[1980] OLRB Rep. April 448
1360-79-U Toronto Typographical Union No. 91 (ITU), Complainant, v. Goldcraft Printers Ltd., Respondent.
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members C.G. Bourne and P.J. O'Keeffe.
APPEARANCES: James Buller for the applicant; R. Heikkila for the respondent.
DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN AND BOARD MEMBER C.G. BOURNE; April 16,1980
The name "Goldcraft Printers Limited" appearing in the style of cause of this complaint as the name of the respondent is amended to read: "Goldcraft Printers Ltd."
This is a complaint filed under section 79 of The Labour Relations Act alleging a breach of the section 14 duty to bargain in good faith and make every reasonable effort to conclude a collective agreement. The complaint was filed on October 17, 1979. The complaint alleges that the company adopted a hostile and contemptuous attitude to the union s proposals from the outset of bargaining and on July 25, 1979, the first day of bargaining, referred to these proposals as "garbage". The complaint alleges that the company refused to bargain seriously or reasonably on the union's proposals or offer anything resembling a full counter proposal even though the parties were in the "open period" on October 12, 1979. The complaint further alleges that the company has attempted to deal directly with its employees behind the union's back. In a letter to the Board dated December 7, 1979 the complaint was enlarged to encompass allegations that the company had attempted to nullify the Board's description of the bargaining unit, had denied bindery employees wage increases and had in fact "tabled wage rates much lower than rates currently paid at Goldcraft which are much lower than current industry wide rates", had totally refused to bargain on union security, and had worsened its wage offer by tabling a second year wage increase "so small to be tailor-made for union and employee rejection." In addition, the complaint refers to the refusal of the company to allow employee negotiators to attend negotiations during working hours.
The complainant trade union was certified by decision of this Board dated June 28, 1979. The certification was uncontested. There were no charges or employee petitions and the parties agreed on the description of the bargaining unit. The Board accepted the agreement of the parties in respect of the bargaining unit even though the unit was not described in terms of either all employees or in terms of a craft. The Board certified the complainant as bargaining agent for all production employees of the company engaged in offset preparatory work, press work and bindery work save and except non-working foremen and persons above the rank of non-working foremen. The Board usually refuses to certify in terms of work classifications because subsequent disagreements between the parties as to who falls within these classifications can occur. The bargaining which followed between these parties is a case in point.
In a decision dated November 6, 1979 the Board found that the respondent company terminated Mr. Frank O'Grady, a bargaining unit employee, on or about August 30 1979 in violation of the Act.
The parties to this matter commenced negotiations on July 25, 1979. The union filed with the company a copy of a master agreement between Council of Printing Industries of Canada and The Toronto Typographical Union No. 91. The master agreement, with minimal modification, served as the union's initial demands. Mr. R.E. Heikkila, the company's counsel who served as its negotiator, testified that in many areas the master agreement filed with the company did not relate to the company's operation and for this reason he described the union's proposals as "garbage". He adopted the usual negotiating approach of seeking clarification from the trade union on the meaning of each of its proposals and dealing with non-monetary items before monetary. After four hours of discussion on July 25th (the first meeting of the negotiation of a first agreement) the trade union threatened to apply for conciliation. Mr. Heikkila in turn threatened to file a section 14 complaint and the trade union agreed to meet the company again on August 7th. The union, however, without further consultation with the company, applied for conciliation on August 1, 1979.
Conciliation was granted over the objection by the company and the first meeting was scheduled for September 12, 1979. The negotiations broke down very quickly over the issue of union security. The union was demanding a closed shop arrangement with a union hiring hall. The company took the position that it would not agree to hiring through the union office and would not agree to union membership as a condition of employment. The union asked for a "no board" report. The conciliation officer reported to the Minister of Labour that he had been unable to assist the parties in reaching a collective agreement and on September 24, 1979 the Minister advised the parties that he would not be appointing a Board of Conciliation. The parties, therefore, were legally entitled to strike or lock out on October 11, 1979; sixteen days following the release of the Minister's letter. As of September 24th, however, the parties had discussed few of the non-monetary issues and none of the monetary items which were in dispute.
