Retail Clerks Union, Local 409 v. Northwest Merchants Ltd. Canada

[1983] OLRB Rep. July 1138

0508-83-U Retail Clerks Union, Local 409, Complainant, v. Northwest Merchants Ltd. Canada, Gerald Robert Kowbel and Janice Lilene Kowbel, Respondents

BEFORE: R. D. Howe, Vice-Chairman, and Board Members E. J. Brady and E. G. Theobald.

APPEARANCES: Ian F. Reilly, Michael Fraser and Ron Springall for the complainant; no one appearing for the respondents.

DECISION OF THE BOARD; July 21, 1983

1. This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that it has been dealt with by the respondents contrary to sections 15, 43, and 89(7) of the Act.

2. A copy of the complaint, blank reply forms, and a formal Notice of Hearing were forwarded to the respondents by the Registrar on June 14, 1983. The (Form 8) Notice of Hearing included the following information:

"1. TAKE NOTICE of the hearing by the Board for THE PURPOSE OF considering the evidence and representations of the parties with respect to all matters arising out of and incidental to the complaint filed under Section 89 of the Labour Relations Act.

2. AND FURTHER TAKE NOTICE that the hearing will take place at the Viking Room, Valhalla Inn, 1 Valhalla Inn Road, Thunder Bay, Ontario, on Thursday, July 7, 1983, at 9:30 o'clock in the forenoon (E.D.T.).

3. IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS."

4. The respondent Gerald Robert Kowbel, who is the President (and Manager) of the respondent employer, sent the following letter to the Registrar on June 27, 1983 by registered mail:

"We have your letter of June 14, 1983 along with a notice of hearing and a Complaint under Section 89 of the Labour Relations Act.

We are requesting that this matter not go forward on July 7,1983. We advance the following reasons for that request:

1. An application has been made by the Company to the Minister of Labour pursuant to Section 40 of the Labour Relations Act for an employee vote on our final offer. The results of this vote should be known before the hearing on this matter as the results would have relevance.

The Ministry has not advised as to when the vote will be held. Enclosed is a copy of our application.

2. We intend to file charges against the Union and certain of its officers, and in that regard we hereby request that you furnish us with six copies of Form 58. The charges against the Union ought to be heard at the same time the charges against us are heard. There will not be sufficient time between now and July 7, 1983 for us to receive the forms, prepare the charges and for the service of the documents.

3. July 7, 1983 is not a convenient date for us and if the board will not adjourn these charges as requested in 1. herein then we request a delay to at least the first week of August, 1983.

4. We are requesting that the hearing be held at Kenora, Ontario rather than Thunder Bay. We have spent considerable time and money travelling concerning this whole matter.

Thank you for your consideration."

4. When no one had appeared on behalf of the respondents by 10:00 a.m. on July 7, 1983 at the location specified in the Notice of Hearing, the Board, after considering the contents of that letter and the complainant's submissions in opposition to the requests contained in that letter, ruled that neither an adjournment nor a change of venue would be granted, and that the Board would proceed to hear the complaint. Our reasons for that ruling are as follows.

5. The complainant challenges the legality of the respondent employer's "final offer" and requests that the respondents be directed to sign a collective agreement. Thus, contrary to the respondents' contention that the results of the (section 40) vote should be known before the hearing of this matter, it appears to the Board that the results of the hearing of this complaint should be known before any vote is conducted, since the Board's disposition of this case may have a direct bearing on whether or not the respondent employer is entitled to have such a vote taken and, if it is so entitled, on the contents of the "offer" that may legally be placed before the employees for purposes of such vote.

6. With respect to the respondents' second reason for requesting an adjournment, we did not find it to be appropriate to delay the hearing of this complaint in order to permit the respondents to "file charges against the Union and certain of its officers". It was (and is) open to the respondents to file a complaint against the complainant and its officers under section 89 of the Act. If such a complaint is filed, it may form the subject matter of a section 89 hearing by this panel or another panel of the Board. However, the possibility that the respondents may file such a complaint and the desirability of hearing such complaint together with the instant complaint, must be weighed against the prejudice which may result to the complainant if the hearing of the present complaint is delayed. As has long been recognized by this Board and by the Courts, "labour relations delayed are labour relations defeated and denied" (see, for example, the unreported judgment of Estey, C.J.O. (as he then was), dated March 31, 1977, in Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild Local 205, OLRB et al, and the cases cited below). The complainant was certified in September of 1982. The complainant's endeavours to negotiate a collective agreement have already been delayed to some extent by the respondent employer's contravention of section 15 of the Act (as found by another panel of the Board, chaired by the present Vice-Chairman, in a decision dated May 12, 1983, as yet unreported, in File No. 0180-83-U). Further delay can only result in additional prejudice to the legitimate interests of the complainant and the bargaining unit employees whom it represents. Thus, the Board did not find it appropriate to adjourn the hearing of this complaint pending the filing of a section 89 complaint by the respondents.

7. The third reason specified for the requested adjournment is that July 7, 1983 "is not a convenient date" for the respondents. However, the Board does not schedule its proceedings, nor grant adjournments, on the basis of "convenience" to a party. The Board has a discretion to adjourn any hearing, if it considers it advisable in the interests of justice, for such time and to such place and upon such terms as it considers fit (see section 82(1) of the Board's Rules of Procedure; see also section 21 of the Statutory Powers Procedures Act, R.S.O. 1980, c. 484). In exercising this discretion, the Board has adopted a policy which recognizes the great importance of expedition to the efficacious administration of the Labour Relations Act. In Labour Relations Bureau of Ontario General Contractors Association, [1979[ OLRB Rep. 1036, at paragraph 8, the Board stated:

“…The usual practice of the Board is to grant adjournments only on the consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Baycrest Centre of Geriatric Care case, 119761 OLRB Rep. 432, the Board stated at page 433:

5. The Board policy with respect to adjournments has been capsulized in the Nick Masney case [1968[ OLRB Rep. 823 (upheld in the Ontario Court of Appeal, ¶70 CLLC 14, 024) wherein the Board stated:

…the Board's decision to deny the respondent's request for an adjournment was based on the Board's practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because of serious illness ..."'.

