N.S. Labour Decision: Egg Films, International Alliance of Theatrical Stage Employees local 849

7/24/2019 N.S. Labour Decision: Egg Films, International Alliance of Theatrical Stage Employees local 849

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ORDER 2015 NSLB 213

LABOUR BOARD

Nova Scotia

BETWEEN

International Alliance of Theatrical Stage Employees, Moving

Picture Technicians, Artists and Allied Crafts of the United

States, its Territories and Canada, AFL-CIO-CLC, Local 849

- Complainant

-and-

Egg Films, Inc. - Respondent

NATURE OF MATTER Complaint of Failure to Bargain under Section 35 of the

Trade Union Act.

DATE OF FILING March 11, 2015

BEFORE Augustus Richardson, Q.C., Vice-Chair

REPRESENTATIVES Ronald Pink, Q.C., for the Complainant

Sarah Thomas, for the Respondent

CASE MANAGEMENT DATE April 7, 2015

HEARING DATES August 27 and 28, 2015 in Halifax, Nova Scotia

August 31, 2015, cancelled

ORDER For the following reasons the Board accordingly makes the

following declaration:

a. Egg Films breached its duty pursuant to s.35(a) of

theActto make every reasonable effort to concludeand sign a collective agreement; and

b. Egg Films unlawfully locked out its employees in

March 2015, contrary to s.47(1) of theAct.


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The Board also makes the following orders as a result of

these declarations:

a. The parties are to return to collective bargaining

within 14 days of the date of this order;

b. On their return to collective bargaining the parties

shall use as a starting point for those negotiations

the terms and conditions of the first collective

agreement, as appended to Egg Films No.2. The

parties are free to negotiate over changes to those

terms and conditions, subject to the following

restrictions:

i) Egg Films cannot insist on a threshold higher

than the one set out in Article 2.4 unless itprovides to the Union at the same time with

reasonable proof of budgets and finances of

its productions since September 2013,

subject to such redactions as may

reasonably be necessary to preserve the

identity of clients;

ii) Egg Films cannot insist on changes to Articles

3.3, 3.4 and 4 of the first collective, save and

except that Article 4.1 should be read as

requiring at least 48 hours notice;

iii) Egg Films cannot insist on a change to Article

2.5 of the first collective agreement; and

iv) Egg Films cannot insist on a term of any

collective agreement less than 2 years; and

c. Egg Films is to pay compensatory damages pursuant

to s.36(2) of the Actto the Union in respect of any

work performed in 2015 that would normally havebeen performed by members of the Union at the

rates of pay provided for under the first collective

agreement.

The Board will retain jurisdiction with respect to any issues

arising out of its remedial order.


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REASONS FOR DECISION

Introduction

[1] This is a complaint filed by the Union on March 10, 2015 that the Employer (Egg Films)

has breached its obligation pursuant to s.35(a) of the Trade Union Act, RSNS 1989,

c.475, as amended (the Act) to make every reasonable effort to conclude and sign a

collective agreement. The Minister of Labour and Advanced Education referred the

Complaint to the Labour Board on March 11, 2015.

[2] The collective bargaining process mandated by the law of this province does not require

employers, and the unions who represent their employees, to arrive at a collective

agreement. It recognizes that reasonable parties in pursuing their reasonable interests

may reasonably disagree. It recognizes too that some differences of opinion between

employers and their unionized employees can only be resolved through industrial strife,

whether by strike or lockout. But before the parties are permitted to employ theirweapons of last resort, the law requires them first to make a good faith reasonable

effort to conclude and sign a collective agreement.

[3] This approach to collective bargaining has been in place in this province for generations.

It is well understood. It has reduced the social and economic harm caused to both

employers and their employees by strikes and lockouts. It has reduced the wider social

and economic disruption caused by such strife. It has worked so well because of its basic

assumption: that rational parties acting reasonably in the pursuit of their own self-

interests can find common ground upon which to build a collective agreement.

[4] It is a matter of regret then that in this case that assumption has proved false. On the

evidence before it, and for the reasons set out below, the Board is satisfied that Egg Films

clearly failed to make any reasonable effort to find common ground with the Union.

Indeed, its posture throughout has been one of unrelenting hostility to the Union, coupled

with an adamant refusal to accept the legal processes governing labour relations in this

province. Given the Employers conduct the real issue for the Board will be the remedy it

will have to craft.

History

[5] Egg Films is a commercial production company based in Halifax. It has been in operationsince 2003. The majority of Egg Films business comes from corporate and web video

work. It also creates television, radio and web based commercials. These commercial

productions generally take less than 24 hours, covering one or perhaps two days.

[6] The owners of Egg Films and its principal and guiding officers are Mr. Michael Hachey, its

CEO, and Ms. Sarah Thomas, a Partner and Executive Producer.


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[7] The Union is the Atlantic Canadian local of the International Alliance of Theatrical Stage

Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its

Territories and Canada (the International). It represents 18 crafts involved in film,

television and theatrical productions, such as hair and makeup workers, transport

workers, microphone boom workers, stagehands and the like. It has 320 members. It has

collective agreements in the film industry, where production shoots often cover severalweeks if not several months. It had not, up until its certification of a bargaining unit of

workers at Egg Films in 2011, had any collective agreements with commercial production

companies.

[8] The hearing with respect to the Unions complaint took place before the Board on August

27 and 28, 2015. Mr. Gary Vermeir, the Unions Business Agent, was the only witness

called by either party. Ms. Thomas had earlier advised the Board that she intended to call

a large number of witnesses. However, on the day of the hearing she advised that no one

was available. She had not issued subpoenas to compel the attendance of any of them.

Nor was she prepared to give evidence herself. She limited her role to cross-examinationof Mr. Vermeir, and to making submissions on behalf of Egg Films.

[9] Mr. Vermeirs evidence, and the submissions of the parties, took place within the context

of a relationship between them that could at best be described as strained, and at worst

as acrimonious. To understand that history is to understand the outcome, and for that

reason we set it out below.

The Original Certification Proceedings

[10] On March 5, 2011 the Union filed a certification application pursuant to s.21 of the Trade

Union Act, RSNS 1989, c.475, as amended (the Act) to become certified as thebargaining agent for its members employed by Egg Films on its commercial productions:

LB-0011. The Labour Board (the Board) issued a decision on April 3, 2012 in which it

found that the technicians in question were employees rather than independent

contractors (as Egg Films had argued), and that the proposed bargaining unit was

appropriate for certification: International Alliance of Theatrical Stage Employees, Moving

Picture Technicians, Artists and Allied Crafts, Local 849 v. Egg Films Inc.2012 NSLB 120

(CanLII) (Egg Films No. 1"). The Board certified the Union as bargaining agent on

September 27, 2012 after lengthy and hotly contested hearings.

Judicial Proceedings

[11] Egg Films applied to the Nova Scotia Supreme Court for judicial review of the Boards

decision to certify the Union for a bargaining unit composed of the workers it employed

on its commercial shoots: Egg Films Inc. v. Nova Scotia (Labour Board)2013 NSSC 123.

The application was heard March 6, 2013. Egg Films argued, amongst other things, that

the Boards decisions that the workers Egg Films hired were employees within the

meaning of theAct, and that it was appropriate to certify a bargaining unit composed of


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such workers, was wrong. In reasons dated April 17, 2013 the Court concluded that there

was nothing unreasonable in the decision of the Boardor at least, not so unreasonable

as would grant the Court jurisdiction to set the decision aside.

[12] That decision was appealed to the Court of Appeal: Egg Films Inc. v. Nova Scotia (Labour

Board)2014 NSCA 13. The appeal was heard December 9, 2013. Egg Films again took theposition that the Boards decision was unreasonable because the technical workers were

not employees within the meaning of the Act; and because the bargaining unit

composed of such workers was not appropriate for collective bargaining under the Act:

para.22. In reasons released April 3, 2014 a majority of the Court of Appeal held that the

Boards decision was not unreasonable. The appeal was dismissed.

[13] Egg Films then sought leave to appeal to the Supreme Court of Canada. The Supreme

Court dismissed the application on September 25, 2014: Egg Films Incorporated v. Labour

Board et al2014 CanLII 56698 (SCC).

