United Steelworkers of America v. Cross Tube Products Inc., 1980 CanLII 944

[1980] OLRB Rep. May 669

1813-79-U United Steelworkers of America, Complainant, v. Cross Tube Products Inc., Respondent.

BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: Martin Levinson and J. Fitzpatrick for the complainant; Philip J. Wolfen­den and Len Jones for the respondent.

DECISION OF IAN C. A. SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER H. J. F. ADE; May 12, 1980.

1. This is a complaint under section 79 of The Labour Relations Act which alleges that the respondent has violated sections 14, 56, 58 and 61 of the Act. At the hearing the complainant restricted its submissions to the alleged violation of section 14, contending that the respondent had failed to bargain in good faith and make every reasonable effort to make a collective agreement.

2. The complainant trade union was certified to represent a unit of the respondent's employees on September 27, 1979. On October 1, 1979 Mr. John Fitzpatrick, a representa­tive of the complainant, served a written notice to bargain on the respondent. The respon­dent's officials had never before been involved in dealing with a trade union and retained the services of Mr. David Brisbin, a solicitor experienced in labour relations matters.

3. On October 9, 1979, Mr. Brisbin wrote to Mr. Fitzpatrick to inform him that he had been retained by the respondent and to invite suggested meeting dates to commence ne­gotiations. In his letter Mr. Brisbin also made the following request:

"I am also requesting on behalf of the Company and pursuant to Sec­tion 70 of the Ontario Labour Relations Act for your permission to in­stitute interim wage increases for employees in the bargaining unit that your Union now represents.

The employees have been without a general increase for some time and, having regard to the realities of negotiating a first Collective Agreement, it may be some time before such an increase would be forthcoming.

I realize, of course, that this request on behalf of the Company and your hoped for permission would be without prejudice to either party in wage and/or benefit discussions at the bargaining table.

The proposed increase to the bargaining unit is an across-the-board in­terim increase of 7%."

4. Following the sending of this letter a number of telephone conversations ensued between Mr. Fitzpatrick and various persons in Mr. Brisbin's office as attempts were made to reach agreement on a date to commence negotiations, and also with respect to the compa­ny's request that it be permitted to institute a 7 per cent wage increase. In one of these tele­phone calls which took place on a Friday, Mr. Brisbin indicated that the company would like to implement the wage increase as soon as possible. For his part, Mr. Fitzpatrick replied that if the company sat down with him the following Monday and agreed to a union security pro­vision and the implementation of weekly sick pay benefits he would meet with the bargain­ing unit employees and get them to agree to the 7 per cent increase. The respondent did not take up Mr. Fitzpatrick's offer. Mr. Brisbin explained the respondent's action in this regard by stating that he had not wanted to get involved in "pre-bargaining" with the respondent.

5. Initially, there was some difficulty in arranging for a date to open negotiations. Mr. Fitzpatrick desired a date in the week commencing Monday, October 29, 1979. For his part, however, Mr. Brisbin stated that because of other commitments he would be unable to meet with the complainant until the week commencing Monday, November 12th. Eventu­ally Mr. Brisbin freed himself of his commitments on Monday, November 5th, and the par­ties agreed to meet on that date.

6. Prior to November 5th, Mr. Fitzpatrick forwarded to the respondent the com­plainant's proposed terms for a collective agreement. The proposal indicated the union's de­sire for "a substantial wage increase" but made no mention of any specific amount. The meeting on November 5th lasted for about an hour, and consisted primarily of Mr. Brisbin questioning Mr. Fitzpatrick concerning certain aspects of the complainant's proposals. At the end of the meeting, Mr. Brisbin indicated that the respondent would require some time to prepare a reply to the complainant's proposals, and suggested that the parties meet again on November 26, 1979. Mr. Fitzpatrick objected to waiting until November 26th, leading Mr. Brisbin to reply that although he had already planned something else for November 19th, he would be prepared to meet on that date. The parties then agreed to meet on No­vember 19th and to hold open November 26th for a possible future meeting.

7. On Friday, November 16, 1979, Mr. Brisbin had the respondent's reply to the complainant's proposals delivered to the complainant's offices. The respondent's proposals took the form of a draft collective agreement covering all non-monetary items. A number of the clauses proposed by the respondent were either the same as, or very similar to, the clauses earlier proposed by the complainant.