The powers of the Board with respect to adjournments were confirmed by the Ontario Divisional Court in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400, at pages 404 and 405:

"Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.

This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Ex p. Nick Masney Hotels Ltd., [1970[ 1970 CanLII 478 (ON CA), 3 O.R. 461, 13 D.L.R. (3d) 289 (C.A.); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of the Statutorv Powers Procedure Act, 1971 (Ont.), c.47, and afford the parties the opportunity to be present and be represented if they wish. by counsel. But a party who has adequate notice o)f the hearing does not have a right to) an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.

It cannot be suggested that the Board may not in the exercise of its discretion adopt a general policy respecting adjournments of its proceedings: see The King v. Port of London Authority. Ex p. Kynoch, Ltd., [1919] I K.B. 176. That policy is obviously necessary to the proper administration of the Board's process

8. The Board also ruled against the respondents' written request that the hearing of this matter be held in Kenora rather than Thunder Bay. While we recognize that travelling from Keewatin to Thunder Bay would involve an expenditure of "time and money" by the respondents, the hearing of this matter in Thunder Bay rather than in Toronto, where most such complaints are heard, substantially reduced those potential expenditures. Two of the persons who appeared on behalf of the complainant at the hearing of this matter travelled to Thunder Bay from Toronto, and would have been put to an additional monetary and time expenditure if the hearing had been scheduled in Kenora. Moreover, the efficient and effective utilization of the resources of the Board. and its responsibility to process this complaint and other matters pending before it as expeditiously as possible, must also be considered. Having regard to all those factors, the Board found it appropriate to hear this matter in Thunder Bay and to deny the respondents' request that the location of the hearing be changed to Kenora.

9. The sole witness who testified before the Board at the hearing of this matter was Ian E. Reilly, a Co-ordinator employed by the United Food & Commercial Workers International Union (the "International"), who had been assigned by the International's Canadian Director to assist the complainant in collective bargaining with the respondent employer. The facts set forth below are based on Mr. Reilly's candid and credible testimony, and the twelve exhibits which he introduced into evidence during the course of his testimony.

10. On September 7, 1982 the complainant was certified as the bargaining agent for "all employees of Northwest Merchants Limited Canada in the Town of Keewatin, Ontario, save and except manager, persons above the rank of manager and secretary book-keeper" by a Board certificate issued pursuant to a decision of another panel of the Board (in File No. 0643-82-R). Thereafter, the complainant served a notice to bargain, and the parties met and bargained concerning non-monetary items.

11. The complainant subsequently filed an application under section 101(1) of the Act for consent to institute a prosecution of the respondent employer for an offence tinder the Act (File No. 2646-82-U), and a complaint under section 89 o)f the Act in which it alleged that the respondent employer had contravened section 15 of the Act. At the hearing of those consolidated matters on May 9, 1983, another panel of the Board, chaired by the present Vice-Chairman, save the following oral decision, which was confirmed in a written decision dated May 12, 1983:

“Having regard to all the evidence and the submissions of the parties, the Board is unanimously of the view that although the respondent has contravened section 15 of the Act by failing to) make every reasonable effort to make a collective agreement, no useful purpose would be served by the Board giving the trade union consent to institute a prosecution in respect of that matter. In reaching this conclusion we have taken into account the fact that the respondent's refusal to table a monetary offer was based at least in part upon the fact that union official Ron Springall told the company representatives that there would be no monetary discussions until all non-monetary contract language was resolved. We have also taken into account the fact that the union never at any time tabled specific monetary proposals for consideration by the company. Nevertheless, we are satisfied that the respondent has breached section 15 by refusing to discuss monetary matters even though the parties were at impasse concerning non-monetary items. It is not the intent of the Labour Relations Act that strike or lock-out action be taken before the parties have discussed all bargaining matters, including monetary items, with a view to avoiding economic sanctions.

Accordingly, the Board, pursuant to) section 89 of the Act, hereby directs:

(I) that the complainant trade union provide the respondent on or before May 16, 1983, with a full written statement of its current position with respect to all outstanding items, including specific monetary proposals, and with a written statement of all items which have been tentatively resolved;

(2) that the respondent provide the complainant with a written response to those proposals on or before May 23, 1983; and

(3) that the parties thereafter return to the bargaining table forthwith with the assistance of a Ministry of Labour mediator, and bargain in good faith and make every reasonable effort to make a collective agreement."

12. Pursuant to that direction, on May 10, 1983 Mr. Reilly sent a proposed collective agreement to the respondent employer by registered mail. That document included items to which the parties had already agreed (which were "highlighted in pink"), items previously proposed by the respondent employer to which the complainant was thereby agreeing (which were "highlighted in blue"), and the following six items which remained in dispute: Article 2.01 (the recognition clause, which the complainant maintained should describe the bargaining unit in the same manner in which it was described by the Board in its certification decision dated September 7, 1982 and in the certificate issued pursuant to that decision), Article 5.02 (the "normal hours of work"), Article 6.01 (overtime rates of pay), Articles 15.02 and 15.03 (seniority), Article 21.01 (a proposal by the complainant that the respondent employer provide a weekly indemnity plan for employees), and Appendix "A" (a proposal by the complainant that the "present wage scale" be increased by 30¢ per hour and that the respondent employer pay 100% of the cost of O.H.I.P.). One of the items "highlighted in pink" was Article 4 which provided as follows:

"ARTICLE 4

DEDUCTION OF UNION DUES

4.01 Pursuant to Section 43 of the Labour Relations Act the Company agrees to deduct from the wages of each employee in the bargaining unit, except probationary employees, the amount of regular monthly union dues and to remit the amount so deducted to the Union.