The parties met in the presence of a mediator on October 9th and 12th. The company tabled its first written counter proposal on October 9th rejecting the language proposed by the anion on all but duration of agreement, Notice to Amend or Terminate, Health and Safety and portions of the language proposed by the union in respect of the grievance procedure, arbitration and the No strike/No lockout clause. The company's proposal referred to Articles 12 through 28 (wages, benefits, hours of work and dues check off) as matters "to be discussed on Tuesday." The parties resolved the grievance and arbitration language and the No strike/lockout language on October 9th. The issue of union recognition was focused in this meeting as well. The union s initial proposal of July 25th, 1979 had defined the scope of the union's recognition as including "all offset preparatory work, including pastemakeup, film assembly/stripping, camera operations, platemaking, presswork, coating, bindery work and finishing." The company's October 9th counter proposal defined the unit in terms of "all production employees engaged in offset preparatory work, presswork and bindery work" as it is defined in the Board's certificate but in addition sought to exclude "persons regularly employed for not more than 24 hours per week, casual employees, relief employees, temporary employees and students employed for their vacation." None of these exclusions appear in the Board's certificate. The company took the position that the union was attempting to expand its recognition while the union accused the company of attempting to restrict its recognition.
The parties met again on October 12th, the second day as of which resort to strike or lockout was legal. The meeting quickly floundered on the issue of union security. The demand for a union shop, as included in the union's initial proposal, had not been modified. The company, on the other hand, had taken the position on October 9th that "employees shall be free to join the union." The evidence establishes that shortly after the commencement of the meeting on October 12th, Mr. Earl, the International Representative, advised the company "if you are not prepared to talk about union shop you are wasting your time and might as well go home." The meeting broke off at this point. The instant complaint was filed by the union five days later.
The parties met again on October 22nd. The union softened its position on union security to the extent of seeking a maintenance of membership for present employees who are members and the requirement for all other employees, existing and future, to pay the equivalent of union dues by payroll deduction as a condition of employment; in essence a Rand formula with maintenance of membership for existing members. The company replied by proposing that union membership be a matter of individual choice for each employee and committing Goldcraft to deduct union dues from employees as provided under section 36(a) of The Labour Relations Act.
The first hearing in this matter was held on November 16, 1979. After entertaining opening submissions and hearing evidence from the first union witness, the Board advised the parties to return to the bargaining table. The parties met in the presence of a mediator on November 23rd but returned for continuation of hearing on January 10, 1980. The parties met again in the presence of a mediator on February 4th but again returned for continuation of hearing before the Board on February 5th and February 11th. The labour and management representatives on the Board panel assigned to the case attempted to assist the parties to resolve their bargaining impasse on February 5th. They were unsuccessful and the hearing in this matter concluded on February 11th.
During the course of bargaining following the commencement of hearing in this matter the issue of union recognition took on an added dimension. During this period the company provided the union with data in respect of the wage rates being paid to bargaining unit employees and tabled a wage offer. The union replied that the names of six of the thirteen bargaining unit employees were not shown. The company argued that none of these six performed work within the union's recognition. The company, however, had included their names on the list of employees falling within the bargaining unit which it had submitted with its reply to the union's application for certification.
However, the parties settled the issue of union recognition on February 5th so that prior to completion of the hearing in this matter only four issues remained in dispute between them. These issues are vacations with pay, wages, term and union security. All of the other matters to be included in their first collective agreement have been agreed.
The issue between the parties with respect to vacations relates to the service requirement for three weeks vacation. The company is proposing three weeks vacation after seven years of service while the union's position is three weeks vacation after five years of service. Clearly, the more difficult issues between the parties are wages and union security.
