[1980] OLRB Rep. January 93
1435-79-U Graphic Arts International Union, Local 12-L and Local 28-B, Complainants, v. Rolph-Clark-Stone Packaging, Ronalds-Federated Limited, and F.P. Publications Limited, Respondents.
BEFORE: E. Norris Davis, Vice-Chairman, and Board Members R. D. Joyce and H. Simon
APPEARANCES: H. Goldblatt and others for the applicants; John P. Sanderson, Q. C. and others for the respondents.
DECISION OF E. NORRIS DAVIS, VICE-CHAIRMAN, AND BOARD MEMBER R. D. JOYCE; January 8, 1980.
The complainants are parties to collective agreements with the respondent, Rolph-Clark-Stone Packaging in respect to which negotiations for contract renewal have been in progress since December 1978 and in respect to such negotiations the complainants allege contraventions of section 14 of the Act by the respondent.
The parties are agreed that the statements set out in the particulars filed by the complainants shall be treated as evidence before the Board, together with certain other agreed facts. Additionally some oral testimony was received.
The expired collective agreements in respect to which bargaining is in process were in effect from January 1, 1978 to December 31, 1978 and were entered into by the Council of Printing Industries of Canada (hereafter referred to as CPI) on behalf of Rolph-Clark-Stone Packaging (hereafter referred to as RCS) along with other employers, and covered bargaining units represented by Local 12-L and 28-B in the RCS Bramalea plant and represented by Local 555 in the RCS Montreal plant. The contraventions alleged by the complaints relate to negotiations for renewal of the collective agreements covering employees at RCS Bramalea. Central to the case before us is the structure in which negotiations were conducted. While CPI had bargained on behalf of RCS in respect to the predecessor agreements, RCS did not participate in the renewal negotiations of CPI, but instead served an individual notice to bargain on Local 12-L in respect to all expiring contracts in Quebec and Ontario, and which it stated would be "jointly negotiated separately" by the following companies:
Lawson Packaging
Reid Dominion Packaging Ltd.
Rolph-Clark-Stone Ltd.
Somerville Belkin Industries Ltd.
The other companies, none of whom had been part of the CPI negotiated agreement of 1978-79, served similar notices, but it is noted that Reid had no Quebec operations. It should also be noted that the lithographers bargaining units were represented at each company by Local 12-L in Ontario and by Local 555 in Quebec. In respect to the units covered by Local 28-B at RCS, the company, following its withdrawal from the CPI negotiations, served notice that it would bargain in respect to those units on a single company basis and they formed no part of the joint negotiation approach. It should also be noted that in the renewal negotiations of 1977 and 1978 the pattern was established of securing a settlement with Local 12-IL, then followed by a settlement with Local 28-B in respect to the craft unit, then followed by a settlement with Local 28-B in respect to the other unit.
- Following the serving of notices to bargain, events as they relate to the Local 12-L negotiations are best described as set out in paragraphs 7, 8, 9 and 10 of the particulars filed with the compliant and which read:
"7. Notice to bargain was given by R.C.S. on November 17, 1978. All four companies gave virtually identical notices to bargain and named as co-chairmen of their negotiating team Mr. T. White and Mr. F. Pamenter for Ontario and Mr. N. Bellemare and Mr. J. Matthe for Quebec. White and Pamenter were representatives of Somerville and Lawson respectively, while Bellemare and Matthe were representatives of R.C.S. and Lawson. These named individuals functioned at various times as spokesmen but the employer bargaining team was two-tiered.
The bottom tier was composed of various industrial relations officials, managers and accountants, while the senior bargaining tier was composed of the following:
T. Bastien (Reid Dominion)
D. Billing (R.C.S.)
J. Bailey (Lawson)
B. Krause (Somerville)
After three meetings through December, 1978 and January, 1979 wherein both the employers and the unions were unable to agree on a super-structure for joint negotiations, the unions applied for conciliation in February, 1979. The employers requested that a single conciliation officer be appointed for all companies and that conciliation meetings be held jointly.