Collective Bargaining Following the Boards Certification Decision

[14] The Boards order certifying Egg Films production workers triggered the requirements

under theActthat the parties enter into collective bargaining in an attempt to fashion a

collective agreement. These negotiations took place while the judicial challenges (above

noted) were going on. They also took place under a new provision in the Act, one that

granted the Board the jurisdiction under certain circumstances to direct the settlement

of the provisions of a first collective agreement between the parties by arbitration:

s.40A(1).

[15] Whatever bargaining took place did not prove fruitful. On July 16, 2013 the Union madean application for settlement of a first collective agreement pursuant to s.40A of the

Trade Union Act: LB-0592.

[16] There were two days of mediation in September 2013. Written submissions were filed.

The parties remained far apart. For reasons dated December 23, 2013 the Board

determined the provisions of the first collective agreement pursuant to s.40A of the Trade

Union Act: International Alliance of Theatrical Stage Employees, Moving Pictures

Technicians, Artists and Allied Crafts of the United States, its territories and Canada,

Local 849 v. Egg Films Inc. 2013 NSLB 167 (Egg Films No. 2). The collective

agreement was for the period September 19, 2013 to September 18, 2014.

[17] For purposes of what follows it is necessary to make note of some of the provisions

dealing with the scope of the collective agreement. Article 2.3 provided that the

agreement would not apply at all to productions with a total budget under $10,000.00.

Article 2.4 then provided that certain Articles of the agreement (for example, those

dealing with hours of work, overtime, meal breaks, and holidays) would not apply for

productions with total budgets that were between $10,000 and $69,999.99. Productions


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with total budgets of $70,000.00 and higher would be subject to all of the agreements

provisions.

[18] As explained by the Board in its decision in Egg Films No. 2, both parties had endorsed

the idea of thresholds. However, Egg Films had wanted the upper threshold set at

$80,000.00. The Union had proposed a threshold of $60,000.00, and had also suggestedthat the agreement not apply at all to any production with a budget of less than

$10,000.00. The Board decided to split the difference insofar as the upper threshold was

concerned, noting that [t]his kind of compromise is precisely what parties do under the

pressures of a lengthy negotiation and the threat or reality of job action: Egg Films No.

2at para.14; and see generally paras.10-13. The Board also accepted the Unions proposal

to fully exempt all productions less than $10,000.00: see para.15.

September 2013 to September 2014 Relations Between the Parties Under the First

Collective Agreement

[19] Mr. Vermeir testified at the hearing on August 27, 2015 as to the relationship between

the Union and Egg Films during the term of that first collective agreement. He testified in

direct that during the period in question there were roughly 13 commercial shoots. On

these shoots Egg Films had complied with all of the terms and conditions of the collective

agreement. The shoots were generally one to two days in duration. He had never been

provided with budget information by Egg Films and so was not able to say whether any of

the shoots were above or below the thresholds set in the agreement. He had not received

any complaints from Egg Films (and in particular Ms. Thomas or Mr. Hachey) about

working under the collective agreement. There had been no complaint about the impact,

if any, of the collective agreement on the companys ability to compete for contracts, or

on its operations. He had not received any indication that the wages or benefits payableunder the collective agreement posed any problems for the company. Indeed, he had had

virtually no communications with either Mr. Hachey or Ms. Thomasand certainly none

about the terms and conditions of the agreement. Nor had he received any complaints

from any of the Unions members working on those shoots.

[20] Mr. Vermeir also testified that from time to time the Union had received requests from

Egg Films pursuant to Article 3.3 to permit it to hire non-Union workers. Article 3.3

provided as follows:

Only members in good standing. The Company agrees to give priority inemployment to Members in good standing with the Union, for

productions with a budget of $10,000 or greater. Should the Company be

unable to fill positions with Members in good standing with the Union a

duly authorized Union Work Permit shall also constitute good standing

with the Union. The Union will not unreasonably deny a request for a

Union Work Permit.


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[21] Mr. Vermeir testified that to the best of his knowledge the Union had never refused any

request from Egg Films to hire a non-Union member. As he explained, part of the

agreement was that we would not unreasonably reject a request to hire a non-member.

[22] Mr. Vermeir was not cross-examined about this part of his testimony by Ms. Thomas.

Collective BargainingNovember 2014

[23] The first collective agreement expired September 18, 2014. Prior to that expiry date Mr.

Vermeir sent a letter to Ms. Thomas on July 24, 2014 serving notice that the Union wished

to begin bargaining for a new collective agreement to ensure a seamless transition from

the imposed collective agreement to one that is mutually agreeable to both parties: Ex.

U1, Tab 1.

[24] The parties were not able to meet to bargain until November 2014. Mr. Vermeir was the

Unions representative. Egg Films retained an outside human resources consultant, Mr.Ivano Andriani, to bargain on its behalf. As already noted, Mr. Vermeir was the only

witness called as to what happened during the bargaining sessions. Mr. Andriani was not

called by Ms. Thomas to provide his own evidence as to those negotiations. Notes were

taken by the Union during the bargaining process, and Mr. Vermeir testified that they

were an accurate record of what had been discussed: see Ex. U2, Tab 1.

[25] Mr. Vermeir testified that he and Mr. Andriani first met over coffee to get to know each

other. Mr. Vermeir thought him very cordial. Mr. Andriani told him he understood that

the relationship between the Union and Egg Films had been a bit rocky, b ut that he

hoped to have a fruitful bargaining sessions.

[26] Mr. Vermeir and Mr. Andriani met to commence negotiations on November 27, 2014. Mr.

Vermeir presented the Unions two-page proposal: Ex. U1, Tab 2. The proposal assumed

the continuation of most of the terms and conditions of the first collective agreement. It

proposed to add a provision dealing with the appointment of a shop steward. It called for

the provision of more details from the company in the event that it wanted to hire a non-

member. And it proposed some changes to the dues and benefit plan payments.

[27] Mr. Andriani presented the companys two-page proposal: Ex. U1, Tab 3. The proposal

was headed with a preamble that described the company as operating in a marketplace

where its competitors are nimble, lean, flexible, efficient with its resources, aggressivewith pricing and extremely competitive. The preamble went on discussing the market in

which Egg Films operated in similar terms, concluding with the observation that it

required concessions but that it remained open to ideas, discussion and proposals that

result in an agreement that position[s] us to compete on a more level basis for the

opportunities that exist in our community: Ex. U1, Tab 3.

[28] There are several comments about the companys proposal that warrant mention here.


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[29] First, it was not draftedas in the case of the Unions proposalas a list of proposed

changes or amendments to the first collective agreement that had expired. It did not, in

other words, accept the first collective agreement as a starting point for negotiating

particular parts that may have proved problematic for Egg Films in its day to day

operations. It was instead drafted as a completeand much differentcollectiveagreement to be executed by both parties. It was moreover expressed in words (as in its

preamble) less expressive of a collective agreement and more as a policy statement in

terms of how Egg Films intended to manage its workforce and its operations.

[30] Second, the draft removed the standard types of terms and conditions of employment

such as rates of pay, hours of work, overtime and so on that one normally sees not just in

a collective agreement, but in any form of employment contract. Moreover, many of the

conditions were terms that, Mr. Vermeir testified, had been agreed to by the parties

during the mediation process leading up to the Boards decision in Egg Films No. 2. And,

bearing in mind Mr. Vermeirs testimony that in the period September 2013 to September2014 the Union had received no complaints from Egg Filmsor indeed its membersas

to the conditions of employment in the collective agreement, Mr. Vermeir was left to

wonder why it was necessary to delete them. Mr. Andrianis explanation was that various

Nova Scotia statutes already provided for basic terms and conditions of employment,

making it unnecessary to provide for the same in a collective agreement.

[31] Third, clause 5 provided as follows:

The Employer agrees to be bound to this agreement for any productions

shot in Nova Scotia over $120,000 (one-hundred-twenty-thousand

dollars): Ex. U1, Tab 3.