4.02 The amount of union dues shall be as authorized by regular and proper vote of the membership of the bargaining unit, of the local Union. Monies so deducted will be transmitted to the designated official of the Union.

4.03 The Company agrees to list on the Dues Deduction Sheet, all employees who have terminated their employment and new hires."

13. The respondent employer replied to that document by registered letter dated May 20, 1983 to M. Grossman, the Ministry of Labour mediator appointed to assist the parties in accordance with the Board's direction. The respondent employer also sent a copy of that letter to Mr. Reilly, who received it on May 24, 1983. Apart from noting that the "front cover" for the collective agreement which had been "signed off by the parties" listed the respondent employer first rather than the complainant, that letter did not dispute the accuracy of any of the detailed information contained in the (May 10, 1983) documentation provided by the complainant concerning the items "which had already been agreed to", including Article 4 (deduction of union dues) as set forth above. That letter specified the respondent employer's position concerning the aforementioned six items which were then outstanding, and "a proposed Appendix "B", submitted by the Company", which was also outstanding.

14. The recognition clause proposed by the respondent employer prior to that letter was:

"2.01 The Company recognizes the Union as the bargaining agent for all its employees in the Town of Keewatin, Ontario, save and except for Managers, (STORE MANAGER, GROCERY MANAGER, MEAT MANAGER, AND GIFT SHOP MANAGER) persons above the rank of Managers and Secretary Bookkeeper, AND PERSONS UNDER 18 YEARS OF AGE:'

In the respondent employer's revised proposal on that item (attached to its letter of May 20, 1983) the words "AND PERSONS UNDER 18 YEARS OF AGE" were deleted and the following words were substituted in their place: "and students". Also attached to that letter were the respondent employer's proposals concerning Articles 5.02, 6.01, 15.02, 21.01. Appendix "A'. and Appendix "B". The latter Appendix provided as follows:

“SPECIAL PROVISION

IT IS UNDERSTOOD AND AGREED THAT THIS

AGREEMENT DOES NOT APPLY TO ALEX DYCK,

OR TO ANY PERSON HIRED SUBSEQUENTLY TO

DO THE_WORK OF THE KIND OR NATURE

PRESENTLY BEING DONE BY MR. DYCK.

DATED THIS…..DAY OF….1983."

With respect to Article 15.03 the respondent employer's letter of May 20th indicated that it "can be considered as resolved" since "the Company is prepared to accept the proposal of the Union".

15. On May 25, 1983, Mr. Reilly sent the following letter to the respondent employer by registered mail:

"I am in receipt of your letter to Mr. M. Grossman, dated May 20, 1983.

Upon reading Appendix 'A', A.5, I note that you wish to make certain no one suffers a wage reduction. I couldn't agree more, however, since I do not have the present wages paid to employees, I would hereby request that a list of job [sic I and employees and the hourly rates now paid them be provided upon the commencement of talks on June 6th, in order that I may intelligently bargain with you.

16. The parties subsequently agreed to meet in Kenora on June 6, 1983 with the assistance of a mediator. That meeting was held in the evening at the request of the respondents, in order to permit them to attend to their business during the day. In attendance at that meeting were Mr. Reilly and Michael Fraser for the complainant, Mr. and Mrs. Kowbel (the individual respondents) for the respondent employer, and mediator Robert Pryor (replacing Mr. Grossman, who was unavailable that evening). At that meeting Mr. Kowbel refused to provide Mr. Reilly with the information which the latter had requested in his letter of May 25, 1982, and also refused to inform Mr. Reilly of the respondent employer's "existing practice" concerning sick leave. The reason given by Mr. Kowbel for those refusals was that the employer was not obliged to give anything to the union unless it was specifically required to do so by the Labour Relations Act. Mr. Kowbel remained unmoved by Mr. Reilly's assertion that Board decisions require an employer to provide such information pursuant to section 15 of the Act.

17. The section 15 bargaining duty includes an obligation that the employer provide information of the type requested by Mr. Reilly on behalf of the complainant. As stated by the Board in De Vilbiss (Canada) Limited, 11976) OLRB Rep. March 49, at paragraph 15, one of the principal junctions of the duty described in section 15 of the Act is "to foster rational, informed discussion". In that case the complainant trade union asked, at its first bargaining session with the employer, to be provided with the existing wage rates and classifications of the bargaining unit employees. In finding the employer's refusal to provide that information to be a breach of what is now section 15 of the Act, the Board wrote (at paragraph 16:

“…Of additional concern is the respondent's failure to respond to the complainant's request at this first meeting for existing wage and classification information. Particularly in 'first agreement' situations, it is little wonder that a complainant would have an incomplete monetary demand until it fully appreciated the current rate of wages paid by a respondent and the detailed nature of its job structure. Rational and informed discussion cannot easily take place until this information is provided to a trade union and thus this aspect of the duty supports its production. As a general matter of policy, if parties are to engage in economic conflict their differences ought to be real and well-defined. It is patently silly to have a trade union 'in the dark' with respect to the fairness of an employer's offer because it has insufficient information to appreciate fully the offers significance to those in the bargaining unit. Moreover, a trade union has a duty to all of the employees in the bargaining unit and thus has to be concerned, in a large measure, with equality of treatment. (For the American experience in this area see J. H. Allison & Co (1946) 70 NLRB 377: Whittin Machine Works (1954), 217 F. 2d 593 (4th Cir.); Yannian & Erbe Manufacturing Co. (1951 181 F. 2d (2nd Cir.); Truitt Manufacturing Co. (1954) 110 NLRB 856; and see generally Bortosic and Hartley, [The Employer’s Duty to Supply Information to the Union: A Study of lnterplay and Judicial Rationalization (1972), 58 Cornell L. Rev. 23]. Further, in the facts at hand, we have no doubt, when the totality of the respondent's conduct is considered, that the 'bad faith' aspect of the duty also effectively characterizes the respondent's failure in this regard. But, as noted above, a finding of bad faith is not a prerequisite to a finding that section 14 [now section 15] has been violated."