- The company's wage offer will result in wage increases for only two of the bargaining unit employees and provides for hiring rates which are well below the existing rate structure within the plant. The company proposed that it be allowed to pay new hires at these lower rates for up to two years to allow employees to work into their jobs. The union proposed that a helper classification be established instead. The employees who would not receive wage increases on the signing of the agreement if the company's proposal were to be accepted would maintain their existing rates. The company proposed that all rates be increased a further 31¢ per hour effective October 1, 1980 for the second year of the agreement. The company's total wage offer, however, must be considered in light of the increases which were put into effect in December, 1979. The company, although in open period and legally free to alter terms and conditions of employment, sought and received the union's permission to institute wage increases as of November 27, 1979. The letter from the union giving its permission over the signature of Mr. Buller, the local president reads:
"Although several employees of Goldcraft Printers Ltd., were offered no wage increases in the company's offer received on November 22, 1979, the Union hereby grants official written permission to institute all wage increases offered to take effect forthwith.
The union is prepared and desirous of negotiating further wage improvements for all production employees, including the bindery employees.
Please advise by return mail your agreement to live up to your written offer, even though incomplete at this time."
In response the company provided its bargaining unit employees with wage increases ranging from forty cents per hour to one dollar per hour. The company's wage proposal incorporates these increases and provides additional increases for two bargaining unit employees. No other term or conditions of employment has been unilaterally altered by the company.
The anion seeks union security in the form of a maintenance of membership for existing members and a Rand formula check-off for all other employees; that is the payment to the union by payroll deduction of an amount equal to monthly union dues. The company, on the other hand, has offered to deduct union dues from the wages of employees who signify in writing that they wish union dues deducted from their wages and forwarded to the union. This is the type of union security provided for in Section 36(a) of the Act. The company's proposal, as amended on February 5, 1980, goes beyond the "statutory minimum" to the extent that it provides that "once an employee has signified in writing that he wishes union dues to be deducted from his pay and forwarded to the union, his dues deduction will be maintained.
Mr. R. Heikkila, who served as spokesman for the company at the bargaining table and counsel to the company in this matter, testified on behalf of the company. He was asked in cross -examination if he had told the union negotiators early in negotiations that union security would not be a problem. He admitted that he had. He explained that he had spoken with Mr. Goldberg, the managing director of the company, in terms of Rand formula "being a viable way out if you are being hurt economically and require an alternative to hiring through the union." He testified that having had these discussions with Mr. Goldberg he did not hesitate to intimate to the union that if everything else fell into place union security should not be a problem. He testified that the company later reassessed its thinking with respect to union security and came to the conclusion that it should not commit its employees to paving the equivalent of monthly union dues to this union. He referred to the turnover of employees since the union was certified and the union's conduct during negotiations as causing the reassessment.
Mr. J. Schoenherr, a bargaining unit paper cutter employed by the company, was called by the union to testify in this matter. He admitted in cross-examination that Mr. Buller, the union president had suggested to the employees of Goldcraft in August or September (well before the parties were in a position to legally strike or lockout) that "if they slowed down production they might get an agreement faster." Mr. Schoenherr testified that he had not slowed down his production but had no knowledge of whether or not other employees had slowed down. Mr. Heikkila testified that production did slow down during this period. Mr. Schoenherr also admitted that the union's International Representative had discussed the possibility of picketing the house of Mr. Goldberg's mother. She is employed by the company answering the telephone. Mr. Goldberg's mother's house was never picketed by members of the complainant trade union. The company, however, was aware that these discussions had taken place. Mr. Schoenherr further admitted that Mr. Buller had discussed with Goldcraft employees the advisability of calling Goldcraft's customers to inform them of the labour dispute and the possibility of a strike. These discussions took place in September and early October and the evidence establishes that Mr. Buller contacted customers of Goldcraft shortly thereafter. The company has subsequently taken an action against Mr. Buller for slander. Finally, the evidence establishes that Health Inspectors visited the plant on three or four occasions during the Fall. The plant had never previously been visited by Health Inspectors and the company is of the view that their visits were solicited by the union as a form of harassment.