The parties met as arranged on November 19th. In the morning Mr. Brisbin was not in attendance, although another solicitor from his office, Mr. P. Wolfenden, was present. The parties proceeded to discuss in detail the respondent's proposals. Approximately forty clauses proposed by the respondent were accepted by Mr. Fitzpatrick for inclusion in a final collective agreement. With respect to approximately twelve other clauses, Mr. Fitzpatrick indicated that he could not agree with the respondent's proposal as worded, and that some modifications would be required. In addition, Mr. Fitzpatrick made it very clear that he found three of the respondent's proposals completely unacceptable, namely its proposals with respect to management rights, seniority and union security.

9. Both the complainant and the respondent were in agreement that the collective agreement should contain a management's right clause which, subject to the other terms of the agreement, would permit the respondent to hire, promote, demote, lay off and disci­pline employees for just and reasonable cause. The respondent, however, proposed to also include a number of other specific management rights, most, if not all of which, would ap­pear to be implicit in the union s proposal.

10. The differences between the parties on the matter of seniority were somewhat more fundamental. At the bargaining table Mr. Fitzpatrick made it clear that he would be agreeable to almost any clause which entitled a more senior employee to a job provided he had the ability to do the work involved. For its part, however the respondent proposed a sys­tem whereby seniority would be a governing factor only where the knowledge, efficiency, ability, physical fitness and reliability of competing job applicants were approximately equal. Mr. Fitzpatrick objected to this proposal on the basis that it would result in a "compe­tition" between employees after the same job, and that to support one employee the union would be required to "knock down" another employee.

11. Clearly the most important of the three major issues in dispute as far as Mr. Fitzpatrick was concerned was the issue of union security. The complainant originally pro­posed a "Rand Formula" whereby the respondent would deduct from the pay of each em­ployee in the bargaining unit union dues, fees and assessments as prescribed by the com­plainant's constitution. The respondent for its part, proposed only the voluntary payment of union dues. During the morning of November 19th, Mr. Fitzpatrick made the statement that the policy of the complainant union was not to agree to a voluntary check off.

12. Mr. Brisbin arrived at the scene of the negotiations during the luncheon recess on November 19, 1979 and was briefed on the morning's developments by Mr. Wolfenden. Both Mr. Brisbin and Mr. Wolfenden attended at the afternoon session with Mr. Brisbin acting as the respondent's spokesman. There was a considerable degree of discrepancy be­tween the testimony of Mr. Fitzpatrick and Mr. Brisbin concerning what happened on the afternoon of November 19th. We are satisfied, however, that shortly after the afternoon ses­sion began, Mr. Brisbin made it clear that the respondent was taking a strong stand with re­spect to the three major issues in dispute, stating that they had not been raised as a "smokes­ creen". For his part, Mr. Fitzpatrick indicated that the union was equally firm in its position. In particular, Mr. Fitzpatrick made it clear the complaint would not accept a form of vol­untary dues check-off. Mr. Brisbin testified that he "believed" that; there then followed a discussion concerning the reasoning behind each side's position on union security. Accord­ing to Mr. Brisbin, Mr. Fitzpatrick justified the complainant's position on the grounds that it was responsible for representing all employees in the bargaining unit, and because it wanted to avoid pitting employees against each other. For his part, Mr. Brisbin testified that he stated that the respondent felt that union support was not the respondent's business, and that each employee should make his own decision about being a member of the union. In cross-examination, Mr. Fitzpatrick indicated that he had not outlined the reasons for the complainant's position on the three main issues in dispute and that he could not recall whether Mr. Brisbain had offered any explanation for the respondent's position on union security. At one point during the afternoon of November 19th, Mr. Fitzpatrick stated that the respondent was no better then Radio Shack, and was bargaining in bad faith. The refer­ence to Radio Shack was doubtless to the Radio Shack case, (File No. 1004-79-U, decision dated December 5, 1979) which was at the time still before the Board. Mr. Fitzpatrick also made the comment that by the time the parties completed their negotiations the Legislature would likely have made dues check off compulsory.

13. About mid-way through the afternoon of November 19th, Mr. Fitzpatrick made the statement that he was ready to make a new proposal on union security so as to show that the complainant was prepared to make a settlement. Mr. Fitzpatrick stated that he would accept a "maintenance of membership" provision with a requirement that all new employ­ees pay union dues. Mr. Fitzpatrick then asked Mr. Brisbin what he proposed. According to Mr. Fitzpatrick, Mr. Brisbin replied that he was not authorized by his client to go further than was in the respondent's written proposal. Mr. Fitzpatrick added that he suggested that the respondent's position on the main issues was non-negotiable, which led to the discussion becoming more heated and Mr. Brisbin finally commenting, "if you want to put it that way it's non-negotiable". For his part, Mr. Brisbin testified that he did not use the phrase, "non­negotiable", adding that it would be a "stupid" thing for him to say. Mr. Brisbin also doub­ted the claim that he had said that he was not authorized by his client to go any further, par­ticularly since the respondent had given him a wide degree of discretion in negotiating non-monetary issues. Mr. Brisbin did acknowledge, however, that he had stated that the respon­dent was firm on the three main issues. The respondent never did make any move in re­sponse to Mr. Fitzpatrick's altered proposal with respect to union security.