In February, 1979 and March, 1979, the employers and the unions agreed to a formal structure and format for joint bargaining, the terms of which were as follows:
(a) one set of negotiations for Ontario and Quebec;
(b) a master portion of a collective agreement taken from the individual expired collective agreements covering all employers and all bargaining units was drawn up and agreed to;
(c) an addendum to the master portion of the document for each employer was drawn up and agreed to;
(d) the master and addendum referred to above were to form the basis for all future bargaining;
(e) all proposals submitted on behalf of the employers were binding on all the employers;
(f) ratification by the unions of the settlement ultimately negotiated would be as a group for all plants in Ontario and separately for each plant in Quebec in accordance with the requirements of Quebec law.
- The above terms were agreed to by all parties and bargaining proceeded in accordance with these terms. Two addenda were agreed to for Lawson — one in respect of its plant in Quebec and another in respect of its plant in Ontario. R.C.S. and Somerville-Belkin which also had plants in both provinces had only a single addendum and the terms and conditions for all employees in Quebec and Ontario were identical for those two employers. Throughout the negotiations which followed, Lawson continually differentiated in its proposals and counter-proposals as between its Quebec and Ontario plants but R.C.S. and Somerville did not differentiate between provinces or plants at any time."
It should also be noted that on the Union Negotiating Committee were two International Representatives, Mr. Rastin and Mr. Mailloux; also, Mr. Paquette who is International Vice President was "in and out" of negotiations in the early stages and became fully involved in them in late March and early April (following settlement of the CPI negotiations which had been conducted concurrently).
It should also be noted that at the bargaining sessions of March 3 and 4, 1979 the parties agreed on a master document consisting of all the clauses common to all plants and with addenda for each company or plant which reflected terms peculiar to that company or plant. Further, insofar as RCS, there were no differentiations to be made on contract clauses as between its Montreal and Bramalea plants, while in respect to Lawson's Ontario and Quebec plants the opposite was true. Also, there was a history of identical terms and conditions being applied to RCS Montreal and RCS Bramalea.
Conciliation was applied for in February 1979 and, at the request of the employers, a single officer was appointed in Ontario and a single officer in Quebec for all companies, and meetings alternated between the two provinces.
By May 2, 1979 negotiations were reaching the critical stage and the employers who had been insisting on changes in manning provisions dropped that demand "in order to avoid a strike" and it appears that the union at that time undertook to hold a meeting of its local presidents in the fall of the year to examine the general question of manning. The respondent disputes that this was a "settlement" of the issue but in any event it was then clearly removed from the discussions concerning contract renewal. However, there were other items still separating the parties which they were unable to resolve and a legal strike was commenced on May 4th. The parties agree that the key issue in the strike was the union s refusal to accede to the employer demand that shift premiums which were calculated as a percentage of basic rate should be frozen at the existing "dollar & cents" level and henceforth be expressed in flat dollar and cents terms.
When the strike by Local 12-L occurred on May 4th, members of Local 28-B at RCS refused to cross the picket line, and requested that RCS meet and bargain with Local 28-B in respect to its contract renewal demands. The company refused to meet and characterized the request as "ludicrous". There were some meetings between the company and Local 28-B in August and a proposal made by the company which it insisted be placed before the membership. RCS wrote a letter to all Local 28-B members on August 10th outlining the proposal it had made. On August 15th the Local 28-B membership rejected the proposal. On August 18th the company placed advertisements for help in the daily newspapers. No further meetings were held between Local 28-B and RCS until early November, subsequent to the filing of this complaint.
The complainants filed with the Board six letters to all employees between May 22nd and September 14th and which were above the signature of David Billing, President and Chief Executive Officer, insofar as Ontario employees were concerned and which were translated into French and went over the signature of a Montreal executive to Quebec employees. The Jetters in Ontario and Quebec were similar if not identical. Mr. Billing has ultimate responsibility for both the Montreal and Bramalea plants. The letters outlined the company's financial and competitive market position together with comparison of company wage rates with those of other employers and factual reports of any negotiating meetings.
Copies of the letters were sent to the union by Billing. In a May 29th letter the "main issue" was identified as being a capping of the shift premium, and a June 22nd letter refers to both shift premiums and manning as examples of change required in the industry while noting that people generally resist change. A September 14th letter reports on meetings held at the Labour Department September 12th and 13th at which the union rejected employer proposals for arbitration and further stated the employers would table a final proposal the following week. This last letter did not go to Quebec employees as according to Billing that practice had been discontinued some time in July.