The union argues that it made a number of major concessions in order to attain a minimal settlement compared to the industry pattern and is now faced with a company position "tailor-made for rejection." The union maintains that if it accepts a contract without at least a Rand formula check-off it will be paving the way for its own destruction. The union asks the Board to consider the company's position on union security in light of Mr. Heikkila's evidence that the company had put its mind to the issue and decided that it could live with a Rand formula check-off. The union asks the Board to consider this fact along with the quantum of the company's wage offer and conclude that the company's offer was designed to prevent ratification. The union argues that a wage offer which provides increases for only two employees on the signing of the agreement and then provides no more than an additional 31¢ per hour across the Board next October is bound to turn employees off. The union asks the Board to weigh the evidence before it in the context of a small bargaining unit where the strike weapon is very fragile because of the ease with which the employer can engage in strike-breaking activities and conclude that the company's bargaining position is part of a continuing scheme to undermine the trade union. The union justified its decision to contact the company's customers as a legitimate means of applying pressure on the company. The union seeks the imposition of a collective agreement as a remedy to the alleged breach of section 14.
The company maintains that its offer is reasonable on all counts. The company argues that the wage increases which it granted in December with permission of the trade union must be considered as part of the overall package as must be the second year across the board increase of 31¢ per hour. The company argues that in the circumstances of this case it was justified in reassessing its position on union security and taking a harder line than it had originally intended. The company characterizes the recognition issue, which has now been settled, as a "non issue". The company disputes as a general proposition that the strike weapon is a fragile one in the hands of a small unit citing the risks faced by a small employer if his business is struck. The company argues that collective bargaining as established under the Act is an adversarial process with the parties allowed to pursue their individual self-interest. The company cites the Ottawa Citizen case. [1979] OLRB Rep. Oct. 967, Pine Ridge Nursing Home, [1977] OLRB Rep. Feb. 65 and Daily Times, [1978] OLRB Rep. July 604 in support of this argument. The company takes the position that if the union does not have the leverage to get what it wants in this case it should take the collective agreement offered by the company.
Section 14 of the Act provides:
"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."
The Board has found that the duty operates on two levels. It operates to buttress the employer's recognition of the trade union as the exclusive bargaining agent of all bargaining unit employees. The duty also operates to preserve and maintain the decision-making framework which is essential to meaningful collective bargaining. The Board has found that this second aspect of the duty requires an employer to provide the union with data necessary to its bargaining capability, to engage in full and open discussion on all matters in dispute and to refrain from tactics which upset or destroy the decision-making framework.
- At the recognition level the duty ensures that at the very least the parties share the common objective of concluding a collective agreement. The Board, however, has been careful in its jurisprudence to emphasize the principle of voluntarism which underpins the collective bargaining process. The parties must intend to enter into a collective agreement but the content of that agreement is to be determined by the parties themselves through the process of negotiation and if necessary, negotiation assisted by economic sanction. The Board aptly summarized the extent of the duty in the Ottawa Journal case [1977] OLRB Rep. Nov. 748 wherein at paragraph 12 the Board stated:
"The duty to bargain in good faith is administered by this Board in such a way as to improve and facilitate the practice and procedure of collective bargaining. This approach recognizes, however, that the results of collective bargaining are necessarily dictated by the relative economic strength of the bargaining parties. Although the Board should make every effort to restore a bargaining relationship and re-establish the dialogue between the parties to that relationship, it should not go so far as to redress any imbalance of bargaining power that might exist in a particular bargaining situation."
(See also The Daily Times of Brampton case, supra., and Fashion Craft Kitchens, [1979] OLRB Rep. Oct. 967.) The Board does not regulate the content of collective agreements. In appropriate circumstances, however, the Board will draw an adverse inference with respect to the intent of a party to enter into a collective agreement if it persists in tabling patently unreasonable proposals.