[32] This clause was coupled with the removal of any provision similar to 2.5 of the first

collective agreement, which had required the company on request to provide

reasonable proof of the budget of a production. This meant that Egg Films was asking

the Union to agree that the collective agreement would not apply at all to productions

under $120,000.00 without at the same time giving it the information necessary to know

whether the collective agreement should apply for any particular production. This

provision would, if agreed to by the Union, undercutand indeed possibly eliminate

the Unions jurisdiction for all practical purposes. In effect, it represented the offer of an

agreement not to agree.

[33] Mr. Vermeir testified that he and Mr. Andriani discussed the companys proposal. Egg

Films had recently lost one of its major clients due to a merger, and Mr. Vermeir

acknowledged that that would create a difficult business environment. He explained

however that it was a difficult environment for the Unions members as well. Mr. Vermeir

testified that when discussing the concessions being requested by Egg Films it became

clear that the concessions in the companys document meant removal of rates of pay and

working conditions and removal of the Unions jurisdiction. The latter was a reference


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to the companys proposal to increase the upper threshold below which any collective

agreement would not apply. He explained that without any information concerning the

budgets of the companys commercial shoots the Union could not assess the propos ed

change. His concern was that an increase in the threshold to $120,000.00 would end up

covering most if not all of the companys productionsmeaning that the Union would

have little or no jurisdiction left.

[34] Mr. Vermeir testified that he discussed with Mr. Andriani the Unions concerns with the

companys proposed agreement. He told him that the Union had no way to evaluate the

potential impact of the $120,000.00 threshold because the company had never provided

the Union with any information as to the budgets of the shoots that had been worked on

during the first collective agreement. If all or most of the companys productions were

less than the threshold figure there would be no role for the Union to play on behalf of

its members. Mr. Vermeir testified that Mr. Andriani understood that we were punching

in the dark and that he promised to get the budgetary information.

[35] The negotiations lasted about four hours. They broke off, to reconvene the next day,

November 28th.

[36] Mr. Vermeir testified that Mr. Andriani presented a revised proposed collective

agreement on behalf of the company: Ex. U1, Tab 4. The revised draft agreement added

provisions for the appointment of a shop steward; for the provision of call sheets for all

productions over $10,000; for meal breaks; and for the deduction of union dues (but not

benefits): Ex. U1, Tab 4, items 8, 9, 10 and 11. It also added a provision that terms of

employment for all productions over $10,000.00 should be governed by the Employment

Standards Act, the Occupational Health and Safety Act, the Human Rights Actand the

Workers Compensation Act: Ex. U1, Tab 4, item 2. The threshold in clause 5 below whichthe agreement would not apply was reduced from $120,000.00 to $110,000.00: Ex. U1,

Tab 4, item 5.

[37] Mr. Vermeir testified that he was surprised and disappointed by the second proposal. In

part he did not understand how clause 2 (which purported to make Nova Scotian

employment legislation applicable to shoots over $10,000.00) could be squared with

clause 5 (which bound the employer to the agreement only to shoots over $110,000.00).

He also pointed out that Item 2 was invalid in any event, since one could not legally

exclude the provisions of Nova Scotias employment or human rights legislation to shoots

under $10,000.00 (or for any amount for that matter).

[38] Mr. Vermeir testified that Mr. Andriani appeared a little sheepish. The latter had

promised to obtain budget information for Mr. Vermeir but had not been able to get it

from the company. The second proposal was not much different from the first. If accepted

there would be no standards, no regular rates of pay, it would just be the free market.

Mr. Vermeir was also concerned about the proposed agreements removal of any terms

and conditions of employment (other than those already present under employment and


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human rights legislation). He discussed this point with Mr. Andriani, who said that he

would go back to the company to see if he could get any changes to its position. They

agreed to end the session at that point.

[39] Mr. Vermeir testified that he was depressed about the state of the negotiations at that

point. It seemed to him that the company was paying lip service to the duty to bargain,and that its positions were designed to cut the Union off at the knees. He said to Mr.

Andriani that he thought that conciliation was the only way to go at this point. Mr.

Andriani urged him to wait, and to give him time to talk to the company. Mr. Vermeir

agreed to do that. He waited for a week and heard nothing. He sent an email to inquire

as to what was happening, and heard nothing. Another week went by and he then

emailed Mr. Andriani. He was advised by Mr. Andriani at that point that there was no

movement that he was unable to get his client to come up with another proposal so that

we could seriously negotiate. Mr. Andriani recommended that the Union seek

conciliation.

[40] We note here that during Ms. Thomas cross -examination of Mr. Vermeir she asked

whether the Union had taken the companys proposed draft collective agreement to its

membership. Mr. Vermeir responded that one did not take employer proposals to the

membership during the negotiation stage. As he noted, you cant negotiate by a

committee of 300. Counsel for the Union in any event objected to this line of cross -

examination on the grounds of relevance. He submitted that the Union was under no

obligation to take unworthy proposals to the membership; and that whether it did or not

was up to the Union and not the employer. Ms. Thomas argued in response that the

questions were relevant because the agreement I proposed is perfectly fine for this

Union to sign and that it could have done so instead of going through a litany of slander

against us. (This last observation was a reference to events that happened some timeafter the end of collective bargaining.) She also asked Mr. Vermeir whether the Unions

membership had agreed with the Unions decision to file the s.35 complaint, to which

counsel again objected on the grounds of relevance.

[41] Mr. Vermeir was also cross-examined about the terms respecting working conditions in

the first collective agreement that had been removed by Egg Films in its November 27 th

proposed draft collective agreement and replaced with the references to Nova Scotian

labour standards legislation. He was asked why the Union would object to that in the

negotiations. Mr. Vermeir replied that they had already been agreed to in the first

collective agreement. Ms. Thomas responded by calling it the imposed collectiveagreement, to which Mr. Vermeir (who had been involved in the negotiations leading up

to the s.40A hearing in September 2013) responded that many of those terms had been

agreed to prior to the Boards decision.


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Conciliation Efforts

[42] On December 9, 2014 Mr. Vermeir wrote to the Minister of Labour and Advanced

Education to request the appointment of a conciliator: Ex. U2, Tab 3. A conciliator was

appointed. Conciliation took place but was not successful. On February 20, 2015 the

conciliation officer reported to the parties that her report had been made to the Ministerin accordance with s.38(2) of the Trade Union Act: Ex. U2, Tab 5.

Failure of Conciliation

[43] On March 4, 2015 Egg Films served notice in accordance with s.47(3)(b) of the Trade Union

Actof its intention to lockout the Union: Ex. U1, Tab 5.

[44] On March 10, 2015 the Union filed the within application, seeking a declaration that Egg

Films had breached its obligation under theActto bargain in good faith.

Events After the Lockout, and the Unions Application, in March 2015: Social Media

Campaign

[45] What ensued in the following months was a battle royal between and amongst supporters

of the company and of the Union. The struggle on Egg Films behalf was carried on chiefly

by Mr. Hachey and Ms. Thomas. It was waged in public meetings and protests, and on

social media (Facebook and Twitter), press releases and web pages: see Ex. U1, Tabs 6-

15; Ex. U2, Tabs 6-9.

[46] It is not necessary at this point to review in detail the evidence of that post-lockout

campaign. Suffice it to say that it was bitter, and that Egg Films (chiefly through Mr.Hachey and Ms. Thomas) made clear that it had no intention of negotiating with the Union

ever again, and that it still adamantly rejected the Boards original decision to certify the

Union. The following samples of the hundreds if not thousands of tweets and Facebook

postings by Egg Films, and in particular Mr. Hachey and Ms. Thomas, provide the flavour

of their attitude:

a. Egg Films had no intention of ever bargaining with the #bullies

of @IATSE849: Ex. U1, Tab 9, p.21;

b. The Boards agenda [in certifying the Union] was to unionize

freelancers and our case was ... [its] chance. It took ... [the

Board] 9 months to write ... [its] unprecedented decision.

#corrupt #biased #agenda: Ex. U1, Tab 12, p.12;

c. August 15, 2015: Update: Now the International Alliance of

Theatrical Stage Employees (IATSE) wants @eggstudios to

disclose the financial information to them and our corrupt Labour

Board (thats right IATSE and NS Labour Board both parties are


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corrupt). In Marchweeks after negotiations ended in an impasse

and after the lock-out of workers by Egg they filed an Unfair

Labour Practice complaint saying we would not negotiate. We

did try to negotiate made some concessions, but these union

officials from the International wanted their contract and nothing

elseso it went nowhere in the end.