According to the complainants a meeting was held October 11th at which were present on behalf of the union, Mr. Brown, the International President and Mr. Paquette, International Vice-President and two co-chairmen for Ontario on the management side, White and Pamenter. It must be noted that White and Pamenter "were representatives of Somerville and Lawson" and that the Quebec Co-Chairmen, Bellemare and Matthe (who were representatives of R.C.S. and Lawson) were not present. According to Billing, it was his understanding that the Chairman of Lawson had decided his company losses were such that an end to the strike had to be brought about, and that Lawson had made a direct approach to Brown in that regard, which led to the October 11th meeting. Billing also states that the position of the companies other than Lawson was that no arrangements could be made at such a meeting on their behalf. Apparently the meeting of October 11th established parameters for a settlement and it was left to the Graphic Arts International Union to lay out the draft terms of settlement to be presented to a meeting on October 15th. According to the complainants the understanding at the October 11th meeting was that whoever showed up at the October 15th meeting would be a party to the agreement. Paquette was advised on October 12th that Reid and RCS would also be at the table October 15th but not necessarily to sign the agreement and Paquette agreed to that procedure. Billing states that he and the Chief Executive Officers of the other two companies had heard the results of the October 11th meeting on October 12th and that initially the three companies other than Lawson were opposed. Subsequently and before October 15th Somerville Belkin decided to accept; Billing states that Reid's position at that time was that they would announce their decision on October 15th. Billing states that it was put to the October 12th meeting that "Paquette said he would settle with anyone who turned up October 15th".
On October 15th all employers were present when the union tabled proposals for settlement including a settlement on the shift premiums. Lawson, Somerville and Reid agreed on the settlement proposal with union modifications and remained at the meeting to work out return-to-work provisions. RCS then announced it would settle separately for its Montreal plant on the same basis as the other employers but that it would not accept the settlement for its Bramalea plant, and the only sticking point in the case of the Toronto plant was the shift premium settlement. Paquette, on behalf of the union, determined that because of Quebec law he was bound to put the offer to the RCS Montreal membership. Agreement on return-to-work provisions was arrived at in respect to Reid's plant, Lawson's two plants, Somerville's two plants, and RCS Montreal plant and the strike brought to an end in those locations. Local 12-L and Local 28-B at RCS Bramalea remain on strike.
On October 29, 1979 the present complaint was filed with the Board, and on November 23rd additional particulars were filed which are as follows:
"1. Since the filing of the complaint in this matter with the Ontario Labour Relations Board, the parties have met on three occasions, namely November 6, 8 and 19, 1979.
The meetings took place between both Local 28-B, Local 12-L and the company since the company insisted on meeting with representatives of both bargaining units together.
On November 6, 1979 the company indicated that it was prepared to modify the last company proposal to Local 12-L of September 20, 1979 in order to alleviate the problem and they were prepared to agree to the night shift premium which had been agreed to with the other companies on October 15, 1979 but that they needed reduced manning.
The issue of manning had been raised previously at negotiations prior to the commencement of the strike but on May 2, 1979 all the employers, including RCS, had dropped their proposals on manning and had agreed to the union's proposals in that regard.
On November 6, 1979 the union tabled new proposals in regard to Local 28-B, including a two-year agreement, and indicated that it was prepared to sign an agreement for Local 12-L on the same terms as the RCS Montreal plant and the same terms as Somerville-Belkin, Reid Dominion and Lawson. Since November 6, 979, the company has not responded to the Local 28-B proposals.
On November 8, 1979 the company suggested that the parties should disregard all previous negotiations and start afresh and, when the union inquired if, in these circumstances, the company's demand for reduced night shift premium and manning changes would still be on the table, the company indicated that they would be.
On November 8, 1979 the company turned down a union proposal that the term of the agreement be lengthened with an appropriate increase in the monetary package.
At the November 8, 1979 meeting, Mr. Billings indicated that manning was the number one priority of the company and Mr. Webb indicated that the company could get by with the same settlement as the other companies with regard to the night shift premium but they needed relief in manning.
On November 19, 1979 Mr. Billings indicated that the company could not wait for another time in order to get the manning relief that it needed and it could not give in to the union on this issue at this time. In order to satisfy its customers, the company could reform south of the border at New York rates and the U.S. experience was much more favourable than the Canadian but the company would rather save Ontario jobs.
At the November 8, 1979 meeting, Mr. Billings indicated that he had kept in touch in this matter with Frank Rolph of Ronalds Federated and George Currie of FP Publications Limited and that he had not been acting alone."