- In the recent Radio Shack decision, [1979] OLRB Rep, Dec. 1220, the Board dealt specifically with the need for circumspection in first agreement situations; especially those in which the employer has committed unfair labour practices in an effort to stem the union's organizing. The Board put its mind to the difficulties presented in assessing bargaining behaviour in first agreement situations at paragraph 74 of that decision and stated:
"In discussing the nature of the bargaining duty, we voted the difficulty of distinguishing hard bargaining from conduct which is more in the nature of 'going through the motions', and lacking any real intention of signing an agreement – ‘surface bargaining' if you will. Experience has taught this Board that it must be particularly sensitive to this distinction in first contract situations. Few employers willingly embrace collective bargaining, but most accept the right of the employees to participate in that process and negotiate first agreements with duly certified bargaining agents without rancor or controversy. This, of course, does not mean that all first agreement controversy is a product of anti-union animus or that good faith bargaining in first agreement situations must always end in a contract Neither proposition would be true… The Board should not conclude lightly that an employer is merely engaging in hard bargaining in such situations or that it is exercising its freedom of speech in communicating directly with bargaining unit employees. The nuances of each case must be considered and earlier employer unlawful conduct may trigger a detailed assessment of bargaining activity. The legitimate concern for 'freedom of contract' or 'freedom of speech' ought not to blind the Board to abuses committed under either banner, and that strike at other equally fundamental tenets of the legislation.
While the principle of voluntarism is fundamental to the collective bargaining process the Board must not be blinded by it in critically assessing what is portrayed as hard bargaining. This is especially so in first agreement situations where an employer who maintains he is engaging in hard bargaining has previously attempted to upset the union's organizing efforts by unlawful means.
This is not a case where the employer has conducted himself in a manner which has upset or undermined the decision-making capabilities of the other side. The employer has engaged in a full and open discussion of all matters in dispute. Indeed, with the exception of four issues, all of the other matters which will comprise the parties' first agreement have been negotiated. It was the union which broke off direct negotiations at the outset after only four hours of discussion and sought a "no board" report after a single conciliation meeting. In the circumstances, the union cannot be heard to complain that the employer had failed to table a full counter proposal prior to the expiration of the conciliation process. The company followed the usual bargaining practice of seeking clarification from the union and then attempting to resolve non-monetary issues before tackling the monetary issues. The company's approach in this regard is the same as that followed by employers and trade unions generally in the negotiation of a collective agreement. Again it is not unusual for a small employer to meet with his employees in bargaining after working hours, especially where it is anticipated that a number of meetings will be required as in most first agreement negotiations. We attribute Mr. Heikkila's reference to the union's bargaining proposals as "garbage" to the emotion of the moment. Mr. Heikkila was concerned and upset that the union's initial proposals had been taken in large part from the Toronto Typographical Master Agreement. His spur of the moment comment cannot be construed as an act of bad faith. The company attended a series of meetings with the union and the progress that was made over time evidences the fullness of the discussion. If the union is going to succeed in this matter it must establish that the company through its bargaining strategy is attempting to avoid a collective agreement.
When considered in isolation the company's last offer for a first agreement, including all matters agreed between the parties, is not so patently unreasonable as would suggest that the employer is not interested or not prepared to enter into a collective agreement. The increases given to employees in December with the permission of the trade union must be considered as part of the employer's wage proposal. The employer's position on union security is slightly better than the statutory minimum. This is a first agreement bargaining situation, however, in which the employer was found to have terminated the employment of an employee member of the union's bargaining committee, in part at least, for anti-union reasons. Accordingly, the Board must take a broad look at all the evidence in order to determine if the firm position taken by the company, especially in respect of union security, evidences a desire n the company's part to avoid a collective agreement.