See also Globe Spring & Cushion Co. Ltd., 11982) OLRB Rep. Sept. 1303. Thus, we find that the respondent employer contravened section 15 of the Act by failing to provide the requested information to the complainant.

18. Notwithstanding the respondent employer's failure to provide the aforementioned information to which the complainant was legally entitled. Mr. Reilly. to the obvious surprise of Mr. and Mrs. Kowbel, proceeded to accept (on behalf of the complainant) the respondent employer's proposals concerning Articles 5.02, 6.01, and 15.02. Although the complainant's representatives were not totally satisfied with those proposals, they accepted them because they were of the view that they “wouldn’t get anything better", and because they hoped to negotiate improvements during the next round of collective bargaining after the parties had "lived together" for a year under their first collective agreement. Thus, the only items which remained in dispute between the parties at that time were Article 2.01 (the recognition clause), Article 21.01 ("weekly indemnity). Appendix "A", and Appendix "B".

19. The mediator then asked the union representatives to leave the room while he met privately with the respondents. Thereafter, at approximately 7:20 p.m., he brought the complainant the following offers from the respondent employer (which were referred to by Mr. Reilly as the employer offer of "19:2 1 hours"):

“OFFER” I

2.01 The Company recognizes the Union as the bargaining agent for all its employees in the Town of Keewatin. Ontario save and except for Managers. (STORE MANAGER, OR GROCERY MANAGER, OR MEAT MANAGER, OR GIFT SHOP MANAGER) persons above the rank of Managers and Secretary Bookkeeper, AND PERSONS UNDE 18 YEARS OF AGE.

2.02 It is agreed that in addition to the Store Manager not more than one Manager is excluded from the bargaining unit.

2.03 In this collective agreement, the use of masculine terms shall also include the feminine and vice-versa unless otherwise indicated by the contract."

20. That offer was accompanied by an alternative offer ("Offer II") by which the respondent employer offered to delete the proposed exclusion from the bargaining unit of persons under 18 years of age", with the balance of Articles 2.01. 2.02 and 2.03 remaining as in "Offer I", but with an amendment to Article 4.01. The proposed amendment to that article was set forth in the following "Note" which formed part of "Offer II":

"If this alternative is acceptable then the previously agree sic! article 4.01 must be ammended [sic to read as follows:

4.01 Pursuant to Section 43 of the Labour Relations Act the company agrees to deduct from the wages of each employee in the bargaining unit, except probationary employees, and students as defined in the Employment Standard Act Regulations, the amount of regular monthly dues and to remit the amount so deducted to the Union.

Thus, each of the two alternative offers proposed the exclusion of an additional "Manager" from the bargaining unit for which the complainant had been certified. "Offer I" also proposed the exclusion of "persons under eighteen years of age". Although the latter persons were included in the bargaining unit proposed in "Offer II", under that offer no union dues would be deducted from the wages of "students", despite the fact that they would be included in the bargaining unit, and despite the fact that the parties had already reached agreement on Article 4.01 in a form which excluded only "probationary employees" from its coverage.

21. Each of those alternative offers also included a revised Appendix "A" in which the (Article A.I) wage rates specified for full-time employees "after two to three years", and "after three years", and for part-time employees "after 2080 working hours to 4160 working hours" had been increased by 25¢ (above the rates specified for those persons on the "progression scales" contained in Appendix "A" attached to the respondent employer's letter of May 20, 1983). The (Article A.2) wage rate specified for part-time employees "after 4160 to 6240 working hours" was increased by 35¢, and a new wage rate (of $5.50 per hour) for part-time employees "after 6420 working hours" was added. (In the respondent employer's May 20, 1983 Appendix "A" proposal, the highest rate in the part-time employee "progression scale" was" 4.40 per hour", payable after 4160 working hours".) That Appendix also proposed the following three articles:

"A.3 Notwithstanding the minimum hourly rates set forth herein, a student as referred to in the Regulations under the Employment Standards Act may be paid the minimum wage rate set out in the said Regulations for students.

A.4 For the purpose of determining working hours for the purposes of this appendix only, paid holidays (Article 7) and Vacations (Article 10) shall be considered to be working hours.

A.5 No employee currently on staff shall suffer an hourly wage rate reduction as a result of the implementation of this Appendix 'A'."

22. The complainant's written reply to those offers was as follows:

"2.01 It is the union position that the O.L.R.B. certificate bargaining unit as set out therein is our position except that we will agree to the exclusion of Alex Dyck and the person subsequently hired to replace him.

21.01 The employer will provide 1 sick day with pay per month to all employees who have at least 3 months service. All unused sick days will be cashed in at 50% of value on Dec 22nd of each year.

Appendix 'A'

(a) All rates in the company proposal of June 6/83 19:21 hours shall be increased by 15 cents in each case.

(b) All present employees shall receive 20¢ per hour increase over their present wage or the new wage rate, whichever is greater, on the day of signing.

(c) The parties hereto agree that students employed during the school vacation periods shall be paid in accordance with the minimum standards act, not withstanding [sic] the terms of this agreement.

(d) The parties hereto agee [sic] that a part time employee is one working 24 hours per week or less."

Mr. Pryor took that offer to the respondents. While they were reviewing it, Mr. Reilly put together (and signed on behalf of the complainant) a document which included all the language to which the parties had thus far agreed, and which also indicated that the complainant had dropped its sick pay proposal (Article 21.01) and confirmed that the complainant was no longer proposing that the respondent employer pay the cost of O.H.I.P. coverage for employees. Through that document, the complainant also accepted the wage rates proposed by the respondent employer in Articles A.1 and A.2 of Appendix "A" to its offer of "19.21 hours", and further accepted Articles A.4 and A.5 of that proposal. With respect to Article A.3, the complainant proposed the following:

"The parties hereto agree that students employed during the school vacation periods shall be paid in accordance with the minimum standards act, notwithstanding the terms of this agreement."