Mr. Billing testified that RCS Toronto continued to advertise for help from August 18th and as of October 20, 1979 the advertisements no longer earned a statement (which they previously had) that "this opportunity results from a labour dispute". Billing explains that this statement had been initially inserted so that interested applicants could be aware of the situation and in subsequent formal letters they were advised that the jobs must be considered temporary and that they could not replace any strikers wishing to return; and that it was his understanding that the statutory right of striking employees to return did not exist after six months and consequently the company felt as of October 20th they were in a position where they could offer regular jobs. In cross-examination he denied that the change in advertising was in any way connected with dates of meetings and that it related solely to the six-month provision. Billing testified that after three and a half months strike "we had to take a decision as to whether to close or to re-open without a bargaining unit, we decided not to close down but to work. We have been manning our equipment differently. The plant is still precarious and we are not prepared to go back to excessive manning to reach a settlement". It is noted that at the time of the hearing there were some 55 persons at work in the Toronto RCS Local 28-B units compared with some 65 pre-strike, and some 9-10 persons at work in the Local 12-L unit compared with some 35 pre-strike.
Billing testified that in respect to the October 15th meeting that "we turned up to enter into a settlement on behalf of our Montreal plant and to advise the Union that the Negotiating Committee no longer had a mandate for the Toronto plant". In cross-examination Billing was asked why he had not advised the Union before October 15th and replied that he learned of the October 11th meeting on Friday, October 12th and the October 15th meeting was the following Monday.
Billing explained that the reasons for accepting the settlement for the Montreal plant is based on very different economic circumstances applicable to the two plants and that the "Montreal plant has a long history of high quality, high profit work and is less susceptible to the disadvantages of the contract than is Toronto". It is noted that the Bramalea plant produces all the labelling and printing work sold throughout Canada, including through the Montreal office, and in at least one instance Bramalea produced a folding carton for Montreal; Montreal produces only folding boxes.
Billing stated that he considered the acceptance of the union's proposals by the other employers for shift premium as a "capitulation" and conceded that it did not represent "a lot of money", but that while the money did not make all that much difference, that it was indicative of failure by the union to recognize the employers' economic problems, and that if the union was not prepared "to concede on a relatively minor issue, nothing could happen on manning".
The applicant's argument is that the respondent's actions in removing itself at the last minute from the agreed bargaining structure with the other employers was a breach of section 14, and that the respondent's accepting the union proposal for settlement on behalf of its Montreal plant and not its Bramalea plant was similarly a breach of section 14. The applicant relies on the Pine Ridge District Health Unit case [1977] OLRB Rep. Feb. 65, in which the Board notes at paragraph 24:
"No two bargaining relationships are the same and each case must depend on the particular relations between the parties at a given point in time. A web of understandings, that are both tacit and expressed, of varying degrees of definitiveness, will operate between them and will colour the quality of their actions."
It is the applicant's contention that the agreed upon bargaining structure of March 3rd/4th, the long standing identicalness of terms and conditions at both RCS Montreal and RCS Bramalea, the conduct of current negotiations up to October 15th without differentiation by either party in respect to the two plants all constitute part of the "web of understanding" which when breached on October 15th constituted bad faith bargaining.
The applicant further relies on The Grey-Owen Sound Health Unit case [1979] OLRB Rep. July 65 as authority for the proposition that parties in a bargaining relationship cannot opt out of an agreement made respecting the structure within which bargaining will be conducted without being in contravention of section 14 of the Act. A careful reading of that case indicates that what was there in issue was not a question of "bargaining structures" with which we are here concerned but rather, a question relating to the agreement to rely on interest arbitration under section 34c of the Act rather than the more usual economic sanctions as the vehicle for final resolution of their contract dispute. It is obvious that the Board there was addressing itself to the unique facts bringing the matter under section 34c of the Act which itself requires an irrevocable agreement in writing before the section is operative. Whatever impost is to be given to agreed upon bargaining structures in the instant case must be independent of the rationale in The Grey-Owen Sound Health Unit case.