The difficult and unique aspect of this case is the evidence of Mr. Heikkila that early in the negotiations he intimated to the union that if everything fell into place union security would not be a problem and his admission that at the time he and his client were considering Rand formula as an acceptable form of union security. The company later changed its mind and is now committed to be a voluntary dues deduction arrangement with a maintenance aspect to it. The union did not challenge Mr. Heikkila's evidence on this point. Indeed, the union relies on it. This evidence, however, cuts two ways. On the one hand it satisfies the Board that at the time Mr. Heikkila and his client came to the conclusion that the Rand formula was an acceptable form of union security the company was thinking in terms of entering into a collective agreement. The company's decision to seek union permission to institute wage increases during the open period is supportive of this conclusion as well. This evidence, therefore, blunts the inference which might otherwise be drawn from the unfair labour practice finding against the company. On the other hand, however, Mr. Heikkila's evidence establishes that the company recognized that union security in the form of Rand formula would provide a resolution to an issue central to the negotiation of a first agreement. Notwithstanding its recognition of this fact the company changed its mind and is now taking a firm position which is unacceptable to the trade union. The company explains its change of mind by reference to the union's conduct during bargaining and its employee turnover. The Board, however, must decide if the company's change of mind represents a decision on its pan: that it is no longer prepared to enter into a collective agreement with the union. Regardless of the behaviour of the trade union and its impact on the relationship between the parties the company is required to maintain its intent to enter into a collective agreement. This is not to say, however that a company faced with union pressure tactics cannot seek relief under the Act where the tactics are viewed as unlawful or alter its bargaining expectations in response.
There is no doubt that the union in this case has attempted to put pressure on the company by economic and other means. Mr. Buller suggested to the company's employees that a slow-down of production might accelerate negotiations. He justified his contact with the customers of the company on the basis of applying pressure. The International Representative discussed the possibility of picketing Mr. Goldberg's mother's residence. Clearly, he did so because of its potential impact on Mr. Goldberg. The company was of the view that the series of visits by Health Inspectors constituted another attempt by the union to apply pressure. Similarly, the union's decision to break off direct negotiation after 4 hours, to break off conciliation after a single meeting and to request a no-board report at the earliest possible date must also be viewed as a union attempt to apply additional pressure. A union which seeks to apply pressure in these ways is not immune from adverse employer reaction so long as that reaction does not take the form of a breach of the duty to bargain.
This Board has long held that hard bargaining and firm positions do not constitute a breach of the duty to bargain. In the absence of anything approaching the pattern of unlawful activity which existed in the Radio Shack case, supra, (as allowed the Board to find that the position advanced by the company in respect of union security constituted a continuation of that pattern), in the face of evidence which establishes that early in the negotiations the company was prepared to offer a form of check-off acceptable to the trade union, and having regard to the methods adopted by the trade union to apply pressure, we are not satisfied on the balance of probabilities that this company is attempting to undermine the trade union. In our view, the position presently taken by the company at the bargaining table is a firm but legitimate response to the union's bargaining tactics.
We have not been influenced in our conclusion by the union's argument that the strike weapon is a fragile one in a small bargaining unit situation. Its effectiveness in any bargaining situation will depend upon a range of factors exclusive of the size of the bargaining unit. The company has proposed terms of settlement on all matters in dispute. The union may not consider the package offered by the company to be an acceptable one. Union acceptability, however, is not the test in deciding if an employer is bargaining within the section 14 duty. We reiterate that on the balance of probabilities we are satisfied that this company is bargaining within the requirements of its section 14 duty.
Having regard to all of the foregoing, this complaint is hereby dismissed.
DECISION OF BOARD MEMBER P.J. O'KEEFFE:
I dissent.
No matter how many legalese phrases or borrowings we might take from past allegedly profound decisions of this Board dealing with previous like situations and cases of this kind, the one real blunt fact of life from the evidence in this case is that this respondent employer does not want to be saddled by either a union or a collective agreement in its relationships with its employees.
The evidence in clear and simple broad daylight, not shrouded or clouded by relevancies as determined by rules of evidence, legal jardon, balance of probabilities and such other high sounding complex phrases and legalese academic reasonings is an all too familiar story of legal gamesmanship by employers skilled in the art of destroying the union "game" in the industrial relations jungle.
The evidence is clear that from the beginning the respondent employer rebuffed the peaceful negotiating overtures of the union representatives when they approached him after they had signed up the employees and prior to certification.
In reply to the union s application for certification, the respondent company, in an industrial relations sophisticated legal maneuver, agreed to the union's proposed bargaining unit which was a unit of 13 employees. The sophistication of this legal manouver is that it puts the applicant union initially in the position where it must produce evidence of membership in its union of the required maximum statutory super majority to gain certification.
