Albert Mills et al. v. The Canadian General Electric, 1980 CanLII 778

[1980] OLRB Rep. August 1179

2425-79-U Albert Mills, Ray Peters, James Shaughnessy, Salvatore Fryia, Roger Wilson, Gerhard Gross, Edwin Sherk, Roger MeQuade, Ivan Mills, John Murdoch, Complainants, v. The Canadian General Electric, Respondent.

BEFORE: George W. Adams, Chairman, and Board Members J. D. Belland W. F. Ruther­ford.

APPEARANCES: Richard J. Taylor, Albert Mills, and others for the complainants; Edward

T. McDermott and J. Reynolds for the respondent.

DECISION OF THE BOARD; August 5, 1980

1. This is a complaint brought under se~ Lion 79 of The Labour Relations Act alleging a violation of section 14. What is interesting or novel about the case is that the complaint is brought by ten employees of the respondent company who are members of the United Electrical, Radio and Machine Workers of America (hereinafter referred to as "the union"). It is admitted on behalf of the complainants that the trade union is their exclusive bargaining agent and that the complaint is not being brought on the trade union's behalf. Moreover, the trade union was not named as a party respondent and counsel for the complainants expressly disclaimed any interest in adding the trade union as a respondent. This being the case the respondent company, by way of a preliminary motion, seeks to have the complaint dismissed on the basis that the complainants lack the legal standing to bring a complaint alleging a breach of the bargaining duty. Before considering the respondent's argument in this respect and the complainant's reply, a brief review of the background of this complaint, as agreed to by the parties, is useful.

2. The complainants allege that they have been dealt with by the respondent contrary to section 14 and request:

(a) that the Board direct the respondent to bargain in good faith and negotiate the terms of the pension plan between itself and the indivi­dual employees in good faith; and

(b) that the Board direct that the collective agreement between the re­spondent and trade union be re-negotiated with respect to the pro­visions dealing with the "voluntary" portion of the pension plan.

3. The particulars on which the complaint is based are set out at paragraphs 4 to 7 of the complaint:

"4. The following is a concise statement of the nature of each act or omission complained of:

On or about the time and period of negotiations for a collective agree­ment between the said Respondent and United Electrical Workers, the said Respondent acted in bad faith and breached its trust obligations made between itself and the various Complainants which arose out of and by virtue of a pension plan negotiated and agreed upon between the respective parties. The Complainants allege that the Respondent acted contrary to the provisions of Section 14 of The Labour Relations Act.

5. No action has been taken on behalf of the Complainants for the adjustment of the matters giving rise to the complaint apart from repre­sentations to the Pension Commission of Ontario.

6. The Complainants as set out in paragraph 1 are affected by the com­plaint in that they are each a member and entitled to the benefits which have accrued under the pension plan agreement between their trade union and the Canadian General Electric.

7. Other relevant statements:

The Pension Plan noted in the above application does not directly form part of the collective agreement, but is constituted and included in a memorandum of agreement formulated between the Company and the United Electrical Workers.

Each of the Complainants made voluntary contributions to that part of the pension plan known as the voluntary plan. In negotiating with the United Electrical Workers for a new collective agreement, it was proposed that the existing pension plan be substantially amended and altered. The proposed alteration would have violated the trust pro­visions formulated between each of the individual employees who made voluntary contributions, and the Respondent over the last twenty-seven years.

It is alleged by the Complainants that the Company acted in bad faith in failing to recognize and acknowledge that each individual contributor to the voluntary portion of the existing pension plan had made a private and expressed agreement directly between themselves and the Company in reference to benefits which have accrued or did accrue under the plan. By failing to acknowledge its direct contractual relationship with each individual employee in reference to this particular plan or portion thereof, it acted in bad faith in continuing to negotiate with the Trade Union without representations being made directly to each of the indivi­dual contributors.

It is further alleged by the Complainants that the Respondent has bargained improperly, and there has been an unfair impairment of the pension benefits which have accrued under the voluntary portion of the old plan.

It is further stated by the Complainants that the Respondent failed to provide the Complainants or any individual employee enrolled in the voluntary portion of the Plan with the appropriate information for proper bargaining.