The a greed upon structure of bargaining of March 3rd/4th was essentially that certain employers would bargain jointly with certain unions with the objective of concluding separate renewal collective agreements. It is clear to us that probably on October 11th and certainly on October 12th, the unions had decided that the joint bargaining structure was no longer viable and they were prepared to conclude collective agreements with any individual employers who would agree. Similarly, the events of October 11th and 12th, and preceding, clearly indicate that Lawson and perhaps other employers were prepared to abandon the joint structure and to secure a collective agreement on an individual basis. The only conclusion that can be drawn is that, in putting forward the proposal of settlement on October 15th, the union was not misled into thinking that the employer response would be a unified one. The union had crossed that bridge on October 11th when they decided that anyone coming to the meeting would be a party to the agreement and, again on October 12th, when they were informed that Reid and RCS would attend the meeting, but not necessarily to sign, and assented thereto. In any event, as was found by the Board in the Bruce Henderson case [1977] OLRB Rep. Aug. 485, it is not a contravention of section 14 for an employer, who has been represented by an employers' bargaining agency, to withdraw from the negotiations following a tentative settlement by notice given prior to the signing of a collective agreement on his behalf. While the Board in that case was dealing with a bargaining structure falling within the meaning of section 43(2) of the Act, the rationale in our view is equally applicable to a bargaining structure of the type before us here. We accept the language of the Board in that case where it said, at paragraphs 10 and 11:
"10. ... The freedom provided by section 43 must be integrated with the obligation imposed by section 14. Thus an employer that authorizes an employer's organization to bargain on its behalf so as to avoid its obligation to sit down and negotiate a collective agreement with a trade union breaches its duty to bargain in good faith. Such conduct is tantamount to a refusal to recognize the status of the bargaining agent for collective bargaining purposes.
- That is not to say, however, that every employer that gives a late notice to a trade union pursuant to section 43(2) will be found to have contravened section 14"
The timing and total circumstances surrounding a withdrawal from joint negotiations will determine whether in the individual case a section 14 contravention is involved. In the instant case no inference can be drawn that the respondent was using the joint negotiations bargaining structure as a means of avoiding its obligation to bargain with the applicant and to make every reasonable effort to conclude a collective agreement. All the evidence up to early October is to the contrary, and, the respondents' withdrawal from the joint negotiation structure was based on its evaluation that its interest would not be served by compromising on the central strike issue as the other employers were prepared to do. That does not constitute a contravention of Section 14.
The next question is whether the respondent was guilty of bargaining in bad faith by accepting the union's proposal for settlement in respect to its Montreal plant and refusing to accept the same proposal in Bramalea? The applicant states that they had relied on the past history of relationships as well as the total conduct of both parties in these negotiations as establishing that any settlement reached would be in identical terms for both plants, and for the respondent at the last moment and without explanation to negate that structure is an act of bad faith.
There is no evidence before us that there was any discussion on October 15th as to the propriety of the respondent accepting for one plant only, beyond the statement made to us that at this time Mr. Paquette felt he was required by Quebec law to take the matter back for ratification. It seems to us that the union's proposal for settlement, insofar as it related to RCS, was either made conditionally on settlement at both plants or made separately in respect to each plant. If it were the former, we would have expected the matter to have been the subject of discussion at that time, and we consider that, at that time, the union Negotiating Committee could have quite properly rejected the respondents' acceptance and, if the latter, then obviously it cannot now be cause for a complaint. Nor do we consider that a long history of accepting common terms and conditions in separate bargaining units, in itself, precludes a party in the light of changing circumstances and its evaluation of how its own best interests can be served, from now taking a different position. It may well be that in a given case, the existence of a term of employment in one bargaining unit makes it more difficult for the respondent to maintain its position against importing the same term into a similar bargaining unit, but that is a matter to be hammered out in the collective bargaining forum rather than by resort to the Board's processes.
The obligation to meet and bargain in good faith as required by section 14 is often fulfilled, as here, through a joint bargaining structure. Joint bargaining structures involving multiple employers, or multiple unions are dependent on the consent of all parties involved. No legal right exists in one party or the other to insist that the opposite party in order to exercise its rights and obligations to bargain collectively under the Act must do so in concert with other entities. No doubt the cause of labour relations is often served by the adoption of such a structure but such adoption is clearly the result of the voluntary actions of the parties, and terminating such a structure is subject to the restraints outlined in Bruce Henderson, supra. Neither party can assume that the consent on which a joint bargaining structure has been formed irrevocably binds the parties without the most explicit terms. The withdrawal of consent by tie respondent in this case may have been totally unexpected; we do not find it to have been in contravention of section 14.