The union's membership evidence met this first obstacle requirement. The reason I use the words "legal maneuver" in the above context is that the evidence discloses that by the time the union got to the bargaining table the employer was only willing to go through the charade of bargaining for a unit of six employees. Apart from other matters in dispute the respondent employer arbitrarily and in a demonstrated show of bad faith reneged from the agreed on bargaining unit description and introduced the fundamental undermining issue of the extent of the union's statutory bargaining rights. This issue was guaranteed to put the union in a position that they had to struggle all over again for the basic ingredient of any good faith bargaining foundation which was the very acceptance of the union as the bargaining agent.
On the commencement of bargaining on July 25, 1979, the union proposed as a basis for negotiations a modified draft agreement based on a master agreement between the Council of Printing Industries of Canada and The Typographical Union No. 91. This proposed agreement is geared to this particular industry, and is an agreement agreed to and in effect for 26 employers in this industry in Metropolitan Toronto, who are signatories to the agreement, and for an additional 16 employers in Metropolitan Toronto who, while not signatories to the master agreement, are nevertheless bound by its terms. These respondent employer's description of this modified master agreement put forward by the union as "garbage" is a fighting adversarial word, again guaranteed to set the stage for conflict and demonstrated bad faith.
Most of the relevant evidence in this proceeding is outlined in the majority decision and need not be repeated. However, it is worthy of note to relate that the first union bargaining committee consisted of the assigned full-time representatives of the union together with two rank and file employee bargaining representatives, Mr. Ron Matthews and Mr. Frank O'Grady. Both of these employees were the subject of a union complaint filed under section '79 of the Act in which the union alleged that Mr. Ron Matthews had been subjected to verbal threats of discharge by the respondent company contrary to the Act. The union also alleged that the second rank and file employee member of the bargaining committee, Mr. Frank O'Grady, was terminated by the respondent company contrary to the provisions of The Labour Relations Act. The Board in its decision dismissed the union's complaint as it related to Mr. Matthews and upheld the union's complaint with respect to Mr. O'Grady In that decision, Board file 1029-79-U dated November 6, 1979, the Board stated the following:
"Mr. O'Grady is a visible trade union supporter who is a member of the complainant union's bargaining committee. The parties have yet to conclude a first collective agreement and hence their relationship has yet to be formalized. In this setting the termination of an employee member of the union's bargaining committee is an event of some significance. The Board has reviewed the evidence before it in support of the company's contention that he was terminated because of the poor quality M his work but has not been satisfied that Mr. O'Grady was terminated solely for this reason. Having regard to his trade union activity, to the timing of his termination and to the quality of the company's evidence vis-a-vis his work as reviewed in paragraph 14 herein, the Board hereby finds that Mr. O'Grady was terminated in contravention of the Ac': and orders that he be reinstated forthwith with compensation for his lost wages."
As correctly stated by the Board above, the termination of an employee member of the union's; bargaining committee is an event of some significance, particularly when such event is clearly unlawful and contrary to the Ontario Labour Relations Act. The event become even wore significant in light of the present complaint before the Board and the evidence before us that Mr. O'Grady never did return to the employment of the respondent company but made a financial settlement in lieu of returning to work. Needless to say, he never returned to the bargaining table again. The only further evidence we received respecting Mr. Matthews is that he quit his employment with the company and his position on the union's bargaining committee.
The respondent employer's interference with rank and file employees continued to October 12, 1979, five days prior to the filing of this complaint. The evidence discloses that the employer's counsel, who also wore the negotiator's hat, as well as an adversarial professional, demanded to have the names of the employee observers who were in attendance at the mediation meeting on that date. The tone of this demanding request for names was, in my view, intimidation of the grossest kind.
It was this hostile management climate that gave rise to the instant complaint. During the protracted Board hearing in this matter the parties, with the encouragement of this Board, met with a view to arriving at a settlement of the items in dispute. We are not privy to all of the such bargaining but it is quite clear from our first-hand knowledge of the employer's response to the sensitive union security issue that the union will not receive a reasonable agreement from this respondent company.