It is further stated that the Respondent failed to provide the Trade Union, United Electrical Workers, with the proper information in respect to the negotiation of the new proposed Pension Plan." [emphasis added]

4. The complainants are individual employees of the respondent at its Peterborough location which employs 2,600 employees. The trade union was certified as bargaining agent in 1946 and collective bargaining with the respondent company now embraces twelve other locations (and locals of the trade union) involving 6,000 employees. The most recent agreement was entered into on December 24, 1979 and it is the treatment of pensions in this round of bargaining which, as the complaint shows, has given rise to this complaint.

5. A pension plan, apparently company-wide, has been in effect since the early 1950's. But as was the case in the "early days" of many collective bargaining relationships in this Province, the relationship between the pension plan and collective bargaining was uneasy. See generally Adams, Bell Canada and the Older Worker: Who Will Review the Judges?(1974), 12 Osgoode Hall L. J. 389. The trade union apparently asked for a basic non-contributory plan in 1953 to replace what was described as a very "slight plan" existing before then. The respondent company refused the request and, over the trade union's objection, introduced a compulsory contributory plan. However, the trade union took no steps to have the plan set aside and thus the plan was continued through the 1950's with various modifications and with employees making contributions into a fund known as the Canadian General Electric Pension Trust. The respondent company matched these employee contributions.

6. In 1960 the trade union, apparently for the first time, played an active role in reforming this pension plan. Out of its involvement emerged what has been referred to as a "dual plan." One part was a so-called "basic plan" to which only the respondent company contributed and which entitled employees to certain defined benefits on their retirement having regard to a number of conditions and qualifications relating to age, service and earnings. Several modifications to this basic plan through collective bargaining were made over the years. A second part of the plan as reformed was a "voluntary introductory plan." In addition to the benefits available under the basic plan, an employee was able to receive additional benefits on his retirement by making contributions under this portion of the pension plan. Presumably, this part of the plan was a remnant of the initial compulsory contri­butory plan, but, whatever its history, benefits under this plan were defined in terms of service and employee contributions. This second part of the plan was also modified many times over the years through collective bargaining. Indeed, because of the apparent Canada-wide nature of the plan, the amendments must have been negotiated with several trade unions. However, the matter before the Board involves only that aspect of the plan applicable to the respondent's collective bargaining relationship in Ontario with this trade union — a relationship applying to its Davenport, Scarborough, Trenton, Royce, Ward Street, Port Union, Peterborough, Carboloy, Caledonia, Burlington, Dufferin Lamp, Guelph and Barrie plants. An example of an amendment to the plan through this collective bargaining relationship prior to the most recent collective agreement was a memorandum of agreement dealing with pensions for the 1977-79 collective agreement. This memorandum is brief and worth setting out in full to give the flavour of how previous amendments have been handled between the parties.

"MEMORANDUM OF AGREEMENT- PENSIONS

This Memorandum of Agreement between the Canadian General Electric Company Limited and the United Electrical, Radio and Machine Workers of America, and its Locals 507,508,509,515,516,519, 524, 526, 533, 537, 541 and 545, representing certain employees of Davenport, Scarborough, Trenton, Royce, Ward Street, Port Union, Peterborough, Carboloy, Caledonia, Burlington, Dufferin Lamp, Guelph and Barrie Plants of the Company sets out the basis of settle­ment agreed to in the matter of Pensions as follows:

The amendments to the 1976-77 Pension Agreement referred to in the Company's settlement offer dated January 18, 1978 as "Cana­dian General Electric Pension Plan — Amendments" are attached hereto as Appendix P-I. A new Pension Agreement between the parties, of which the new Pension Plan will form a part, will be prepared by the Company to incorporate the said amendments.

All the terms and conditions of the 1976-77 Pension Agreement and the amended Pension Plan referred to therein except as modified in accord­ance with the above will be continued unchanged. The new Pension Agreement will be signed by the parties upon completion of preparation of the text.

APPENDIX P-I

PENSION PLAN

Amend the Canadian General Electric Pension Plan as follows:

Effective January 1, 1978, extend the scaled basic formula ($6.20

— $9.00 per month per year of credited service) to include credited service to December 31, 1977.

Effective January 1, 1979, extend the scaled basic formula ($6.20— $9.00 per month per year of service) to include credited service to December 31, 1978.

Effective January 1, 1979, increase the current supplemental pay­ment to $6.00 per month per full year of credited service beginning at 10 years and up to a maximum of 30 years credited service.

7. A copy of the Canadian General Electric Pension Plan as amended January 24, 1978 and as it existed prior to its amendment in the latest round of negotiations (Exhibit 3) was also introduced into evidence. Obviously, it is a lengthy and complex document. But a few excerpts from it should be reproduced.