14. At about 2:30 p.m. on November 19th, Mr. Fitzpatrick stated that the respondent was not bargaining in good faith and he proposed a recess in the talks so as to allow Mr. Bris­bin to talk to his clients. Approximately fifteen or twenty minutes later the parties met again, at which time Mr. Brisbin indicated that the respondent remained firm in its posi­tions, although he was prepared to review with Mr. Fitzpatrick clause by clause those areas relevant to the three main issues in dispute. For his part, however, Mr. Fitzpatrick indicated he felt that what was important was the principles involved and that discussion should be limited only to the principle of each area of concern.

15. After the parties had repeated their positions they sat there for some minutes without anyone speaking. Mr. Brisbin then commented that he though there was not much purpose in continuing the meeting that day. For his part, Mr. Fitzpatrick indicated that the complainant would be applying for conciliation and perhaps also filing a complaint with the Board. The parties had previously agreed to leave open November 26th for a possible future meeting, but as the meeting of November 19th broke up, the unspoken understanding seemed to be that the parties would not be meeting on that day. In giving his testimony, Mr. Fitzpatrick testified that Mr. Brisbin had indicated that until such time as the complainant agreed to the respondent's position, there would be no negotiations and no monetary offer. In cross-examination, Mr. Fitzpatrick stated that this is only what he understood from Mr. Brisbin's comments. On all the evidence, including the testimony of Mr. Brisbin and Mr. Jones, the respondent's plant manager, we are led to conclude that neither Mr. Brisbin nor Mr. Fitzpatrick actually raised the question of a monetary offer on November 19th. Indeed it appears that at the time both gentlemen were content to leave aside monetary issues and concentrate only on ''language matters.

16. Following the meeting of November 19, 1979, the complainant asked for the ap­pointment of a conciliation officer. The parties met together with a conciliation officer on January 31, 1980. In the presence of the conciliation officer, the parties agreed upon what were the outstanding issues and both sides indicated that they were firm on their positions. The conciliation officer then met with the parties separately. Shortly after lunch the officer broke off conciliation. Neither side appears to have altered its position during conciliation.

17. Counsel for the complainant contended that the respondent had violated its duty to bargain in good faith because:

1. the quality of discussion by the respondent of the complainant's proposals was below acceptable standard, and

2. the respondent had indicated that it was not prepared to negotiate monetary or other issues in dispute until the three main issues had been resolved.

18. It is to be noted that counsel for the complainant did not allege that the positions advanced by the respondent per se indicated that it was bargaining in bad faith. From Mr. Fitzpatrick's comments at the bargaining table, one gathers that at least with respect to the union security issue he felt the respondent's position to be indicative of bad faith bargaining. Mr. Fitzpatrick clearly feels strongly about the need for a fairly strong union security provi­sion in a collective agreement. However, The Labour Relations Act makes mandatory only a voluntary check off provision in a collective agreement if such is requested by the union. Any change to this situation would require an amendment to the Act by the Legislature. (For a discussion of the issue of union security as a negotiable issue see The Daily Times, [1978] OLRB Rep. July 604). In the Radio Shack case, supra, the Board did conclude that the posi­tion of the employer before it with respect to union security was unlawful and directed that the employer move off of its position. In that case, however, the employer's position on union security was part and parcel of a long-standing scheme to undermine the role of the union as the employees' exclusive bargaining agent, something which was neither alleged by the complainant in this nor established by the evidence led before us.

19. As noted above, counsel for the complainant alleged that the quality of discussion by the respondent of the complainant's demands was below an acceptable standard. With respect to this allegation he referred to the Board's decision in Wellington-Dufferin-Guelpli Health Unit, [1979] OLRB Rep. Nov. 115 wherein the Board stated that section 14 requires that there be "a significant commitment of time, effort and energy" in the pursuit of a collec­tive agreement, to the Board's decision in Canadian Industries Limited, [1976] OLRB Rep. May 199, where the Board stated that there must be "full and free discussion" during nego­tiations, as well as to De Vilbiss (Canada) Limited, [1976] OLRB Rep. March 49, where the Board concluded that the duty to bargain under section 14 "is intended to foster rational, in­formed discussion thereby minimizing the potential for unnecessary industrial conflict".