Faced with the foregoing, we must fashion a remedy in accordance with our statutory obligations. To walk away from this bitter dispute by dismissing the union's complaint and buying the respondent company's argument respecting the sacred cow adversarial process as enshrined according to the company's argument in the Ottawa Citizen case, [1979] OLRB Rep. Oct. 967, Pine Ridge Nursing Home, [1977] OLRB Rep. Feb. 65 and Daily Times, [1978] OLRB Rep. July 604, is tantamount to leaving the unfortunate employees tied hand and foot to the company's gate at the sacred cow adversarial mercies of this already convicted union activist firing employer.
I reject the glories of the adversarial philosophy in the matter of labour relations. Industrial labour relations, in my view, in accordance with my statutory obligations as a member of The Ontario Labour Relations Board, is a sensitive human people problem touching on the lives of little people who happen to be employees of an employer. In the instant case we are dealing with the employee problems of approximately 13 employees, the majority of whom have freely indicated by their membership evidence that they want a union to represent them in their relations with their employer. Despite all of our great scientific and human progress in the 1980's, these few employees are just attempting to move out of the master-servant relationship of times well past and are attempting to assert their rights as provided for them in progressive labour legislation. They have come to believe that the Ontario Labour Relations Act and its administrative arm The Ontario Labour Relations Board can provide them with the protection to freely join the union of their choice and assist them in giving them a say in their day-by-day relationships with their employer by freely negotiating a collective agreement that will regulate their working lives with the employer. A collective agreement to them represents a worker's bill of rights on the job and will give them a reasonable say and rewards in their working relationships with their employer. They are not attuned to the jungle philosophy of legal education in our society that glories in adversarial postures. They are not conditioned by our civilized society or our layman education to perform as gladiators in a Roman sporting ring. Adversary legal postures that have to establish that a rape victim is somehow a whore asking for the misfortune that befell her to establish the legal truth of a matter are legal academic maneuvers foreign to the civilized lay person. They believe, as I do, that when the Ontario Labour Relations Act speaks in its preamble to further harmonious relations that it means just that — responsible civilized endeavour not resorting or glorifying its opposite which is adversarial gladiator endeavours.
The majority decision make much of the repugnant suggestion of the picketing of the home of Mr. Goldberg's mother. This piece of "damaging" evidence was led in cross-examination by Counsel for the respondent; the "damaging" evidence was in fact no stronger than that this distasteful suggestion was never more than a discussed possibility that was part of a general discussion respecting what the union might do to cope with the bad faith tactics of the employer. The union cannot be made out to be a "heavy" because of this random suggested possibility. The facts are that this possible resource was never acted on and in fact was rejected by the employees. The evidence of the union's conduct in this matter is one of a frustrated bargaining agent that sought every lawful means to have the unlawfully dismissed employee reinstated and recourse to bring every lawful influential persuasion on this errant employer to arrive at an agreement. As I see my obligation as a member of the Board in accordance with the statutes governing my decision, I am particularly mindful that the preamble of the Ontario Labour Relations Act provides as follows:
"WHEREAS it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees."
Section 8 of The Interpretation Act provides that:
"The preamble of an Act shall be deemed a part thereof and is intended to assist in explaining the purport and object of the Act."
Further, section 10 of The Interpretation Act provides:
"Every Act shall be deemed to be remedial whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."
- Obligated by the foregoing, and in accordance with the remedial powers of this Board given to it by the Ontario Labour Relations Act to give real meaning to the intent, meaning and spirit of the Act, I would order that the parties meet forthwith with Ministry of Labour Mediator Mr. Fraser Kean to negotiate and enter into a collective agreement. Failing agreement between the parties on a voluntary negotiated agreement, I would order that Mr. Fraser Kean draft a collective agreement for the parties that would be final and binding on the parties for a term of not more than one year from the submitted date of the draft agreement which shall be completed not more than sixty days from release of this decision. In the event that Mr. Fraser Kean is unable to act as a mediator-arbitrator in this matter, the Board will remain seized of this matter for the purpose of appointing a mediator-arbitrator to carry out the remedial provisions of this decision.