The complainant further proposed that the following clause be added to Appendix "A":

"The parties hereto agree that a part-time employee is one working

(24) twenty-four hours per week or less."

23. That comprehensive collective agreement proposal was then taken to the respondents by Mr. Pryor, who returned fifteen or twenty minutes later with the following "final offer from the respondent employer:

"Article 4

Deduction of Union Dues

4.01 Pursuant to Section 43 of the Labour Relations Act the Company agrees to deduct from the wages of each employee in the bargaining unit, except probationary employees the amount of regular monthly union clues & to remit the amount so deducted to the union.

It is further agreed that part time employees who customarily work 24 hours a week or less, and students as defined by the employment standards Regulations shall not have Union Dues deducted from their wages.

1. Article 2.01 as per certificate

2. Wage proposal - as proposed June 6

3. Exclusion of Alex Dick [sic]

4 Must be taken to Our membership for Ratification."

Mr. Reilly was very upset by that proposal since it confirmed the respondent employer's intention to attempt to renege on the language to which the parties had already agreed in respect of Article 4.01. It also purported to impose a requirement that the respondent employer's offer be taken to the union membership for ratification. In the circumstances of this case, it is reasonable to infer that the respondents added that requirement in an attempt to) avoid entering into a collective agreement with the complainant when it became apparent that Mr. Reilly had been given the authority to enter into a collective agreement on behalf of the complainant and was ready, willing, and able to do so that very evening.

24. After arranging to have Mr. Pryor bring to the complainants representatives that "final offer" together with an announcement of their intention to apply for an employee vote under section 40 of the Act. Mr. and Mrs. Kowbel left the premises without giving the complainant any opportunity to discuss that offer with them. or to accept or otherwise respond to it.

25. By registered letter dated June 7, 1983 the respondent employer confirmed the ”request made at the time [its] final offer was made, which was to the effect that a vote of [its] employees be taken as to their acceptance or rejection of the total first collective agreement.

26. The complainant subsequently filed the present complaint, and the respondent employer requested the Minister to direct that an employee vote be taken pursuant to section 40(1) of the Labour Relations Act, which provides:

"Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of such employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on such terms as he considers necessary direct that a vote of such employees to accept or reject the offer be held and thereafter no further such request shall be made."

27. When the complainant became aware that the respondent employer had applied for a section 40 vote, it sent the following telegram to the Minister:

"The employer's final offer is in violation of the Ontario Labour Relations Act and charges have been filed with the Board under Section 89 thereof.

A hearing has been scheduled for July 7, 1983 in this matter.

There is no strike pending or anticipated as the Union has already signed an agreement that is legal and the response to that document, which was put forward through your mediator, Robert Prior [sic], was the Company's illegal final offer.

It is our request that no vote be taken as the union has signed a collective agreement, but the company had failed to sign and further that the matter be laid over until after the Section 89 hearing on File No. 0508-83-U."

28. From the foregoing findings of fact, it is apparent that the respondent employer, through the acts and omissions of the individual respondents, has engaged in a series of substantial contraventions of section 15 of the Act. In addition to their refusal to discuss monetary matters, which led to an earlier finding of a section 15 violation (and the Board order quoted above), the respondents have refused to provide the complainant with information concerning existing hourly rates and employee benefits, have reneged without explanation or justification on their earlier agreement concerning the language of Article 4.01: have pressed to) the point of impasse a demand that the complainant accept a dues check-oft provision less encompassing than that to which it is entitled under section 43 of the Act, have purported to attach to their "final offer" a requirement that the complainant submit that offer to the employees for ratification, and have broken off negotiations and applied for a section 40 vote without giving the complainant an opportunity to discuss that "final offer with them and to accept or otherwise respond to it.

29. It was not improper for the respondent employer to request during the course of collective bargaining a recognition clause less extensive than the certificate granted to the complainant by the Board. Thus, it was open to the parties to agree (as they have clone) to the exclusion of "Alex Dyck and his replacement who may be subsequently hired". The question of recognition, or an extension or diminution of recognition, is a permissible subject for negotiations between a union and an employer. However, while such issues can be raised and discussed during bargaining, they cannot be pressed to an impasse. or become the focus of a test of economic strength. See, for example. (Cybermedix Limited, [1981 OLRB Rep. Jan. 13, and United Brotherhood of Carpenters and Joiners of America, [1978] OLRB Rep. Aug. 776. Similarly, in Toronto Star Newspaper, [1979] OLRB Rep. Aug. 811, the Board ruled that it would not be consistent with the overall scheme of the Act to take a demand for work assignment, which could form the subject matter of a section 91 complaint, to a bargaining impasse.

30. We are of the view that similar principles apply to section 43 of the Act, which provides:

“43(1) Except in the construction industry and subject to section 47 where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union clues and to remit the amount to the trade union, forthwith.

(2) In subsection ) (I), 'regular union dues' means,

(a) in the case of an employee who is a member of the trade union, the dues uniformly and regularly paid by a member of the trade union in accordance with the constitution and by-laws of the trade union: and

(b) in the case of an employee who is not a member of the trade union, the dues referred to in clause (a), excluding any amount in respect of pension, superannuation, sickness insurance or any other benefit available only to members of the trade union."