Section 1, paragraph (1), entitled "Eligibility and Participation", provides:

"Each employee in service on January 1, 1959, and each employee entering service after that date and after acquiring 52 weeks of service credits may participate in the Plan to the extent of benefits provided by it for service on the after that date (hereinafter referred to as "future ser­vice") by completing an 'Application for Participation' card in the form prescribed by the rules of the Pension Board as in effect from time to time and at his option making contributions thereunder in the manner and to the extent specified in Section 11.

An eligible employee has the choice of participating in the Plan, either to the extent of the Basic Pension Benefits described in Section IV for which benefits no employee contribution is required or to the extent of such Basic Benefits plus the Additional Pension Benefits described in Section IV towards the cost of which benefits the employee is required to contribute."

Section II is entitled "Contributions" and paragraphs (1), (4) (7) & (8) provide:

"(1) Except as hereinafter provided, each eligible employee who elects through enrollment to participate in the benefits provided by the Plan for service on or after March 12, 1974, shall make the following contributions with respect to each payment of compensation to him:

(a) No contributions are required for the Basic Pension Benefits;

(b) His contributions for the Additional Pension Benefits, provided he elects to enroll for such Benefits in addition to the Basic Pension Benefits, shall be at the rate of 1% of his com­pensation;

(c) An employee enrolled for Additional Pension Benefits may increase such Benefits by contributing, in addition to the above, at the rate of 1%, 2%, 3%, 4%, or 5% of that portion of his compensation which is in excess of the Year's Maximum Pensionable Earnings in effect from time to time under the Canada Pension Plan and the Quebec Pension Plan ($10,400 in 1978).

(4) A participating employee may discontinue further contributions at any time but no amounts contributed may be withdrawn so long as the employee remains in the service of the Company.

(7) The Company shall contribute each year (a) the actuarially deter­mined cost of future service benefits under the Plan for such year, taking into account employee contributions, prior Company contributions, and actuarial experience as the Company deems appropriate; (b) such amount applicable to the cost of unfunded past service benefits under the Plan as the Board of Directors may determine; and (c) such amount applicable to the cost of any amendments to the Plan in respect of service prior to their effective dates as the Board of Directors may determine.

(8) Contributions shall be made and pension funds invested or loaned in such a manner as to comply with any applicable laws, rules or regulations that may have been or shall be adopted or promulgated by a governmental authority having jurisdiction over the Fund or Plan."

Section IV is entitled "Amount of Pension at Normal Retirement Date" and contains an extensive description of benefits provided under both the basic and contributory provisions of the plan. The basic monthly pension is expressed in terms of a yearly credit for service multiplied by a fixed dollar amount depending on an employees final five year average earnings. The additional pension benefits arising out of the contributory portion of the plan is expressed, with various exceptions, as 40% of the total contributions made to the plan. There are many other features of the thirty-six page plan including provisions dealing with supplemental payments, disability, survivorship, payments on termination of employment, vesting, etc. But, the only other provisions we wish to reproduce are Sections XVII (Manage­ment of Pension Funds and Liability for Benefits); XVII (Amendment or Suspension); and XXI (General Conditions), paragraph (4). They provide:

"SECTION XVII

MANAGEMENT OF PENSION FUNDS

AND LIABILITY FOR BENEFITS

(1) To implement the Plan the Company has heretofore created the Canadian General Electric Pension Trust. Said Trust is for the purposes of:

(a) Holding and investing all contributions to the cost of the Plan made by the Company and by the employees on or after July 1, 1953, and all contributions made by the Company before that date and

(b) Making, or providing for, payment of all pension and other benefits provided by the Plan. Such payment shall be made solely from the funds of the Pension Trust and the Company shall have no obligation to make or continue from its own funds any payment of the pension and other benefits provided by the Plan.

(2) Employee contributions shall be paid to the Pension Trust currently and Company contributions shall be paid to such Trust in accordance with the provisions of Section II.

SECTION XVIII

AMENDMENT OR SUSPENSION

(1) The Board of Directors may amend and Plan at any time and from time to time and the power of the Board of Directors to make such amendments shall be without limitation except as stated in paragraph (2) of this Section.