We will not negotiate with a gun to our heads! They are trying

every deplorable trick in the book and its not going to work

@IATSE. We speak for the workers and they dont want you in

their freelance business. This wont work, not [sic] any other

tactic you think of ... http://www.dontberotten.org/

nslabourboard8 ... /egg-films-denied.

What private company out there would disclose their private

financial information? #BulliesNeverWin: Ex. U2, Tab 6, p.3.

[47] In the Boards view none of this evidence was relevant to the primary issue before it,

which was whether Egg Films breached its duty to bargain in good faith in November

2014. The Board accepted the evidence, however, because such evidence could have

some relevance in the event the Board concluded that Egg Films did breach its duty to

bargain in good faith prior to its decision to lockout the Union. In that event the Board

would have to consider the appropriate remedy, and in that case the post-breach conduct

of the parties could play a role in determining what an appropriate remedy might be.

Post-March 2015 Procedural Wrangling

[48] Egg Films was advised by the Board of the Unions s.35 complaint on March 13, 2015.

[49] Mr. Hachey responded on behalf of Egg Films to the Unions complaint in a letter dated

March 20, 2015. The reply consisted of eight paragraphs, all repeating almost word-for-

word the same thing. Responses ii and iii are representative of the overall position of Egg

Films in its reply:

ii. We deny the unions allegations. The employer, in the normal course

of bargaining, has proposed an agreement that reflects the

practicality required for the employer to compete efficiently with

similar businesses in Nova Scotia and abroad. The union has been

unwilling to negotiate any of the items they raise in section ii.

iii. We deny the unions allegations. The parties have met 3 times face-

to-face, including conciliation. The employer has attempted to

negotiate with the intent of concluding a collective agreement. The

union has not modified any of its opening positions.

[50] The reply introduced what became Egg Films principal position throughout these

proceedings:


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a. it could not compete in the market place if it was subject to the

terms and conditions of a collective agreement;

b. the change in its proposals between November 27th and

November 28threpresented good faith bargaining on its part; and

c. the failure of the negotiations lay with the Unions failure to

respond to its proposals of November 27thor November 28th.

[51] On March 23rd the Boards Chief Executive Officer (CEO) acknowledged Egg Films

response. She added that she would begin the process to schedule a case management

conference and our office will be in touch with the parties involving the same. The next

day, March 24th, she sent a follow up email to Mr. Hachey as follows:

Good morning Mr. Hachey,

In preparation for setting up the Case Management Conference (CMC)I [am] writing to ask whether you will be represented by counsel at the

CMC and subsequent hearing?

[52] Mr. Hachey, in an email copied to Ms. Thomas and Mr. Andriani responded on March 24th

as follows:

We didnt think there would be a hearing and thought complaint would

be dismissed. When do you want to do the conference call? We are busy

and in and out of the province over the next month. During negotiations

we were represented by Ivano Andrianihe will be on this call and is ccd

here.

[53] On the same day Mr. Andriani weighed in with an email to the Boards CEO, copied to Mr.

Hachey and Ms. Thomas, as follows:

Just a point of clarification in your email you speak of the subsequent

hearing. I have read the Boards Procedural Statement re CMC. Have we

misunderstood the purpose and process of the CMC? We didnt

understand that a subsequent hearing is automatic. Please clarify so

that the employer can take appropriate decisions.

[54] The Board finds Mr. Hacheys and Mr. Andrianis responses odd. In suggesting that a CMCwould be set up the Boards CEO was following the normal practice of the Board when

dealing with s.35 (and indeed most) applications. Most if not all s.35 applications proceed

to hearings before the Board if they do not settle beforehand. Case management

conferences (CMCs) are employed by the Board in normal course in order to flesh out

issues in dispute and deal with any preliminary matters necessary to secure the most

effective use of the Boards and the parties time and resources. And Egg Films must have

known this. It has since 2011 been represented from time to time by skilled and


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knowledgeable management-side lawyers. It has had a number of matters before the

Board, both with respect to the initial certification application and then later with the first

contract application. It cannot seriously have thought that its letter of March 20thwould

have been sufficient to dispose of the Unions complaint. Nor can it have reasonably

thought that the CEOs question as to whether it would be represented by counsel at the

CMC and subsequent hearing was anything but administrativein nature. But, as we shallsee, it and the counsel it subsequently retained apparently did think that her question

revealed a biased predetermination on the part of the Board.

[55] On March 26, 2015 Egg Films notified the Board that it had retained counsel (Mr. Blair

Mitchell).

[56] On March 31stthe Boards CEO advised the parties that a CMC would be held on April 7 th,

and that she would be the moderator on the call.

[57] On April 2

nd

Mr. Blair advised the Boards CEO on behalf of Egg Films that he objected toher moderating the CMC because of what he called an apprehension of bias. He advised

that he had reviewed the standard list of topics generally covered in a CMC (such as

identities of parties and counsel, identification of agreed facts, issues to be addressed,

witnesses to be called, whether any further investigation was required, selection of

hearing dates and so on). He pointed to the email correspondence between her and Mr.

Andriani on March 24thand then said as follows:

The relevant subject matter is, firstly, your preclusion that the matter

would be referred to a hearing in individual communications with Mr.

Andriani. It is, secondly, your unilateral determination, without

consultation, once the matter was raised, to inform the Complainantthrough one of its lawyers, Mr. Pink, by way of copy, that the relevant

query had been raised by the Respondent.

[58] Counsel added that these facts demonstrated the following:

1. Predisposition that this matter will be referred to hearing;

2. Your pre-emptive determination that the Complainant should be

notified of the issue.

[59] Counsel concluded as follows:

In these circumstances, informed of these circumstances, acting

reasonably, and having thought the matter through, Egg Films Inc.

respectfully apprehends bias should you chair this impending pre-hearing

conference and respectfully requests that the chair be assumed by an

individual whose conduct is free from the apprehension.


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[60] On April 6th counsel for the Union objected to Mr. Mitchells letter of April 2nd. He

submitted that there was no basis for the concern expressed by Egg Films as to the Boards

CEO acting as a moderator of the CMC, pointing out that her role was solely an

administrative one. He argued that accommodating the request that she recuse herself

would only delay matters.

[61] The CMC proceeded as planned with Vice-Chair Lafferty clarifying for the parties that she

was chairing the CMC and the Boards CEO was the moderator. The parties had no

objection to Vice-Chair Lafferty chairing the CMC.

[62] At the CMC Mr. Mitchell raised preliminary issues with respect to the Unions complaint.

He was advised that CMCs were designed to deal with matters of procedure and not of

substance. He agreed to file his submissions with respect to the preliminary issues he was

raising by July 6th. The parties also agreed to exchange binders of the evidence they

intended to rely upon by August 3 rd. Hearing dates were set for August 27, 28 and 31,

2015.

[63] On June 30thMr. Mitchell advised the Board that he wanted to exercise access to the

case management file or files pertaining to LB-0592 and LB-0011. These were the files

with respect to the first collective agreement (Egg Films No. 2) and the certification (Egg

Films No. 1) respectively.

[64] Mr. Mitchell was not able to file his submissions with respect to his preliminary objections

until July 10th. The substance of the objections he raised are contained in the preliminary

overview, as follows:

[The Unions] complaint represents the structural misuse of the processof the Minister and the Board by the Applicant, IATSE Local 849 and its

International to support and further its Internationals ambitions of

expansion into the commercial production sector elsewhere in Canada.

To that end it seeks to use process to provide a platform to market the

International to the field elsewhere in Canada to extend its control into

that market. To that end, the complaint seeks to support secondary

activities against Egg, including activities which are wrongful and

unlawful, and to use the Boards process to attempt to support those

activities and to achieve or influence an agreement that it would not and

could not expect to achieve in collective bargaining.

[65] He added that what he termed was Egg Films:

... objection of abuse of process should be heard immediately, before the

substantive complaint is entertained. The Unions complaint should be

rejected in its entirety and Egg awarded such further relief as the full

jurisdiction of this Board may permit.