We come now to the discussions between the parties on November 6th, 8th and 19th and in particular the respondent's position that it could probably accept the proposed settlement on shift premium if it received a concession in respect to manning. The applicant argues that previous employer proposals for manning changes had been settled or abandoned before the May 4th strike and that it is bad faith for the employer to now raise that settled issue.
The Board has, in a number of cases, considered the consequences flowing from a change of position by one of the parties at the bargaining table. In the Pine Ridge Health [1976] OLRB Rep. Feb. 65 the Board in its discussion at paragraph 25 said:
"..... What then is to be made of the respondent's reneging on Article XXIII? Collective bargaining does not take place in a vacuum or in a period where time and events are frozen. Generally, as in this case, it occurs over an extended period of time against a fluid backdrop of events. A party may thus come to reshape its view of its own best interests from one point in time to another and so wish to change its position at the bargaining table. The party opposite cannot be taken to be unaware of the increasing likelihood of that happening with the passing of each successive day and week. The old caution, 'Take it before I change my mind' reflects a widely accepted bargaining precept that has its proper application in collective bargaining and in our view, is applicable in the instant case."
and in the Toronto Jewellers Manufacturing Association case [1979] OLRB Rep. July 719 at paragraph 10 where it was said:
"..... Having regard to the Board's comments in Pine Ridge, supra, about the collective bargaining process, it would be naive in the extreme for parties to collective bargaining to expect that conditions which prevailed before a strike or lockout to still prevail afterward. That is not to say that both parties might not see it to be in their best interests to agree to pick up bargaining where they left off before a strike or lockout; rather it is to say that neither party is entitled to rely on that being the situation. ..."
- In the instant case, the respondent is under the obligation to bargain and make every reasonable effort to conclude a collective agreement despite the continuance of the strike, and in so doing the respondent is not entitled to ignore completely the bargaining which has gone before. We are somewhat concerned by the statement in the applicant's particulars to the effect that:
"On November 8, 1979 the company suggested that the parties should disregard all previous negotiations and start afresh and when the Union inquired if, in these circumstances, the company's demand for reduced night shift premium and manning changes would still be on the table, the company indicated they would be."
This statement in the context of oral evidence given by Billing is interpreted as primarily resurrecting the previous manning issue and not obviating all previous negotiations. Were we to come to a different interpretative conclusion our evaluation of the respondents' conduct would also be different. In our view, following six months of strike and the dissolution of the joint bargaining structure, the employer, in the language of the Wellington-Dufferin Health Unit case, Board file 0786-79-U (as yet unreported) "is entitled to re-appraise and reformulate its earlier position — provided it is acting bonafide and is not injecting items at the 'eleventh hour' as a means of avoiding agreement".
We do not believe in the total circumstances that the respondent is bent on a course of frustrating negotiations and making conclusion of a collective agreement impossible. The fact that the respondent was prepared to forego immediate manning changes in favour of future discussions in order to avoid a strike, and more importantly was prepared to stand by that decision in order to end the strike in Montreal, does not preclude him endeavouring to bargain further to achieve such change at Bramalea. This position reflects the respondents' difference in assessment of economic impact on it of such a settlement, and its viewed bargaining strength as between the two locations. Where economic sanctions are invoked to resolve disputes, neither party is entitled to assume that the cost of such sanctions may not, in some way, influence the bargaining position of both parties in their efforts to arrive at a bargain most closely resembling their original bargaining position. That is hard, but not bad faith, bargaining.
We turn now to the negotiations with Local 28-B which were not a part of the joint negotiations.
The meetings of November 6, 18 and 19, 1979 included representatives of Local 28-B "since the company insisted on meeting with representatives of both bargaining units together". At the November 6th meeting the union tabled new proposals including a two year agreement and "since November 6th 1979 the company has not responded to the Local 28-B proposals".
The evidence establishes that there has been a long standing history of both parties awaiting the establishment of a pattern-settlement between the company and Local 12-L before pursuing negotiations to a conclusion with Local 28-B. At meetings in April under the auspices of a mediator the company did make an offer for settlement which included for the first time a proposal to increase the work week from 35 hours to 40 hours. This offer was rejected by the membership on April27, 1979.