(2) Subject to the sufficiency of the funds in the Trust, no amend­ment of the Plan, except an amendment of the termination provisions set forth in Section XIX, shall adversely affect to a material degree:

(a) The pension of any employee who retired under the Plan prior to the date such amendment becomes effective,

(b) The pension, computed to the date of amendment, of any employee whose pension right vested prior to the date of such amendment, or

(c) Any benefits provided by the Plan in respect of service on or after July 1, 1953, which are based on employee contributions made prior to the date of such amendment.

(3) The Board of Directors may suspend or reduce, for any period or periods, the payment of Company contributions to the Trust on account of future service benefits provided employee contributions are cor­respondingly suspended or reduced for a concurrent period or periods. However, no such suspension or reduction of contributions shall affect the rights of participating employees to benefits based upon service rendered or contributions made prior to the date such suspension or reduction becomes effective.

(4) If any applicable legislation should be enacted which provides or requires benefits similar to those described in this Plan, appropriate modification will be made in the provisions of the Plan.

SECTION XXI

GENERAL CONDITIONS

(4) No participating employee and no other person shall have any legal or equitable rights or interest in the Plan or in the funds of the Plan that are not expressly granted in the Plan. Participation in the Plan does not give a participant any right to be retained in the service of his employer. The right and power of the Company to dismiss or discharge any employee is expressly reserved."

8. The parties are agreed that the new collective agreement between the parties effectively terminates the voluntary contributory part of the pension for the future and inserting in its place a substantially enhanced basic non-contributory pension plan which provides employee benefits on the basis of years of service and average earnings over a specified period. The respondent has guaranteed to the trade union (and affected employees) that no employee receives less under the new plan than the total benefits that had accrued under the old plan. Thus, no employee has actually lost any accrued benefit and, indeed, the vast majority of all employees (including the complainants) will receive improved benefits. All employees who had contributed to the plan will have their contributions remain in the plan, with interest accruing, and on their retirement this money will be used for a money purchase pension. The Board was advised that all contributors will get greater benefits than non-contributors but this advantage is not the same for all contributors because they contributed in different amounts and at different times.

9. At the outset of bargaining the respondent had made a proposal on pensions to the trade union involving two options. Option one was the maintenance of the existing plan with improvements to its two aspects. It proposed an increase to the wage related basic non-contributory scale from $6.20 to $9.00 per month per year of service to $7.80 to $10.60 per month per year of service. Pension benefits from contributions made from 1974 to the end of 1979 were to be increased from 40% of contributions to 50%. Changes with respect to "vesting" rights were also proposed. Option two was the introduction of the new single non-contribu­tory plan involving a wage related benefit scale based on a final three year earnings average. After negotiations with the trade union which resulted in some modifications to the detail of this latter option the union and company agreed to option two. A document prepared by the respondent company and circulated to employees after the signing of their memorandum of agreement, but before the employee ratification vote, described the new pension arrangement in the following terms:

"PENSION PLAN

Effective January 1st 1980, the company will implement a new Basic non-contributory pension formula. The new formula will provide an earnings-related, monthly flat-rate benefit for all years of past and future credited service. This new plan will replace the present Basic non-contributory plan. The benefit levels of the plans are set out below.

Present Plan New Plan

Five-year average Monthly benefit *Three..year average Monthly Benefit

Annual earnings X years Hourly earnings X years

Less than $8,000 $6.20 Less than $6.00 $ 9.60

$ 8,001 to 8,500 6.60 $6.01 to $6.50 per Hr. 10.40

8,501 to 9,000 7.00 6.51 to 7.00 " 11.20

9,001 to 9,500 7.40 7.01 to 7.50 " 12.00 9,501 to 10,000 7.80 7.51 to 8.00 " 12.80 10,001 to 10,500 8.20 8.01 to 8.50 " 13.60 10,501 to 11,000 8.60 8.51 to 9.00 " 14.40 11,001 or more 9.00 9.01 to 9.50 " 15.20 9.51 or more " 16.00

• Under the new plan there is a choice of 3-year average or 5-year average hourly earnings, whichever produces the highest monthly benefit. Service for first year of employment will also be credited.

In conjunction with the implementation of the new plan, contributions to the present Additional Plan will cease for future service. The sum of individuals' contributions plus credited interest will remain in the Pension fund where it will continue to accumulate interest (currently at 7 per cent) until that individual's retirement date. At that time, the total accumu­lated will be used to provide additional pension income in the form of an annuity. Payroll deductions presently being made for contributions can, in future, be placed in the CGE Supplementary Pension Plan (savings and investment options) to buy additional annuity income, or a worker can contribute to group or personal Registered Retirement Savings Plans. Under the new plan each worker is guaranteed a pension in excess of what he would have under the present plan up to December 1979.