The purpose and effect of that provision was considered by the Board in K Mart Canada Limited, [19821 OLRB Rep. June 903. In that case, the employer remitted a "lump sum" to the union but refused to identify the employees for whom the dues were being deducted. In finding the employer to be in breach of the collective bargaining obligation required to be in its collective agreement by section 43, the Board wrote:

"10. Both the old section 36a and its amended version in section 43, deal with the question of 'union security'. There is perhaps no single issue which has contributed more to industrial conflict in this province — especially in first contract situations where the union may be seeking to establish its legitimacy in the face of employer opposition. Once certified, unions typically insist on a “check-off” of dues from all employees as the natural concomitant of their statutory obligation to represent members and non-members alike (see section 68), and as the only means of financial support for the representational activities which benefit all employees. But not infrequently, employer resistance on this issue has resulted in a strike. Sometimes this opposition is merely a manifestation of loyalty to non-member employees; but sometimes, it has been part and parcel of an employer refusal to recognize the union, despite its certification, or an element in a general pattern of unfair labour practices designed to undermine the union's position. (See for example: Radio Shack [1979] OLRB Rep. Dec. 1220; Fotomat [1980] OLRB Rep. Oct. 1397; Wilson Automotive [1980] OLRB Rep. July 1136, [1980] OLRB Rep. Sept. 1337; Fleck Manufacturing Company [1978] OLRB Rep. July 615). These cases may be atypical, however, even when the employer's opposition is legitimate, (see: Cross Tube Products Inc., [1980] OLRB Rep. May 669), there is little doubt that the effort to attain union security has been a key factor in a number of protracted, difficult and often ugly disputes which have marked the collective bargaining scene in recent years. Indeed, in 1975, the 'checkoff' was the principal issue in dispute between the parties herein, leading to a six month strike, and it might have precipitated a strike in 1980, when the union was certified for a second time, if the legislation had not removed that item from the bargaining table. See: K Mart Canada Limited, supra). The recognition that the union security issue was a flash point in the bargaining process is what prompted the Legislature to enact the succession of amendments mentioned above. And until the instant case arose, it was widely thought that a demand for the 'checkoff' could no longer be the basis for a strike in this jurisdiction.

11. The question raised by this complaint then, is the extent to which the union security issue in the form of a statutory 'checkoff', has been removed from the bargaining table. Does the union have a right to know specifically the identity of the employees in the bargaining unit it represents, and whether dues have been properly remitted on behalf of those specific individuals'? Or is the right to this information a bargaining issue for which the union must ultimately strike if the employer is not prepared to provide it? If the principle of the checkoff has now been given statutory recognition and underpinning, must the union still strike to achieve a formula that is workable from an administrative point of view. In other words, is the 'checkoff' a 'live' bargaining issue and a potential source of industrial conflict despite section 43—for it must be remembered that although the bargaining unit is relatively small in this case, the principle flowing from it would be equally applicable in a much larger bargaining unit where there would be no effective means of verification.

12. There is no legitimate employer interest in masking the identity of its employees, and it is a little difficult to appreciate why the Legislature would choose the formula which the respondent's interpretation involves. If anything, it is the union which has a legitimate interest in obtaining such information because of sections 43 and 68 of the Act, and its statutory role as the employees' bargaining agent. The dues deducted do not 'belong' to the employer. It is merely the agent for the union for the purpose of collection. Thus, we do not find particularly compelling the employer's submission that the information the union seeks is a matter for collective bargaining. On the contrary, in our opinion, the acceptance of this position would put back on the bargaining table the very kind of inflammatory issue which section 43 was designed to resolve—with obvious detriment to the orderly process of collective bargaining which the amendment was intended to promote. This Board does not lightly contemplate an interpretation of the Act that would once again see strikes in Ontario on the issue of union security—not for the principle of a checkoff, for that was clearly established by section 43 but this time for a formula that would make section 43 workable. In our view, such an interpretation of section 43 flies in the face of its obvious intent, and we should not embrace it in the absence of clear and compelling statutory language."

13. Once a union that is the bargaining agent for employees in a (non-construction industry) bargaining unit requests the inclusion in a collective agreement of a section 43 dues deduction provision, that section requires the employer to include such provision in the agreement. A union can, of course, refrain from requesting such a provision. Moreover, it can agree to a provision which is less comprehensive in scope than the clause for which section 43 provides. Thus, it was open to the complainant to agree (as it did before the employer purported to renegeon such agreement) to a check-off clause which excepted from its scope "probationary employees", even though such employees were included in the certificate and in each of the various recognition clauses proposed by the complainant or the respondents during the course of collective bargaining. However, while it may be permissible for an employer to propose a check-off provision which is less comprehensive than that contemplated by section 43, such proposal cannot be pressed to an impasse. or become the focus of a test of economic strength. Therefore, we are of the view that, unless it has been agreed to by the union, such proposal cannot be included in "the offer of the employer" which is placed before the employees in a section 40 vote, as by placing that issue before the employees, the employer would be pressing the issue to an impasse, contrary to section 15 of the Act. Therefore, by applying for a section 40 vote in respect of an offer which included a nonconsensual proposal to exclude "part-time employees" and "students" from the scope of the union dues deduction clause (Article 4.01), the respondent employer contravened section 15 of the Act in the circumstances of this case.

14. The respondent employer also contravened section 15 of the Act in respect of Article 4.01 when it reneged on the language to which it had earlier agreed in respect of that provision, by subsequently proposing additional exclusions and seeking to have employees vote on a check-off clause which was not in conformity with the language to which it had earlier agreed. The fact that a party modifies a bargaining position or withdraws an offer previously made does not constitute a "per se" violation of section 15. As noted by the Board in Cybermedix Limited, supra, at paragraph 18:

…Reneging' has also been considered in a number of Board decisions: but the fact that one party modifies a bargaining position or withdraws an offer previously made has never been sufficient, in itself, to constitute a 'per se' violation of section 14. As the Board noted in Pine Ridge District Health Unit [1977] OLRB Rep. Feb. 65, collective bargaining is a dynamic process which:

…occurs over an extended period of time against a fluid backdrop of events. A party may thus come to reshape its views of its own best interests from one point in time to another, and so wish to change its position at the bargaining table.'