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[66] There followed 28 pages of submissions. Included in them were complaints about what

Mr. Mitchell alleged were false comments made about Egg Films position in the social

media campaign following the lockout; suggestions that the Union was simply a stalking

horse for plans he said the International Union had to organize other locals across Canada;

and the alleged existence of bias on the part of Vice-Chair of the Board who had sat on

the panel that decided to certify the Union in Egg Films No. 1. Mr. Mitchell submitted thatgiven this context the Unions complaint and application represented an abuse of process

and should be dismissed: Unions Book of Documents received Sept 1, 201 (hereafter

UBD), Tab 7.

[67] On the same day Mr. Mitchell wrote to the Unions counsel to reject a request for

documents that the Union had made on April 28th: UBD, Tabs 8 and 2. The Union had

requested production of financial documents, including copies of contracts for

commercial productions over $10,000.00; copies of unsuccessful bids for productions

over $10,000.00; and copies of audited financial statements for the years 2013 and 2014:

UBD, Tab 2. Mr. Mitchell in his correspondence suggested that the Union had never askedfor such documentation during the November 2014 negotiations. He suggested that the

information sought was irrelevant, and that the request is not an ingenuous exercise of

the process of the Board, that IATSEs failure to seek this information in a timely way

disqualifies it and that the exercise of the request is an abuse of the Board: UBD, Tab 8.

He further explained the position of Egg Films as follows:

It is simply not sustainable that an International Union such as IATSE, with

all of the national and international resources it has brought to bear in

this case, has acted in any but a tactical sense to seek to obtain this

information. It is likewise wholly unsustainable to suggest that otherwise,

that, while it slept for six or four months as the case may be, it suddenlycame to, post-lockout, to the sudden realization that there had been an

unfair labour practice and that it should now seek access to financial

information of our client: UBD, Tab 8.

[68] Again on the same day, July 10th, Mr. Mitchell sent his own demand to Mr. Pink, counsel

for the Union, seeking documents and records that included (but not limited to) the

following:

a. Documents touching upon or concerning IATSEs certification of

the commercial production field in Canada from 2009 to the time

of the certification of Egg;

b. Documents touching upon or concerning the feasibility of

collective bargaining in the commercial production field in Nova

Scotia prepared prior to the certification of Egg;

c. Documents touching upon or concerning the feasibility of

collective bargaining in the commercial production field

elsewhere in Canada prepared prior to the certification of Egg;


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d. Communications or records of communication between and

amongst the International headquarters, the Union and other

IATSE locals in Canada touching upon or concerning the

implications of the certification of Egg in respect of organizing in

Ontario commercial production; and

e. Records of communications pertaining to any Board decision

involving Egg Films and the Union, the Supreme Court of Nova

Scotia, the Nova Scotia Court of Appeal or the Supreme Court of

Canada with reference to organizing commercial production in

Ontario or in Canada elsewhere than in Nova Scotia: UBD, Tab 9.

[69] On July 13thcounsel for the Union wrote to the Board. He asked that a teleconference be

set up with the parties to discuss Egg Films refusal to produce the requested documents:

UBD, Tab 10.

[70] Counsel for Egg Films responded on July 16th: UBD, Tab 11. He complained that the

request of counsel for the Union did not explain his interest in having the teleconference,

what he sought to achieve, or the basis for his request. He continued:

This is not adequate notice to allow our client to consider whether the

subject matter of the request is, in its view, a necessary or appropriate

matter for such a conference, to consider its own position in respect of any

outcome sought, or the facts or authorities in support of the same. These

are fundamentals of notice and are at the foundation of procedural fairness

to which any party to this matter is, of course, entitled: UBD, Tab 11.

[71] On July 21stMr. Pink, counsel for the Union advised that it would not be producing the

documents that had been sought in Mr. Mitchells letter of July 10 th: UBD Tab 12. In his

view none of the documents sought were relevant to the issue of whether Egg Films had

breached its duties under s.35 of theAct.

[72] Also on July 21stMr. Pink wrote to the Board to suggest that a notional hearing be

convened to consider the respective positions of the parties with respect to document

production: UBD, Tab 13. (A notional hearing is a procedure developed by the Board to

deal with preliminary matters, particularly those dealing with the production of

documents, that may require a Board order: see, for e.g., Labourers International Union

of North America, Local 615 v. Total Demolition Limited and Maritime Demolition Limited2011 NSLB 92 (CanLII) at para.3.)

[73] On July 24thcounsel for the Union filed its submissions with respect to the preliminary

objections of Egg Films: UBD, Tab 14. On the same day Mr. Mitchell repeated his request

to the Board that it provide him with access to the Boards case files, as originally

requested in his correspondence of June 30th.


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[74] On July 27ththe Boards CEO advised the parties that a notional hearing would be set up

for a day during the week of August 10 th, and sought dates from counsel mutually

convenient to them: UBD, Tab 15.

[75] On July 28ththe Boards CEO responded to Mr. Mitchells request for access to the Board

case files in LB-001 (the certification decision) and LB-0592 (the first collective agreementdecision). She advised him that Board files were divided into two sections. One section

contained material that the Board received from or sent to parties in a proceeding. That

part was available, and a copy of those sections of the two files was sent to him. The other

section contained internal administrative notes of Board staff and members which were

considered confidential and for use of the Board only. This part of the file was not to be

released to the public in general or to parties. Hence a copy of that section was not

provided to him.

[76] Mr. Mitchell replied to the CEO on July 28th. He demanded that the Board at its first and

immediate convenience set out the legal authority on which it relies to preclude accessto this information [i.e., the confidential section of a Board file].

[77] On July 30thMr. Mitchell wrote to object to the Boards advice that a notional hearing was

to be held. The substance of his objections appeared to be that his abuse of process

motion should be dealt with first; that the Board lacked jurisdiction to hold a notional

hearing; and that it appeared to him that the Board had already pre-judged (in the Unions

favour) the s.35 application, since the documents sought by the Union becomes relevant

only if the complaint is entertained: UBD, Tab 16.

[78] Mr. Mitchells letter crossed in the mail with a letter from the Board dated July 30 th, in

which the Board advised that a notional hearing would be held on August 13thto dealwith the Unions request for documents: UBD, Tab 17.

[79] After a further flurry of emails and correspondence the Board issued directions on August

7thwith respect to the objections raised by counsel for Egg Films, and the dispute over

the production of documents. The direction was that the hearing of the Unions complaint

would proceed on the dates that had already been set (namely, August 27th, 28thand 31st);

that the motion of Egg Films to strike the application on the grounds that it constituted

an abuse of process would be dealt with at the hearing; and that the respective demands

of the parties for documentary production would be heard at the notional hearing now

scheduled to be heard August 13th

: UBD, Tab 33.

[80] On August 7th Mr. Mitchell responded to the Boards direction. He asked that it be

reconsidered. He argued that the direction:

... is wholly unanticipated, was unsignalled, gives new directions in

respect of the matter, not in accordance with past communications to

and including as recently as August 5, issued without notice, without


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notice [sic], without the opportunity to be heard and contrary to

expectations created by the Board, as recently as 36 hours ago.

With deference the Respondent submits that this new, wholly

unexpected and wholly without notice direction is not consistent with the

rules of natural justice or principles of natural justice or principles of

procedural fairness in matters of utmost important to all ... commercial

and other interests at play in this matter for, at least, the Respondents:

UBD, Tab 34.

[81] Mr. Mitchell then served a Notice of Motion in the Supreme Court of Nova Scotia,

returnable August 12th, seeking a stay of the notional hearing: UBD, Tabs 35 and 36. On

August 11ththe Honourable Justice McDougall reviewed the materials that had been filed.

His Lordship advised that he was not prepared to hear the motion on such short notice,

especially one that in ordinary course would more likely take days rather than hours to

hear: UBD, Tab 39.

[82] Mr. Mitchell then sent a letter to the Board dated August 11th, seeking an adjournment

of the notional hearing to permit judicial review to proceed as promptly and efficiently

as possible: UBD, Tab 40. The Board refused the request for an adjournment the same

day: UBD, Tab 45.