Supplemental payments ($6.00 per month per year of service presently) will be increased to $7.00 in 1980, $8.00 and $9.00 per month per year in 1982.

Vested pension right will be after 10 years of credited service (presently 15 years or 10 years at age 40).

Below are examples of pensions under the present and proposed new plans:

Lowest paid worker in UE Bargaining unit:

Present Plan non-contributory New Plan non-contributory

1980 $8.60 per month x years $ 9.60 per month x years 1981 9.00 per month x years 10.40 per month x years 1982 9.00 per month x years 12.00 per month x years

Worker at Tool & Die Rate — Maximum contributions to Additional Plan ($5,848.) 30 years service.

Present Plan New Plan

Non-contrib. Basic 30 x $9.00 $270/mo. 30 x $13.60 $408 $408/mo. Additional Pension 272/mo. Annuity (contr. + int) 187/mo. 1980 Total 542/mo. 595/mo.

In 1981 at wage increases in proposed agreement, new plan would produce:

30 x 15.20 456/mo. Annuity est. 200/mo. Total 656/mo.

In 1982 the new plan would produce: 30 x 16.00 480/mo. Annuity est. 214/mo. Total 694/mo.

It will be seen that as earnings increase, the amount of the flat monthly benefit also rises in relation to the scale. Longer service also increases the monthly pension amount."

10. For the respondent company it is submitted that the complaint must be dismissed because the complainants lack standing, in law and in policy terms, to bring it. It is submitted that the employer owes a duty "to bargain in good faith and make all reasonable efforts to enter into a collective agreement" to the trade union holding exclusive bargaining rights to represent the employer's employees. Counsel submits that in the facts at hand the respondent company honoured this obligation as evidenced by the consumation of a collective agreement but, in any event, only the trade union representing the complainants for the purposes of collective bargaining could bring the instant complaint and it has not seen fit to do so. Counsel further submits that no qualification to this principle can be made for the complainant's claim of individual pension rights because the pension plan, as a matter of law, must constitute part of the collective bargaining agreement between the company and trade union and is subject, therefore, to the trade union's exclusive authority. On this branch of his argument, counsel relied upon numerous cases including Syndicat Catholique de Employds de Magasins de Quebec Inc. v. La Compagnie Paquet Ltee., 1959 CanLII 51 (SCC), [1959] S.C.R. 206; McGavin Toastmaster Ltd. v. Ainscough, 1975 CanLII 9 (SCC), [1976] 1 S.C.R. 718; and Winnipeg Police Association et al. v. City of Winnipeg et al., 1979 CanLII 2571 (MB QB), [1979] 5 W.W.R. 193. It was submitted that while this Board might be able to review the trade union's representation of the complainants in light of their claims, this could only be done if the complainants had alleged a violation of section 60 of The Labour Relations Act and joined their trade union as a party respondent. This they specifically have declined to do.

Alternatively, counsel for the respondent company submitted that, if their claimed pension rights could exist "outside" the collective agreement, any such agreement would be outside the collective bargaining process and could not be involved in a breach of The Labour Relations Act. In broad policy terms counsel submitted that a company must measure its own bargaining position against the trade union's understanding of the legal duties owed to it. If that trade union is satisfied with the company's bargaining performance, there ought to be no opportunity for anyone else to challenge the company's bona fides and bargaining efforts. Counsel asserted that the trade union bargaining with a company is in the best position to know whether that company is living up to its legal responsibilities under the legislation. Counsel therefore asked the Board to exercise its discretion under section 79 and refuse to inquire into the complaint.

