agreeing to discuss with the Chronicle Herald allowing it to transfer lay out and design, pagination and print editing to non-Union employees, the Chronicle Herald responded by providing to the Union "a package deal…made on the basis of a non union Hub" that included a re-tabling of the Chronicle Herald's original proposal to change the Union's jurisdiction, as well as its June 3, 2016 proposal to exclude the four bargaining unit classifications and its proposal that it have the right to lay off senior employees ahead of more junior employees. {C1756030.1} C0866467.1 7 29. In its November 6, 2016 response to the Union's agreement to discuss allowing the transfer of lay out and design, pagination and print editing to non-Union employees, in addition to re-tabling its proposed changes to the Union's jurisdiction and to employee's job security, the Chronicle Herald also added into its proposals for the first time the unlawful proposal that it have the right to retain replacement workers at the same time as it would be laying off striking employees and proposed for the first time that the Union's right to a bulletin board be deleted entirely from the collective agreement. A copy of the Employer's November 6, 2016, proposals is attached at Tab 4. 30. Further evidence that the Chronicle Herald has no interest in reaching agreement on a new collective agreement and is in fact acting to prevent a collective agreement from being reached is provided by the fact that the Chronicle Herald has refused to withdraw or modify nearly any of its other hundreds of proposed changes to the collective agreement, and included these in its proposals as well as recently as November 6, 2016. Many of these are small proposed changes that are not based on any operational need and have little or no practical utility to the employer but would be disruptive for employees and/or are deliberately provocative to employees especially in conjunction with the major monetary concessions that employees are being asked and have agreed to accept. Examples of such proposals which are deliberatively provocative and that are not a response to any operational problems include:  removal from the collective agreement of the right of employees to take at least one week of vacation during July and August  removal of the requirement that management will make "every reasonable effort" to grant time off for banked overtime at dates and times requested by employees {C1756030.1} 8  reducing the vacation entitlement of a small number of employees by one week  making overtime mandatory rather than voluntary when there have been no issues of the employer having difficulty getting staff to work overtime  requiring employees who have a public holiday fall within their vacation to reschedule the day within a two week period rather than simply at a time mutually agreed between the employee and management The Union's submissions 31. As stated above, the Chronicle Herald has bargained and continues to bargain in a manner designed to end union representation of Chronicle Herald employees and/or prevent a collective agreement from being concluded and signed. 32. The Union has agreed to all of the Chronicle Herald's major demands for monetary concessions – concessions that will save the Chronicle Herald and take away from bargaining unit employees millions of dollars over the life of the collective agreement. Yet the Chronicle Herald continues to bargain to impasse nearly all of its hundreds of proposed non-monetary changes to the collective agreement including its proposed changes to the Union's jurisdiction and scope and to employee's job security rights – proposals that the Chronicle Herald knows the Union and employees cannot accept and that were designed to be rejected. Bargaining jurisdiction and scope to impasse 33. The Chronicle Herald has made it clear to the Union from the beginning of this round of bargaining and as recently as November 6, 2016, that it will not agree to any collective agreement that does not include its proposal to change the Union's jurisdiction and scope as described above. {C1756030.1} C0866467.1 9 "Poison pill" proposals 34. The Chronicle Herald's proposal to change the Union's jurisdiction and scope to give the Chronicle Herald the right to transfer the work of bargaining unit employees to non-bargaining unit employees and set up a parallel non-union operation or contract out the work is a proposal that the Chronicle Herald knows the Union can never accept because such a change would render the Union's bargaining rights meaningless. It would give the employer the right to decide what work and what employee is in the bargaining unit and what work and what employee is out of the bargaining unit, completely undermining the integrity and viability of the bargaining unit. 35. The Chronicle Herald's proposal to change the job security article of the collective agreement to give the Chronicle Herald the right to lay off senior employees ahead of more junior employees, in conjunction with the Chronicle Herald's jurisdictional proposal, is another proposal that the Chronicle Herald knows that the Union and its members can never accept because together these provisions would leave bargaining unit employees with no job security whatsoever. "Receding horizon" proposals 36. Several times through the course of bargaining, as the Union has been making major concessions, the Chronicle Herald added to its proposals new significant concessionary demands. 37. As noted above, on June 3, 2016, in response to a concessionary proposal from the Union on May 25, 2016, the Chronicle Herald responded by proposing for the first time to exclude four additional positions from the bargaining unit, reduced its wage proposal by an additional 4% approximately, reduced sick leave pay after {C1756030.1} 10 thirty days from 100% pay to 66.7% pay, and increased by eight (8) the number of bargaining unit employees who it would be laying off. 38. In October 2016, the Chronicle Herald informed the Union that, in addition to the work that it had previously told the Union that it intended to transfer immediately to non-bargaining unit employees in a Non-Union Hub, it also intended to transfer all web editing work. 39. As noted above, on November 6, 2016, in response to another concessionary proposal from the Union, the Chronicle Herald added into its proposals for the first time that it have the right to retain replacement workers at the same time as it would be laying off striking employees and proposed for the first time that the Union's right to a bulletin board be deleted entirely from the collective agreement. Other failure to make every reasonable effort to conclude a collective agreement 40. In addition to the above, the Chronicle Herald commenced bargaining by tabling a complete re-write of the collective agreement, and despite the Union's agreement to all of the Chronicle Herald's major concessionary demands, the Chronicle Herald continues to bargain to impasse this re-write of the collective agreement including, as stated above, many proposed changes that are not based on any operational need and have little or no practical utility to the employer but that are changes that the Chronicle Herald knows would be disruptive for employees and/or are deliberately provocative to employees. {C1756030.1} C0866467.1 11 The Remedy Sought By The Union 41. The Union requests that the Board issue the following remedial measures pursuant to ss. 35 and 78 of the Trade Union Act:  a declaration that the Employer has breached s. 35 of the Trade Union Act by failing to make every reasonable effort to conclude and sign a collective agreement;  an order that directs the Employer to: a. post the Board's order and reasons at prominent locations at its premises to which all members of the bargaining unit have access; b. resume collective bargaining in accordance with s. 35 of the Trade Union Act, and meet with the Union and the appointed representatives from Conciliation and Mediation Services no later than seventy-two (72) hours from the issuance of the Board's order; c. cease and desist from including in its collective bargaining proposals any demand that the Union agree to change the jurisdiction and scope of its bargaining unit, any demand that does not have a demonstrable business justification and any demand that it have the right to retain replacement workers at the same time as it is laying off striking employees; d. rescind layoff notices issued to employees; e. such other relief as the Union may request or the Board may deem appropriate. {C1756030.1}