The Notional Hearing on August 13th

[83] The notional hearing came on before Vice-Chair Richardson on August 13th. Three

motions were before him:

a. A motion by Egg Films for an order directing access to that part

of the Boards file that contains internal notes, memoranda,

correspondence or emails between and amongst Board staff,

and between and amongst Board staff and members of the

Board, or between and amongst members of the Board;

b. A motion by the Union for an order requiring Egg Films to

produce documents itemized in the letter dated April 28 th, 2015

(referenced above); and

c. A motion by Egg Films for production of the documents listed in

the letter dated July 10th(referenced above).

[84] After hearing extensive argument and submissions from counsel for the parties, the Board

issued an order (with reasons to follow) on August 14ththat:

a. Dismissed the two motions of Egg Films, and


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b. Ordered production by August 21stof some (but not all) of the

Egg Films financial information that had been sought and listed

in the Unions letter of April 28th. The order also contained a

confidentiality provision limiting review of the information to the

Unions counsel and their instructing representative: IATSE, Local

849 v. Egg Films Inc.2015 NSLB 147.

[85] We pause here to note that the reasons for the allowance of the Unions request for

production, and the denial of that of Egg Films, will be dealt with later in these reasons.

The reasons for the dismissal of the motion for access to the Boards internal, confidential

communications between and amongst Board staff and members of the Board can be

dealt with here.

[86] In the Boards opinion it is beyond doubt that the record of such communications is

privileged and confidential. They are part of the Boards internal administrative and

decision-making processes. Board staff must be free to communicate amongst each other

for the purpose of processing applications made by parties to the Board. Board membersmust be free to communicate amongst each other, and with Board staff, in the same way.

Providing public access to such communications would impose a chill on such

communications that would be detrimental to the Boards administration and the

resolution of the matters brought to it.

[87] Separate and independent of this point, counsel for Egg Films had submitted that one of

the reasons he sought access to the Board files was to support his submission (and that

of Egg Films) that the Boards decision in Egg Films No. 1to certify the Union had been

the product of bias on the part of Vice-Chair Archibald, who sat on the panel in question.

Mr. Mitchell offered no evidence in support of this submission, other than an articlewritten some years ago by Vice-Chair Archibald in his capacity as a labour law professor.

[88] There were two difficulties with this submission. First, Mr. Mitchell had to concede that

the article in question was known to the parties and to previous counsel for Egg Films at

the time of its various judicial review applications before the Supreme Court of Nova

Scotia and the Court of Appeal. If there was an argument to be made on that basis (and

the Board does not think that there was), the time to have made it was then. Second, and

flowing from the first, the attempt to raise the issue now, well after the fact, suggested

that the motion for access was a fishing expedition in aid of a collateral attack on the

Boards earlier decision with respect to certification. But that decision had been made

long ago. It had survived three challenges to it in the courts. It was time to move on.

[89] Egg Films collateral attack on the Boards earlier decisions also underlay its motion for

production of the documents it sought from the Union. As noted above, Mr. Mitchell was

seeking documents between the Union and the International made priorto the original

certification application, and relevant not to the Union in Nova Scotia but to the

Internationals unionization efforts (if any) in Ontario and Canada as a whole. But the

International was not a party to these proceedings. And more importantly, the issue in


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these proceedings was whether Egg Films had bargained in good faith in November 2014.

That issue had nothing to do with what happened in other years with non-parties with

respect to other events. The documents sought were wholly irrelevant to the

proceedings, and Egg Films motion for production of them was dismissed for that reason.

[90] Returning to the chronology, shortly after the release of the Boards order for disclosureon August 14thEgg Films dismissed Mr. Mitchell as its counsel. Ms. Thomas (who had been

present with Mr. Mitchell at the notional hearing) advised the Board that Egg Films would

be representing itself at the hearing. Ms. Thomas was the representative who appeared

at the hearing.

[91] On August 21stMs. Thomas advised the Board and counsel for the Union that Egg Films

... will not produce financial statements, contracts, nor invoices per the

Production Order dated 2015-08-14.

The production of our financial documents is an invasion of our privacy

and the privacy of our valued clients. Our clients have an expectation of

confidentiality with Egg Films. We have agreed to keep their information

private and confidential and the request by the union, and the

subsequent order of the Board is a direct breach of our contracts with our

clients. Egg Films will not disclose any information about them, their

contracts, nor billing information.

We will submit our documents and extensive witness list [for the hearing]

on Monday: UBD Tab 48.

[92] As it turned out, Ms. Thomas called no witnesses, having subpoenaed none. According toher all were working or were otherwise unavailable.

Submissions on Behalf of the Union

[93] Mr. Pink commenced his submissions with the observation that theActrequires parties

during collective bargaining to make every reasonable effort to conclude an agreement.

They have to make a good faith effort, not just go through the motions. The test as to

whether that duty has been complied with is objective.

[94] Counsel submitted that in this case it was clear that Egg Films had breached its duty tobargain in good faith. But since a good faith effort to arrive at an agreement was a

precondition to conciliation, which in turn was a precondition to the exercise of the right

to lock out employees, the failure of Egg Films to bargain in good faith meant that its lock

out was unlawful.

[95] Counsel took the Board through the history of the relations between Egg Films and the

Union. He noted that at every step of the way the former had resisted the latters


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certification. It had adopted the position that only it had the best interests of its workers

at heart, and that its workers could not and should not be unionized. That approach

paralysed their [Mr. Hachey and Ms. Thomas] thought process. They were not able to

accept the Boards earlier decisions and kept attempting to subvert them. Ever since 2011

Egg Films has made and continued to make the same arguments: its workers were not

employees; unionization was not appropriate for commercial productions; a collectiveagreement cannot work in this industry. Indeed, Mr. Mitchell, while counsel for Egg Films,

made the same arguments in his written submissions of July 10, 2015 to the Board.

[96] Counsel then pointed to the Boards decision in Egg Films No. 2. He submitted that it was

clear from that decision that the parties had been able to get close to agreement on a

number of terms and conditions of employmentsome of which ended up in the first

collective agreement. But in the November 2014 negotiations those terms and conditions

were suddenly out the window. Egg Films had instead reverted to the position that it

had adopted at the very start, that the Union had no role to play on behalf of its workers.

Egg Films in its proposals established upper thresholds that would exclude the Union.They were designed to drive the parties to impasse. That was what Mr. Vermeir thought.

There was no evidence from Egg Films to contradict that conclusion. The Board should

infer that Mr. Andriani was not called because Egg Films knew that his evidence would

not support its position.

[97] Counsel submitted that the real intent of Egg Films in adopting the bargaining positions

that it did was simply to be able to say that it had tried bargaining so that it could then

proceed to conciliation and, eventually, to lock out the Unions members.

[98] Counsel submitted that the jurisprudence was clear that for an employer to press to

impasse a position that would in effect exclude a union from its role as bargaining agentwas to bargain in bad faith: see, for e.g., Re Vancouver Symphony Society v. IATSE, Local

118[1993] BCLRBC No. 468 at paras.45-46, 48-49; CUPE, Local 1788 v. John M. Cuelenaere

Library Board [1991] SLRBC No. 14 at paras.19-24; UFCW, Local 401 v. Economic

Development Edmonton2002 CarswellAlta 1748 (Alta LRB);Amalgamated Transit Union,

Local 1374 v. Brewster Transport Company Limited 1986 CarswellNat 940 (CLRB) at

para.103.

[99] Turning to what he submitted was Egg Films unlawful act, counsel submitted that the

Board had the jurisdiction under s.36(2) of theActto order compensation by way of the

wages that employees would have earned had the lockout not happened: Scott Chapmanet al and International Association of Machinists and Aerospace Workers, Local 1763 and

Courtesy Chrysler2001 CarswellNS 519 (NS LRB) at paras.59-61.

[100] Counsel further submitted that the Board had the power to order Egg Films to not simply

return to the bargaining table, but to severely restrict, curtail and limit what it could

bargain about: International Association of Machinists and Aerospace Workers, Local


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Lodge 1763 v. 2201336 Nova Scotia Limited, cob as Courtesy Chrysler2002 CarswellNS

763 (NS LRB); CUPE, Local 4027 v. Iberia Airlines of Spain1990 CarswellNS 980 (CLRB).