11. For the complainants it was argued that, as a result of the contested pension amend­ments, the respondent company is going to use contributions made by employees over the last twenty-seven years to fund the new plan. He submitted that these contributions were made with the expectation of receiving benefits as a consequence. The amendments mean, counsel submits, there was no reason for all the employees who made voluntary contributions over the years to have made those contributions. It was submitted that, in law, the company cannot change the plan and use monies already contributed into the plan in any way other than was originally agreed to unless it does so with the unanimous concurrence of all affected contributing employees. In support of this proposition the Board was referred to Inter­national Brotherhood of Boilermakers et al. v. Yarrows Ltd. (1963), 1963 CanLII 553 (BC SC), 39 D.L.R. (2d) 470 (B.C. S.C.). Accordingly, counsel submitted that the amendment to the pension plan was not within the legal capacity of the trade union and company without involving all the affected employees by obtaining their unanimous approval. He argued that their failure to do so amounts, in the circumstances, to a breach of section 14 and in this unique situation the complainants should be accorded an independent legal interest and standing under section 14. Finally, it was submitted that the complainants were prepared to establish that the company had made a material misrepresentation to the trade union in negotiating the pension modifications. While this allegation was brought to the trade union's attention before the collective agreement was finalized and it refused both to alter its course of conduct and bring a complaint to the Board, counsel submits that his clients ought to be allowed to pursue their allegation. He submitted that if they are not allowed to do so, the company will have been allowed to bargain in bad faith, contrary to an express policy of the statute.

12. We have reviewed the evidence as agreed to and the helpful submissions of counsel and have concluded that this complaint must be dismissed. Regardless of what rights the employees may or may not have according to the law of trusts, this Board is satisfied that they have no proper claim under section 14 of The Labour Relations Act on the allegations made and that their claims ought not to be inquired into under section 79.

13. Section 14 reads:

"The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collec­tive agreement."

Sections 13, 15, 35, 37, and 42, together with the scheme of the Act reflected in many other provisions, make it clear that the parties to a collective agreement are the employer and the trade union, although the employees in the defined bargaining unit are undoubtedly bound by the agreement. See for example Re Governing Council of the University of Toronto and Service Employees Union, Local 204 (1974), 1974 CanLII 2377 (ON LA), 5 L.A.C. (2d) 304 (Weatherill). Thus, on the clear words of the statute, we are of the view that the obligations and duties contained in section 14 are matters of legal interest only to these parties.

14. At the basis of modern collective bargaining legislation in North America is the recognition by employers of properly selected trade unions as the exclusive bargaining agents of employees. Employers are obligated to deal with such trade unions and with them alone. These is no opportunity for the employer to enter into direct dealings with employees so represented without the trade union's consent. The relationship of individual rights to collective bargaining has been reviewed in a number of important judicial opinions of high authority and the following lengthy excerpt taken from the decision of the Manitoba Queen's Bench in the Winnipeg Police Association case, supra, captures the sense of and reviews a number of these cases. In that matter the Winnipeg Police Association took exception to an agreement between a constable and the Deputy Chief of Police that the constable would attend law school while working part-time as a police officer. In setting aside the agreement, the Hewak J. wrote:

"As a result, if the document is to be considered an 'agreement' or 'con­tract of employment, then of course it is necessary to consider the law governing this genre of contract.

Generally speaking, the law recognizes that where there exists a collec­tive bargaining agreement it is not open to individual members of the bargaining unit or to the employer to enter into separate employment agreements.

Laskin C.J.C. (then Prof. Laskin, Q.C.), in a presentation delivered to the annual conference of the Personnel Association of Greater Winnipeg on 22nd March 1963, entitled 'Collective Bargaining and Individual Rights' (1963), 6 Can. Bar Journal 278 at 280-8 1, had this to say on the subject:

'The Union is perforce a principal party, and correlatively as its bar­gaining authority is exclusive so is the bargaining right of individual employees precluded. Neither prior individual agreements nor subse­quently struck private bargains can stand against a union-employer collective agreement, save as such agreement may permit, and this it rarely, if ever, does. Indeed, collective bargaining legislation in the fairly common pattern in which it exists in Canada makes the collective agree­ment binding on the employee as well as upon the union and the em­ployer. Nor is there any possibility of arguing that an individual may freely bargain on such matters as are not covered by a collective agree­ment, although they might be susceptible to inclusion if only union and employer could agree. I doubt whether in this country we would follow the American principle that an individual may treat with his employer on matters not embraced in the collective agreement, at least until the union asserts its exclusive bargaining rights. With us, a collective agreement once struck settles the bargain between the parties for its term, and there is no continuing obligation to bargain on matters which were either dropped or not brought forward. But this hardly supports a right to individual bargaining, although it may leave the employer free to confer benefits not provided for in the collective agreement.