It would also appear that following the strike by Local 28-B on May 9, 1979 that at some stage the parties held discussions with the company making a total proposal for settlement in respect to Local 28-B despite no settlement at that time with Local 12-L. That proposal was carried to the membership, without recommendation, on August 15th and rejected.
The respondent, through Billing, stated that its reason for insisting on both unions being represented at the November meetings was because of the history of pattern bargaining and because throughout the current set of negotiations both Local 12-L and 28-B made any proposal for settlement for one local conditional upon settlement with the other local.
Where there is a history of pattern bargaining it is usual and proper for the parties to take into consideration the status of such development in making their proposals. No doubt there are occasions when the parties will not be in complete agreement as to the weight or relevance of these outside events, and that in itself fortifies the need to engage in rational discussions. For that reason we find the respondent's response to Local 28-B's request of May 4th to meet and negotiate, as a clear refusal to fulfill its section 14 obligations.
As to the events of November, Local 28-B appears to have acquiesced in the company's demand for it to negotiate jointly with Local 12-L and we do not therefore find any contravention arising out of that circumstance. However, Local 28-B's acquiescence to that bargaining structure obviously did not extend to agreement to suspend its negotiations to make a renewal collective agreement. The respondent by its conduct in the November meetings in which it confined itself solely to a discussion of the dispute with Local 12-L and had failed completely, as of the time of our hearing, to respond in any manner to the new proposals of settlement put forward by Local 28-B, justifies the inference that the respondent had no intent on of engaging in rational discussions with a view to concluding a collective agreement with Local 28-B unless and until it concludes negotiations with Local 12-L. The respondent is not entitled to unilaterally make such a pre-condition to fulfilling its section 14 obligations, and its refusal to engage in examination and discussions of Local 28-B's proposals is tantamount to refusing to recognize Local 28-B as bargaining agent.
Despite the recognized difficulties this Board finds that the collective bargaining relationship will best be served by a declaration and a direction that will correct any misconceptions that either party may have had in respect to the underlying need for a consensual base on which to found joint negotiations and/or sequencing of settlements pertaining to individual bargaining units.
The Board orders the respondent to meet with the complainant Local 28-B and endeavour by a process of bargaining consistent with this decision, to bargain in good faith and make every reasonable effort to make a collective agreement.
The Board further directs that the parties request the services of a mediator in order to assist them in achieving a collective agreement.
DECISION OF BOARD MEMBER H. SIMON:
I agree with the majority decision with regard to Local 28-B but I have some serious reservations with the decision with regard to Local 12-L. In my view the company is guilty of bargaining in bad faith with Local 28-B as well as with Local I 2-L.
The company agreed to joint bargaining. They accepted the rules set out to govern the negotiations. For the company to renege on the agreement at the last moment is an act of bad faith not only to its employees and their union but also the other employers who have accepted the term of the negotiated settlement.
There has been a history of 25 years of joint negotiations between the Toronto and Montreal locals of the same union with this company. The agreements have always been identical.
At no time prior to October 15th has there been any indication by the company that they would require different conditions for the plant in Bramalea than agreed to for the Montreal plant.
It is admitted that the difference in cost as far as shift premiums were concerned was very small. It appears that the company was more interested in breaking up the joint negotiations than in settling the contract for all its locations.
There is undisputed evidence that the manning issue had been settled prior to the strike. The one and only dispute during the strike was shift premiums. It was on that issue that Mr. Billing accused the other companies of "capitulation", although he accepted the same terms for the Montreal plant.
For the company to now resurrect the manning issue is to throw road blocks in the way of settlement. The company must know that it would be impossible for the union to concede to this demand, having settled with the rest of the industry without changes in the manning provisions.
Collective bargaining is not carried on in a jungle. An agreement reached on any one issue in dispute must be honoured, otherwise the parties would never finalize negotiations for a contract.
The analogy with the Toronto Jewellers Manufacturing case is not valid here. In that particular situation the employers had made a contract offer to the union, the offer was rejected by the union. Several weeks later the union was prepared to accept the same offer which the employers had withdrawn in the meantime. In the case before us the employer requested changes in manning and later withdrew their request. Now 6 months later the respondent is renewing the request for changes in manning for its Bramalea plant. This is tantamount to the union requesting changes in the wage settlement or any other item agreed to prior to the strike.
I must therefore conclude that the company is determined to frustrate the negotiations and make it impossible to conclude a collective agreement for the Bramalea plant.