[101] Counsel for the Union in his submissions at the hearing argued for several remedies. In

brief they were as follows:

a. A declaration that Egg Films had breached its duty to bargain in

good faith pursuant to s.35(a) of theAct;

b. A declaration that the lock out was accordingly unlawful, and an

order for compensatory damages flowing from the lock out;

c. An order for compensatory damages with respect to the Unions

expenses associated with the notional hearing in August;

d. A declaration that the parties return to collective bargaining

within 14 days of the Boards order;

e. A declaration that Egg Films remove any clause or proposal that

had the effect of removing the Unions jurisdiction from the

bargaining unit, though Egg Films could still seek to negotiate a

higher threshold than $70,000.00;

f. In the event that negotiations broke down and the parties went

to conciliation, that within 36 hours of the breakdown of

conciliation the parties return to the Board; and

g. That the Board retain jurisdiction with respect to any matters

arising from its order.

[102] In subsequent written submissions dated August 31, 2015 counsel modified the remedies

sought to include, amongst other things, an order for mandatory arbitration. (Ms. Thomas

was given an opportunity to respond to these written submissions but did not.)

Submissions on Behalf of Egg Films

[103] Ms. Thomas commenced her submissions on behalf of Egg Films by reading the preamble

to the proposed draft collective agreement that Mr. Andriani had presented to Mr.

Vermeir on November 27, 2014. She argued that Egg Films had to be nimble and quickto survive in a competitive environment. She argued that the draft was modelled on

something the Union had presented to Egg Films years before its application for

certification in 2011.

[104] Ms. Thomas submitted that Egg Films had on the second day of bargaining altered its

proposal by reducing the threshold to $110,000.00, and by adding some terms (for

example, one dealing with the appointment of shop stewards). The Union, she said, had


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not altered its first position and indeed had made no counter-proposal to either of Egg

Films proposed collective agreements. Nor in the five months following the end of

negotiations on November 28thhad the Union provided anything else. She submitted that

the Union had instead employed bullying tactics once the lockout began by holding

public demonstrations and launching Facebook and Twitter social media campaigns

against Egg Films.

[105] During this final submission/argument stage of the hearing Ms. Thomas also attempted

to introduce a video taken at one such demonstration to demonstrate what she referred

to as the Unions bullying behaviour. Counsel for the Union objected, and the Board ruled

that it was too late for her to introduce such evidence at this pointparticularly since she

had refused to present either herself or any other witness for Egg Films. Ms. Thomas

nevertheless submitted that the Unions campaign was a form of hard bargaining, and if

the Union could do it she did not see why Egg Films could not do the same during the

November sessions.

[106] During her submissions Ms. Thomas made two positions of Egg Films clear: first, that it

did not acknowledge the Unions role as bargaining agent for its members; and second,

that Egg Films was entitled to negotiate directly with those members. So, for example, in

referring to the draft collective agreement that had been presented to Mr. Vermeir in

November 2014 she stated that we presented a good proposal that worked for us and

for our employees. She added that its negotiation stance was an attempt to get more

money in the crews pockets. When the Board asked her at one point whether it was not

the Unions responsibility to represent its members during bargaining her reply was that

she begged to differit is always my job to care about our employees.

[107] Ms. Thomas submitted that the first collective agreement was too long and too complexto be applied to one- or two-day shoots that were typical of commercial productions. A

two-page agreement, such as the one it had presented in November 2014, was more

appropriate. That being the case, Egg Films presentation of that type of an agreement

could not be taken as bargaining in bad faith. She argued too that what the Union was

trying to do was use the Egg Films collective agreement as a springboard for a

unionization drive in Toronto, where there was a more robust commercial production

industry. She submitted that the Unions conduct throughout consisted of bullying tactics

and lies, and that only the Board could stop itby dismissing the Unions application.

Reply on Behalf of the Union

[108] In reply Mr. Pink submitted that much of what Ms. Thomas had said during her

submissions was based on no evidence properly before the Board. It was in any event

irrelevant, or a collateral attack on the Boards certification decision, or both. The

arguments advanced were the same arguments that had been made again and again over

the history of the relationship between Egg Films and the Union.


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Analysis and Decision

[109] We commenced with the observation that it is important to emphasize what this

application is notabout. It is not about whether the Boards decision to certify the Union

as the bargaining agent for a bargaining unit composed of workers engaged by Egg Filmsin their commercial shoots was right or wrong. The decision was one that was reasonable

and within the Boards jurisdiction to make. The courts of Nova Scotia have affirmed that

position twice. The Supreme Court of Canada saw no reason to change that.

[110] Nor is this an application to the Board to ask it to reconsider, vary or revoke that decision.

Such applications can be made pursuant to s.19(1) of theAct.

[111] Nor is this an application to decertify the Union. Section 29 of theActprovides that under

certain circumstances an application can be made to revoke a unions certification where

the Board is satisfied that the union is not fulfilling its obligations or that it no longerrepresents a majority of the employees in the unit.

[112] Both these avenues were and are open to either Egg Films or the employees in the

bargaining unit. They are the means by which changed circumstances can lead to

amendments toor revocation ofBoard orders. They are the lawful and legal steps that

Egg Films or other interested players can take to return the situation to what Egg Films

says it should beand the situation that it says is supported by the workers it employs.

[113] What Egg Films cannot do is ignore the law. It cannot conduct itself as if it is not bound

by theActor by the decisions of the Board. It cannot carry on as if the battles it has lost

were never fought and never lost. It must, as the saying goes, man up, take its lumps andmove on. To do otherwise is to invite chaos.

[114] What this application isabout is whether Egg Films made every reasonable effort to

conclude and sign a collective agreement pursuant to a duty that applies to bothparties

during the bargaining process pursuant to s.35(a) of the Act. What does this duty mean

and what does it entail? A good explanation is found in United Electrical and Machine

Workers of America v. DeVilbiss Canada Ltd[1976] 2 CLRBR 101:

The section imposes an obligation upon both employers and trade unions

to enter into serious discussion with the shared intent to enter into acollective bargaining agreement. Once a trade union is certified as the

exclusive bargaining agent of employees within an appropriate

bargaining unit the employer of those employees must accept that status

of the trade union. It cannot enter into negotiations with a view to ridding

itself of the trade union. And thus it can be said that the parties are

obligated to have at least one common objectivethat of entering into a

collective agreement and s.14 is intended to convey this obligation.But

this is not to say that they will or are obligated to have common objectives


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with respect to the contents of any collective agreement they might enter

into. The legislation is based upon the premise that the parties are best

able to fashion the law that is to govern the work place and that the terms

of an agreement are most acceptable when the parties who live under

them have played the primary roles in their enactment. In short, the

legislation is based upon the notion of voluntarism and reflected in the

many administrative and judicial pronouncements that neither trade

union nor employer is, by virtue of the bargaining duty, obligated to agree

to any particular provision or proposal. Therefore, while they must share

the common objective to enter into a collective agreement, the

legislation envisages that they have differences with respect to just what

the content of that agreement should be and those differences may force

the parties to have recourse to economic sanctions. (emphasis added)

[115] We have emphasized the passages that we did so as to make clear that Egg Films was not

obligated in November 2014 to conclude a collective agreement with the Union. But it

was obligated to make a good faith effort to do so. It was obligated to recognize that the

Union was the party with whom it was to negotiate. It did not have to agree with the

Unionbut it was not entitled to try to rid itself of the Union; or to undercut its

representation of the workers in the bargaining unit; or to insist that the Union accept

terms and conditions that would, in substance if not in form, lead to its neutering. Yet this

is what Egg Films did during the course of its negotiations with the Union.

[116] It is appropriate at this point to deal with the issue of Egg Films refusal to comply with

the Boards order to produce some of its financial records. It is the appropriate point

because the refusal of an employer to produce financial records can, in some situations,

be relevant to an allegation that it has failed to discharge its obligation to bargain in good

faith.

The Duty to Disclose in the Context of the Duty to Bargain in Good Faith

[117] The duty to bargain in good faiththat is, the duty to make every reasonable effort to

negotiate a collective agreementserves two purposes:

a. it reinforces the obligation on an employer to recognize the

bargaining agent; and

b. it is intended to foster rational, informed discussion thereby

minimizing the potential for unnecessary industrial conflict:

UEW v. DeVilbiss (Canada) Ltd [1976] 2 Can LRB Rep 101 (OLRB-

Adams) at p.114.