Even if it be the case that the individual has some freedom to negotiate outside the limits of the collective agreement, it will not be very signifi­cant. The individual's interests are best protected at the bargaining table through his chosen representative spokesman, and it is there that collec­tive strength needs to be marshalled. In striking a bargain for all indivi­duals who are or may come into the bargaining unit, the union and employer establish a set of employment conditions that cannot be tailored to individual preferences. There is little, if any room, for private deals.'

This same question was reviewed by the Supreme Court of Canada in the case of Svndicat Catholique des Employ6s de Magasins de Quebec Inc. v. Cie. Paquet Ltde., 1959 CanLII 51 (SCC), [1959] S.C.R. 206, 18 D.L.R. (2d) 346. There, Judson J., writing for the majority of the court at pp. 353-54, expressed the concept in the following terms:

'The union is, by virtue of its incorporation under the Professional Syndicates' Act [R.S.Q. 1941, c. 162] and its certification under The Labour Relations Act[R.S.Q. 1941, c. 162A], the representative of all the employees in the unit for the purpose of negotiating the labour agree­ment. There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations. When this collective agreement was made, it then became the duty of the employer to modify his contracts of employment in accordance with its terms so far as the inclusion of those terms is authorized by the governing statutes. The terms of employment are defined for all employees, and whether or not they are members of the union, they are identical for all.'

This view of the law was also articulated by the Supreme Court of Canada in the case of Mc Gavin Toastmaster Ltd. v. Ainscough, 1975 CanLII 9 (SCC), [1976] 1 S.C.R. 718, [1975] 5 W.W.R. 444,75 CLLC ¶ 14,277,54 D.L.R. (3d) 1,4 N.R. 618.

Laskin C.J.C., speaking for the majority of the court in that case, made the following statement at pp. 448-49:

'The reality is, and has been for many years now throughout Canada, that individual relationships as between employer and employee have meaning only at the hiring stage and even then there are qualifications which arise by reasons of union security clauses in collective agreements. The common law as it applies to individual employment contracts is no longer relevant to employer-employee relations governed by a collective agreement which, as the one involved here, deals with discharge, termina­tion of employment, severance pay and a host of other matters that have been negotiated between union and company as the principal parties thereto. To quote again from the reasons of iudson J. in the Paquet case, supra, at p. 214:

'If the relation between employee and union were that of mandator and mandatory, the result would be that a collective agreement would be the equivalent of a bundle of individual contracts between employer and employee negotiated by the union as agent for the employees. This seems to me to be a complete misapprehension of the nature of the juridical relation involved in the collective agreement. The union contracts not as agent or mandatory but as an independent contracting party and the contract it makes with the employer binds the employer to regulate his master and servant relations according to the terms."

If we refer to and consider the document signed by the Chief of Police and Irvine to be an 'agreement' or contract of employment, the law settles that Irvine, a member of good standing of the Winnipeg Police Associa­tion, a party to a valid and subsisting collective bargaining agreement, was not in a position to privately and on her own behalf negotiate and enter in to a separate contract or agreement covering terms and con­ditions of employment. Aside from offending the provisions of the collec­tive bargaining agreement and creating grounds on which a grievance could be filed by other members of the bargaining unit, it brings into question the capacity of Irvine to enter into such an agreement. If as a result of the existence of a collective bargaining agreement Irvine did not have the capacity to enter into such a private employment agreement, the contract is invalid. On the other hand, does it follow that, although she ought not to have negotiated or signed such a contract, since she did, her action amounts only to a breach of the collective bargaining agreement, creating grounds for the institution of grievance procedures and/ or a claim for damages, but does not invalidate the 'agreement'?

The authorities almost without exception favour the view that such separate agreements are not permitted, and that members of a bargaining unit do not possess capacity to contract on their own. Consequently, if the document is considered to be such an 'agreement' or contract of employment it is invalid."

15. There can be little doubt that this legal conclusion reposes considerable authority in a certified or voluntarily recognized trade union with respect to bargaining unit employees. Indeed, it is the exercise of this authority by the complainants' trade union in concert with their employer that they wish the Board to review. However, section 14 is not designed to play this role and we share the concern of the respondent's counsel over the difficulty employers would face if we were to allow the complaint as cast to be pursued. On the other hand, other provisions of the legislation are specifically designed to deal with allegations of unfairness or inadequate representation although we are not suggesting that the complainants' chances of success were good had they decided to pursue these other avenues before the Board.

16. For all of these reasons, the complaint is dismissed.