20. In our view, the respondent has established that it was prepared to make a commitment of time and effort to effect a collective agreement. Although initially there was some difficulty in getting the respondent's solicitor to free up dates for negotiations, mutu­ally acceptable dates were finally agreed to. In addition, it is clear that prior to the meeting of November 19th, officials of the respondent put a good deal of work into preparing the re­spondent's proposals. As already noted, in the morning of November 19th the complainant agreed to some forty clauses proposed by the respondent.

21. As for the requirements of "full and free discussion~~ and "rational and informed discussion", it appears that with respect to the issues raised at the bargaining table, the re­spondent was prepared to justify its own positions and to listen to whatever argument were advanced by the complainant. At no time did the respondent refuse to listen to the com­plainant's representative, or request by the complainant that it continue discussions. If Mr. Brisbin did, in the midst of a heated argument, make the comment that the respondent's po­sition on the three main issues was "non-negotiable", in the circumstances the only reason­able interpretation to be placed on the statement was that the respondent was not prepared to alter its position. At all times the respondent clearly acknowledged that management rights, seniority and union security were proper subject matters for negotiation, and it did discuss them, albeit that it took a very firm position with respect to each of them. As indi­cated by the following excerpt from The Daily Times case, however, section 14 of the Act does not go so far as to preclude a party from taking a firm position in bargaining:

"The parties to collective bargaining are expected to act in their individ­ual self interest and in so doing are entitled to take firm positions which may be unacceptable to the other side. The Act allows for the use of economic sanctions to resolve these bargaining impasses."

Taking all of these considerations into account, we are not satisfied that the quality of dis­cussion on the part of the respondent fell below a minimally acceptable level.

22. We turn now to consider the second ground advanced by counsel for the com­plainant, namely that the respondent violated section 14 by not being prepared to negotiate money or the other items in dispute until the three main items in dispute were resolved. It was counsel's contention that the respondent was required to negotiate with respect to all is­sues.

23. The general practice in negotiations is to settle all or at least the great majority of non-monetary items before discussing monetary ones. Here the complainant made no mon­etary demands and never asked the respondent to make a monetary proposal. At all relevant times the complainant appeared to be content to deal only with non-monetary items while leaving the monetary items until later. The same is true with respect to non-monetary items other than the three major issues. Neither side appeared to view the twelve or so issues involved as being major obstacles to a final settlement, and accordingly both were pre­pared to leave them aside while dealing with the three major issues. The complainant did not even ask the respondent to go back to deal with these issues a second time after they had been identified on the morning of November 19th.

24. Mr. Brisbin's indication on the afternoon of November 19th that he saw no useful­ness in proceeding further appears to have been predicated on reasonable belief that neither side wanted to discuss any other matters until the three major issues were settled. Mr. Fitzpatrick did not, either before or after Mr. Brisbin's comments, indicates a desire to leave the three issues unresolved and move on to other matters. This being the case, it cannot be said that the respondent refused to negotiate with respect to these other matters.

25. Having regard to the foregoing, the complaint is hereby dismissed.

DECISION OF BOARD MEMBER C. A. BALLENTINE:

1. With all due respect I disagree with the majority decision. On the evidence sub­mitted it is clear that the respondent, through its lawyer Mr. Brisbin, frustrated the appli­cant's endeavour to reach a first agreement.

2. As the majority stated, the applicant had a difficult time in arranging a date for the first meeting. The union was certified September 27, 1979, but the first meeting was not until November 5th, notwithstanding that the respondent indicated that it was concerned about putting into effect a seven per cent increase to retain its labour force. At the November 5th meeting, Mr. Brisbin suggested that the next meeting take place on November 26th. After an objection by the union, a meeting was scheduled for November 19th. At the November 19th meeting an impasse took place on three issues, although a good number of clauses were tentatively agreed to. The three issues were management rights, seniority and union secu­rity in the centre.

3. I sincerely believe that the union security issue is the key issue to this case. Mr. Fitzpatrick gave evidence that Mr. Brisbin took the position that unless the union agreed to the company's wording on the three issues, negotiations would not continue. On the other side, Mr. Brisbin gave evidence that he stated to Mr. Fitzpatrick that the company was firm on the three issues.