[118] This duty plays a role when determining whatif anyinformation the parties are required

to disclose to each other in the course of collective bargaining. In ordinary course an

employer is not obligated to open its books to the union during negotiations: Marshall-

Wells Company Ltd v. Retail, Wholesale & Department Store Union, Local 454 [1956] SCR


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511 at p.512. Collective bargaining is a card-game of sorts, and the parties are as a general

rule entitled to hold their cards close to their chests.

[119] There are however exceptions to this general rule. One exception arises when the

information is fundamental not just to the employers position at the bargaining table,

but to the unions ability to understand and respond to that position. Take the followingexample. An employer says that it needs a wage concession. The reason for that

concession lies in its deteriorating financial condition, but it refuses to produce that

information. The union is left without the information necessary to evaluate the

employers request for a concession. It refuses the concession, and recommends to its

members that they strike if the employer continues to insist on it. A strike ensues. The

employer goes under. The members are out of a job. Such a result is clearly not in the

interests of the employer, the unions members or society as a whole. On the other hand,

had the employer provided the information the union could have taken a different course

of action. Once it understood the employers financial condition it could have considered

altering its stance, or recommended a different course of action to its members.

[120] In this example the disclosure of financial information serves a number of the purposes

enshrined in law as well as in the Act. First, unions are bargaining agents for the

employees in the bargaining unit. In the world of commerce as in the world of labour

relations, agents are under a duty to keep the best interests of their principals in mind

when making recommendations to them. For agents to fulfill this duty they need to have

information that is fundamental to the decisions they make with respect to what

recommendations they are to make. Second, providing unions with the information

necessary for them to fulfill their duties as bargaining agents can lead to the avoidance of

unnecessary labour strife. Third, and related to the second, it can strengthen its role as

the bargaining agent for the employees in the bargaining unit. Indeed, it is for this reasonthat an employers refusal to provide financial information that is fundamental to a

position it takes at the bargaining table can lead to an inference that the employer is

trying to undercut or negate the unions role as a bargaining agent and hence the

conclusion that the employer is bargaining in bad faith: see USE v. Inglis Limited [1977]

Ont LRB Rep March 128 (Burkett) at para. 16; International Woodworkers of America,

Local 2-69 v Consolidated Bathurst Packaging Ltd [1983] OLRB Rep. September 1411

(Adams) at paras.41-44; see also Halifax Regional Municipality and Halifax Regional Fire

and Emergency Services v. Halifax Professional Firefights, Local 2682011 NSLB 65 (CanLII)

at paras.99-100, 101-108.

[121] Turning to Egg Films, throughout these proceedings the company has alleged in part that

the market in which it operated demanded that it be nimble and flexible. Those demands

meant, as Mr. Mitchell had argued in his written submissions of July 10, 2015, that the

commercial production sector was structurally unable to support meaningful collective

bargaining relationships: UBD, Tab 7, p.3. That position grounded its proposal during the

bargaining in November 2014 that it could agree to a collective agreement only if it did

not apply to productions with budgets less than $110,000.00. Yet it refused to provide


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the Union with any financial information at all that would assist the Union in evaluating

what impact such a threshold would have on its jurisdiction. Would it exclude all of Egg

Films productions from the scope of the collective agreement? Most? Some? Without

such information the Union was left in the dark as to the impact of the proposed threshold

on its jurisdiction. Nor could it evaluate the economic reasonableness of Egg Films

position. Such conduct undercut the Unions role as bargaining agent for its members. Italso rendered the Unions ability to advise its members nugatory. What answer could it

give its members as to the impact of the proposed threshold on its jurisdiction? The

answer is none.

[122] It is for this reason that the Board made the production order that it did on August 14,

2015. If Egg Films position was supported by its financial position then the Unions

complaint of bad faith bargaining would be undermined. On the other hand, if it did not,

the Unions argument would be strengthened.

[123] But as already noted, Egg Films defied the Boards order, and continued its refusal toprovide any evidence to support its position (other than bald assertions and argument)

that it had bargained in good faith. Ms. Thomas attempted to justify that decision by

raising concerns about its impact on client privacy. However, in doing so she made no

reference to the conditions respecting confidentiality and privacy that had been included

in the Boards order. We note as well that Egg Films made no request to the Board to

modify those conditions in order to protect the privacy of their clients (to the extent that

it may not have already been protected under the terms of the order). Nor was there any

explanation why the audited financial statements of Egg Films (ordered produced under

the Order) were subject to the same privacy concerns with respect to their clients. There

was simply a blanket refusal to comply with the Order. The Board can only draw an

adverse inference from such conduct, that the documents requested would havesupported a conclusion that the upper threshold insisted upon by Egg Films in its

negotiations would have had the practical effect of excluding the Unions jurisdiction from

most if not all of Egg Films commercial productions. Such a result is clearly not one that

the Union could have accepted. That in turn leads to the further inference that Egg Films

was intentionally bargaining to impassethat is, insisting on a provision not because it had

to, but because it wanted to force the Union either to leave (agree in effect to decertify)

or to resort to conciliation so that Egg Films could move to the next step: a lock out.

[124] With these observations in hand we turn to the Unions s.35 complaint.

The November 2014 Negotiations

[125] We begin here with the factual context to the negotiations. Between September 2013

and September 2014 Egg Films produced roughly 12 commercials. Union members were

employed on those productions. During that time there was no sign of any concern or

complaint from Egg Films. There was nothing to suggest that working under or pursuant

to the terms of a collective agreement caused any difficulty of any kind with its


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operations. Nor indeed was there any evidence that the Union members who worked on

the shoots were upset or unhappy or inconvenienced in any way by working under the

terms and conditions of employment laid out in the first collective agreement.

[126] We next move to Egg Films position that the terms of the collective agreement should

apply only to productions with budgets over $120,000.00. The level of the thresholdwould be of obvious concern to the Union. The higher the threshold the fewer the

productions that would fall under its jurisdiction under a collective agreement.

[127] We should say that it is clear from the history of the negotiations leading up to the Boards

decision with respect to the first collective agreement that the Union was prepared to

accept or at least consider some limit to its jurisdiction under the collective agreement. It

had after all proposed a lower threshold of $10,000.00 in its negotiations with Egg Films

in September 2013. It had at the same time proposed an upper threshold of $60,000.00

below which only a few of the collective agreement provisions would apply. Nor was there

any evidence to suggest that the Union was not prepared to be similarly flexible duringthe negotiations in 2014. But it is difficult to understand how it could be expected to

consider exercising such flexibility when Egg Films refused to provide any financial or

budgetary information concerning its productions. So, to take an example, if few if any of

Egg Films productions involved budgets higher than $110,000.00, the Union would be

excluded from its role as the bargaining agent and representative of its members. It

would, in effect, be decertified in fact if not in law. That being the case Mr. Vermeir would

need to have some idea of how many productions would in ordinary course exceed the

threshold and how many would not.

[128] The Board also notes that when the issue of thresholds had arisen during the negotiations

preceding the first collective agreement Egg Films had (as noted above) proposed athreshold of $80,000.00. No explanation was provided to Mr. Vermeir by Mr. Andriani of

the reason or rationale for a figure that was not just higher than the $70,000.00 that had

been in place during the first collective agreement, but significantly higher than what Egg

Films had itself proposed only a year earlier. It had not provided such information during

the first collective agreement. It had not indicated at any point that the $70,000.00

threshold imposed significantor indeed anyeconomic hardship on it.

[129] Mr. Vermeirs evidence was that he asked for some budgetary information to enable him

to evaluate the proposal to increase the threshold to $120,000.00and that Mr. Andriani

advised that he would attempt to get it. He did not refuse outright. That to the Boardsuggests that Egg Films own negotiator recognized the reasonableness of the Unions

request. But Egg Films clearly did not agree with its own negotiator, since it refused to

produce the information requested. In that context Egg Films proposal the next day to

reduce the upper threshold by $10,000.00 was meaningless.

[130] As noted above, as a general rule employers are not obligated to produce their financial

records to a union during the course of collective bargaining. However, an employer who


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