The passage of time, changes in economic circumstances, or shifts in the balance of bargaining power can influence one party or the other to reevaluate its position, or insist on concessions not previously sought. Such changes in bargaining posture cannot be automatically equated with bad faith bargaining-although in some cases. of course, an employer's sudden and inexplicable inflexibility, or a radical change in bargaining stance may provide strong evidence of bad faith bargaining, or support an inference that it is engaging in 'surface bargaining' and has no real intention of concluding a collective agreement....”

Having regard to all of the circumstances, including the fact that the respondent employer did not provide during the course of bargaining, or at the hearing of this matter, any explanation for reneging on the language of Article 4.02 to) which it had earlier agreed, the Board finds that it thereby contravened section 15 of the circumstances of this case.

33. It is well established in the Board's jurisprudence that an employer cannot legally insist on employee ratification of collective agreement proposals (except to the extent that section 40 of the Act permits an employer to have his last offer put before the employees in the bargaining unit for acceptance or rejection, as discussed later in this decision). The labour relations rationale for this conclusion is set forth in the following passage from Treco Machine & Tool Limited, [1982] OLRB Rep. Dec. 1954, in which the respondent employer proposed the inclusion in a collective agreement of an article which stipulated that the "total bargaining unit" would "participate in the ratification of the collective agreement":

"12. Our determination in this matter begins with a discussion of the purpose and legal effect of certification under the Labour Relations Act. Trade unions are not permitted to strike in an attempt to secure recognition. Rather, the Act, in furtherance of the purpose of encouraging the practice and procedure of collective bargaining contains an elaborate statutory scheme for the selection by employees of a bargaining agent of their choice. This scheme is based on an application of the majority principle. The Board is given the authority under the Act to determine trade union status, to determine the appropriate bargaining unit on a case by case basis and to determine if a trade union has the support of a majority of those in the bargaining unit. Majority support is determined by means of a secret ballot vote by those within the bargaining unit, as in this case, or, as is more often the case, on the basis of the signed evidence of membership of those within the unit submitted by the union in support of its application. If the Board is satisfied that the applicant is a trade union within the meaning of the Act and that it has the support of a majority of those within the unit, it is certified by the Board as the exclusive bargaining agent for all of the employees in the bargaining unit. The certificate thus issued alters the legal relationship between the employer and the employees in the bargaining unit. The employer is no longer permitted to deal with the employees in the bargaining unit on an individual basis but must deal with the trade union as the certified bargaining agent of all of the employees in the unit.

13. The exclusivity of the union's bargaining rights, as conferred by a Board certificate, and the requirement upon the employer to deal with the union, as the certified bargaining agent, and not to go behind the certificate, has received extensive judicial support. [Quotations from the Supreme Court of Canada decisions in Re Syndicat Catholique des Employes de Magasins de Quebec' Inc'. v. Compagnie Paquet Ltee (1959) 1959 CanLII 51 (SCC), S.C.R. 206, 18 D.L.R. (2d) 346, and McGavin Toastmaster Ltd. v. . Ainscough 1975 CanLII 9 (SCC), [1976] S.C.R. 718, [1975] 5 W.W.R. 444, 75 CLLC ¶14,277, 54 D.L.R. (3d) I have been omitted.

(See also Winnipeg Police Association and City of Winnipeg 1979 CanLII 391 (BC SC), [1979] 4, W.W.R. 193.)

14. This Board has dealt with a number of cases in which it has found that an employer's attempt to require employee ratification of an offer of settlement acceptable to the union constitutes an attempt to repudiate the union as exclusive bargaining agent and hence is in breach of the Act. In Wilson Automotive, supra, the employer requested a section 34(e) vote (now section 40) on an offer which the union had already signed and returned to the company for execution. In response the union filed a section 14 (now 15) complaint alleging that by requesting a section 34(e) vote in the circumstances the employer had bargained in bad faith. In upholding the complaint the Board found that:

'By refusing to accept the union's execution of the collective agreement and insisting on a ratification vote among all of the employees, the respondent has in fact refused to recognize the union as the body with the exclusive authority to make a collective agreement…

The union's bargaining rights therefore continue in full force and effect. Whatever reservations the employer may have, it is not entitled to doubt or deny these rights at the bargaining table.

By not making a better offer and then insisting on a ratification vote of all employees, the employer would set the stage for a plebiscite calculated to undermine the union. The most plausible inference to be drawn from the employer's conduct is that it wants the vote on its offer among the employees to be a vote of non-confidence in the union so overwhelming as to effectively terminate the union's bargaining ability, if not its bargaining rights.'

In Selinger Wood Limited, [1980] OLRB Rep. Nov. 1688, the Board found that the employer's refusal to execute a collective agreement which it believed had not been properly ratified violated section 14 of the Act. Finally in Fotomat Canada Limited, supra, the employer, as part of a final offer, included a clause requiring employee ratification of its offer. However, the trade union accepted the offer. The employer in turn took the position that 'ratification is a necessary and required prerequisite to the proper execution of the collective agreement in question.' The Board, in finding that the employer had breached the then sections 14, 46 and 58, stated:

'13. Part IV of the respondent's proposal is a clear attempt to reach around the exclusive bargaining agent and deal directly with bargaining unit employees. This is its obvious effect. Such conduct violates sections 14, 56 and 58 of The Labour Relations Act. As the United States Supreme Court held in NLRJJ v. Borg- Warner Crop. (1958), 356 U.S. 342, 42 LRRM 2034 at 2037 (per Barton J.), this type of proposal 'substantially modifies the collective bargaining system provided for in the statute by weakening the independence of the 'representative' chosen by the employees. It enables the employer, in effect, to deal with its employees rather than with statutory representative.'