4. In examination-in-chief, Mr. Brisbin told the Board that he arrived at the Novem­ber 19th meeting after lunch and took over from Mr. Wolfenden as spokesman after being briefed by Mr. Wolfenden to the extent of the morning negotiations. He stated, "I told Mr. Fitzpatrick that the three areas are not a smokescreen, company is not going to provide compulsory check off, and it’s up to each member to make up his own mind". Under cross-exam­ination the complainant's lawyer questioned Mr. Brisbin:

Q. "After lunch did you talk about union security? I take it Fitzpatrick al­tered his position to a maintenance shop. Fitzpatrick said now what's your position, do you remember that?

A. I don't think it was a change.

Q. Did you say to the effect you were firm on the three issues?

A. Yes, I said that it wasn't window dressing.

Q. Did you say not authorized to go further on the document?

A. No, I don't think I did, I would be surprised if I said issues not negotia­ble, no, didn’t say union security not negotiable, I think I said in view of the parties' position there wasn't much use in continuing. I am sure I said we were firm on the three areas before the break.

Q. Do you recall Fitzpatrick saying, you'd better go back with your clients, as you are bargaining in bad faith?

A. Could have.

Q. Do you recall before breaking you said not authorized to go further?

A. I may have used those words."

From the above evidence by Mr. Brisbin it is clear that he used a number of phrases to give the union a clear understanding that the company was not prepared to move off its position on the language of the three areas, i.e., firm, not a smokescreen, not window dressing. Re­gardless of how it was said, Mr. Fitzpatrick could only take one meaning and one meaning only, that is unless the union would consent to a "voluntary check off" there would be no fur­ther negotiations.

5. The union's first position on union security was the Rand Formula. The company countered with a voluntary check off, and stood pat. The union modified its position when the company took a firm position on the three areas. The union offered a "maintenance of membership", and that is that existing union members would remain members and that a part from such members only new employees would be required to pay union dues through check off. Under cross-examination, Mr. Len Jones, the respondent's plant manager, in an­swering a question by the complainant's counsel, stated "yes, he (Fitzpatrick) said he would take maintenance of membership check off". Mr. Brisbin was not present at the hearing when Mr. Jones gave evidence, but gave his evidence after Mr. Jones. In cross-examination, Mr. Brisbin indicated that he did not regard Mr. Fitzpatrick's change in position on union security to be a real change, and then added, "our signals may have been crossed". Mr. Bris­bin is a skilled negotiator, surely he understands the various union security schemes. Mr. Jus­tice I. C. Rand, in his arbitration award dated January 29, 1946 cited the different union se­curity systems:

(1) 'Union shop with check off' permits the employer to engage employees at large, but requires that within a stated time they join the union or be dis­missed if they do not.

(2) 'Closed shop' only a member of the union can be originally employed ... [Practice in many industries, i.e., construction].

(3) 'Maintenance of membership' is a requirement that an employee mem­ber of a union maintain that membership as a condition of continuing employment for a stated time, generally the life of an agreement. In this, there can be modifications."

Mr. Justice Rand awarded the U.A.W. at the Ford Auto Company at Windsor, Ontario "compulsory check off of union dues from wages of all workers under the agreement whether union members or not". This award has become known as the Rand Formula.

If there was any misunderstanding as to whether the union moved off the Rand Formula po­sition, this would have been clarified by the conciliation officer at the conciliation meeting January31, 1979.

6. Paragraph 21 of the majority decision states "section 14 of the Act does not go so far as to preclude a party from taking a firm position in bargaining" relying on the following excerpt from the Daily Times case, [19781 OLRB Rep. July 604:

"The parties to collective bargaining are expected to act in their individual self interest and in so doing are entitled to take firm positions which may be unacceptable to the other side. The Act allows for the use of economic sanc­tions to resolve these bargaining impasses."

[emphasis added]

Management rights and seniority are clearly legitimate issues for management to be con­cerned about; but union security is not. Mr. Justice I. C. Rand had this to say on this subject:

"I see no special interest of the employer as such in these possible dangers and in the present state of things, those who control capital are scarcely in a position to complain of the power of money in the hands of labour."

The respondent's firm position on management rights and seniority is "hard bargaining" and, as such, is not a violation of section 14, but for the company to take a rigid position on union security and stonewall the union is "surface bargaining" and constitutes bargaining in bad faith.

