While collective agreements are generally accessible to the public, the process of bargaining itself is private and typically carefully guarded. What happens when one side tries to bring "observers" to the process, and has them sit in on what is usually a private meeting? The answer may surprise you.

In Pro Vita Care Management Inc. and the Hospital Employees' Union (PDF), the British Columbia Labour Relations Board was faced with a bad faith bargaining complaint brought by a union against an employer who provided healthcare services at four separate facilities. Each facility was individually certified by the union, with its own specific collective agreement. Furthermore, each collective agreement contained a provision outlining the size of the bargaining committee on the union's side.

When bargaining for the first site commenced, the union declared that it had adopted an "open bargaining policy" and brought members of its negotiating committees for the three other facilities to the table to attend as "observers". The employer immediately objected to the presence of those observers. When it learned that the union insisted on bringing observers the next day at another bargaining table, the employer refused to meet for bargaining. A complaint for unfair labour practice ensued.

The union justified the presence of its observers by claiming they would be better prepared for the collective bargaining at their respective facilities. According to the union, the employer was improperly imposing pre-conditions to the commencement or resumption of bargaining.

For its part, the employer argued that it was the union who was attempting to unilaterally dictate the format of bargaining, while also violating the terms of the collective agreement regarding the size of the bargaining committee.

Surprisingly, the Board agreed with the union's position. The Board found that the union was not attempting to unilaterally alter the bargaining structure since there were still individual bargaining tables for each facility. Standardizing the terms of collective agreements was understandable as well according to the Board. Lastly, there was no evidence that the observers were disruptive, and their presence did not turn the otherwise private bargaining into a "free for all" open to the public. Oddly, the Board did not expand on the employer's argument that the observers violated the provision regarding the size of bargaining committees.

It is our understanding that the employer is seeking to appeal this decision by way of an application for reconsideration at the British Columbia Labour Relations Board.

Unless and until the decision is overturned, it is possible that other employers, particularly those with multiple locations in separate certifications, could see strangers attending bargaining in the future. In those circumstances, the ability to object to their presence may be limited. We recommend that employers who are concerned about this engage in prebargaining protocol discussions with their union, and consider strict confidentiality conditions on any documents produced in the bargaining process.