7. Paragraph 18 of the majority decision refers to the Radio Shack case and states, "the Board did conclude that the position of the employer before it with respect to union se­curity was unlawful and directed that the employer move off its position. In that case, how­ever, the employer's position on union security was part and parcel of a longstanding scheme to undermine the role of the union as the employees' exclusive bargaining agent, something which was neither alleged by the complainant in this case nor established by the evidence led before us". Does it make it less of a violation of section 14 if the company is more subtle and sophisticated? I refer to paragraph 87 of Radio Shack:

"87. To the extent that absolute rigidness is inconsistent with good faith bar­gaining and reasonable effort, it should be clear from our reasoning above that we are of the view than an employer can be no more rigid and unbending on union security than he can be on any other issue. Section 36a simply pro­vides the union with a very limited form of union security as a matter of right. Any other form of union security is still clearly negotiable and, thus, an em­ployer's bargaining obligation remains unchanged. Indeed, the very fact that the Legislature thought it necessary to enact section 36a conveys a statutory recognition of how important this issue is to trade unions and the problems associated with employer opposition. It would therefore be strange for this Board to interpret the presence of a provision benefiting trade unions to some limited degree in a manner which would encourage employer resist­ance and thereby exacerbate collective bargaining conflict in relation to this very sensitive issue. The issue is easily manipulated by an employer intent on undermining the exclusive role of a certified bargaining agent arising as it does in first agreement controversies. The Board must therefore judge bar­gaining with this fact clearly in mind."

However, paragraph 86 of the Radio Shack decision stated: "It is simply wrong to conclude that offering what the statute requires as a bare minimum in the area of union security can­not be held to constitute bargaining in bad faith. Standing alone this may be the case."

8. The decision of the majority in the instant case has taken the position taken in Radio Shack as absolute, notwithstanding that the union in the instant case modified its posi­tion, and still the company remained in a rigid position. The amendment to the Act in 1975 extended the Board's remedial jurisdiction under section 79 to include orders and directions and has resulted in a number of landmark equitable decisions, e.g., Radio Shack. However, the majority decision, taking Radio Shack into consideration, suggests that the Board will not find that the union security issue standing alone constitutes bargaining in bad faith. Al­though I disagree with the majority decision, it is obvious that the only course the unions have open to them is to demand a change in the Act to accomplish any equality in collective bargaining for a first agreement. The majority decision in paragraph 18 addressed itself to this issue, "The Labour Relations Act only makes mandatory a voluntary check off provision in a collective agreement if such is requested by the union. If this situation is to be changed, it would require an amendment to the Act by Legislature."

9. In 1946, thirty-four years ago, Justice I. C. Rand in his precedent setting award said, "the social desirability of the organization of workers and of collective bargaining where employees seek them has been written into law. I consider it entirely equitable then that all employees should be required to shoulder their position of the burden of expense for administering the law of their employment, the Union contract: that they must take the bur­den along with the benefit." Section 60 of the Act places a legal obligation on the trade union to fairly represent all employees of the bargaining unit whether members of the union or not. Why should not all employees in the bargaining unit carry their share of the financial costs of that representation?

10. There have been a chain of bitter confrontations (strikes) on the issue of union se­curity in first contract negotiations in Ontario. It seems a pattern has emerged of companies taking a rigid position against the check off of union dues early in negotiations, sit pat, then endeavour to legitimize that rigid position by relying on section 36a-(1) (voluntary remit­tance of union dues). First contracts account for less than ten per cent of all labour bargain­ing in Ontario every year, but generate almost a third of all strikes. Further, one new bar­gaining unit in four simply collapses instead of striking. The decision of the majority in this case adds the employees of Cross Tube Products Inc. to these unfortunate statistics. Will they ever be able to avail themselves of the right of union representation which they believe the preamble of the Act assured them of?

11. The decision should have been that the respondent violated section 14 by taking a rigid position on union security and failed to bargain in good faith and make every reason­able effort to make a collective agreement. The parties shall resume collective bargaining and further, the respondent shall cease and desist from resisting the union's position of maintenance of membership union security provision in the collective agreement.

12. In view of the majority decision prevailing as the decision of the Board, and in view that my decision will not contribute to a collective agreement for the thirty-three em­ployees of the respondent, it is my opinion that the Legislature of Ontario should take cog­nizance of this serious inequity in industrial relations and should amend section 36a of the Act to accomplish a compulsory form of remittance of dues by the employer. Four provinces of Canada, namely, Quebec, Manitoba, Saskatchewan and British Columbia have compul­sory dues check off legislation, although there are different methods achieving this under the respective Acts.