16. We also find that the ratification proposal is not a proper subject of collective bargaining negotiations and the respondent’s insistence on this aspect of its proposal contravened sections 56 and 14. Employees ratification is an internal trade union affair. There is no statutory requirement that such procedures be adopted, although the good sense lying behind the concept of ratification has been commented on by this Board in the past and is well understood in the industrial relations community....

17. Finally, we find that the respondent's purpose in proposing Part IV was to provide the bargaining unit employees with an opportunity to reject or accept the complainant trade union and not the proposed contract. It is simply non-sensical for an employer to request such a procedure when the bargaining agent has already expressed its intention to accept the contract. What is the more likely reason for insisting on employee ratification in such circumstances'?

Is the employer genuinely concerned that the contract is not sufficiently attractive or 'rich' to be acceptable to the employees'?'

(emphasis added)"

As indicated earlier in this decision, we are satisfied that the respondents added to their proposals a demand that they be taken to the membership for ratification in order to avoid entering into a collective agreement with the complainant when it became apparent to them that Mr. Reilly had been given the authority to enter into a collective agreement on behalf of the complainant and was ready, willing and able to do so at the mediation session on June 6, 1983. Thus, by including in its "final offer" a demand that the offer "be taken to [the complainant's] membership for ratification", the respondent employer further contravened section 15 of the Act in the circumstances of this case.

34. Section 40 permits an employer to put his last offer before the employees in the bargaining unit, but this can be done only once and cannot be used as a means of avoiding the section 15 duty to bargain in good faith and make every reasonable effort to make a collective agreement. (See Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583, for a discussion of the "inevitable inter-relation" of sections 15 and 40.) In the instant case, the respondents arranged to have the mediator deliver their "final offer" to the complainant's representatives, together with an announcement of their intention to apply for a section 40 vote. The respondents then left the premises without giving the complainant any opportunity whatever to discuss that offer with them, or to accept or otherwise reject it. As noted above, one of the principal functions of section 15 is to foster rational, informed discussion between the parties with a view to avoiding unnecessary resort to economic sanctions. The employer has an ongoing duty under section 15 regardless of section 40 (see Canada Cement Lafarge Ltd., supra, at paragraph 23). How can it be said that an employer is bargaining in good faith and making every reasonable effort to make a collective agreement when it breaks off negotiations and applies for a section 40 vote without giving the union an opportunity to discuss the final offer with the employer, and to accept or otherwise respond to it? It is implicit in section 40, read in the context of the Act as a whole, that the union must be given an opportunity to consider, discuss, and respond to "the offer of the employer last received". If the union found such offer to be acceptable, then there would no longer be any "matters remaining in dispute between the parties" and, accordingly, no vote would be required, or available, under section 40. By terminating its negotiations with the complainant and applying for a section 40 vote before affording the complainant any such opportunity, the respondent employer further demonstrated its lack of good faith and its failure to make every reasonable effort to make a collective agreement. Thus, we find that the respondent employer contravened section 15 of the Act by applying for a section 40 vote in the manner in which it did in the circumstances of this case.

35. Had the respondent employer given the complainant an opportunity to consider, discuss, and respond to its "final offer", the complainant would have accepted all of the items included in that proposal except the two items which we have found to be incapable of being legally pressed to impasse, namely, the respondent employer's "revised" check-off proposal, and its demand that the package be taken to the membership for ratification. Moreover, the complainant's acceptance of those items would have been communicated to the respondents at the (June 6, 1983) mediation meeting if they had not prematurely departed from that meeting without giving the complainant any such opportunity. At the hearing of this matter, Mr. Reilly confirmed in his sworn testimony that, with the exception of those two "illegal" items, the respondent employer's "final offer" is acceptable to the complainant, which is prepared to enter into a collective agreement with the respondent employer on those terms, together with the other items previously agreed upon by the parties. Moreover, the complainant contends that this is an appropriate case in which to direct the respondents to execute such collective agreement. In Treco Machine & Tool Limited, supra, the Board reviewed the approach which it has adopted in that regard as follows:

"18. The Board has been asked to direct the employer to enter into a collective agreement. The Board has consistently recognized that the principle of voluntarism underpins the collective bargaining process established under the Act and has, therefore refused to direct the execution of a collective agreement where there is not a complete understanding between the parties. In the absence of a complete understanding, the Board would be required to impose terms if it was to direct that a collective agreement be executed and this it has refused to do. (See Lake Ontario Steel Company Limited, [19791 OLRB Rep. July 671, The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309, Graphic Centre (Oct.) Inc., [1976] OLRB Rep. May 221. However, where the evidence establishes that all outstanding issues between the parties have been resolved, the Board has not hesitated to direct the execution of a collective agreement in the exercise of its remedial authority. (See Coulter Copper & Brass Limited, [1981] OLRB Rep. May 519, Fotomat Canada Limited, supra, Wilson Automotive, supra, Selinger Wood, supra and Municipality of Casimir Jennings and Appleby, supra.)"

In the Treco case, the Board directed the employer to execute a collective agreement which contained all of the language to which the parties had agreed "exclusive of the unlawful ratification clause". By analogy, we find it appropriate in the present circumstances to direct the respondent employer to forthwith prepare, execute, and forward to Mr. Reilly for execution by the complainant, a collective agreement which embodies all of the language to which the parties agreed at or before the June 6, 1983 collective bargaining session (including Article 4.02 in the form earlier agreed upon by the parties) and the further provisions proposed by the respondent employer in its "final offer" which the complainant has found to be acceptable, with the exception of the two items which, for the reasons set forth above, cannot lawfully be pressed to impasse by the respondent employer. We are satisfied that, but for the respondent employer's contraventions of section 15 of the Act, a (one year) collective agreement would have been signed on June 6, 1983 at the aforementioned meeting. Accordingly, we hereby further direct that the collective agreement be made effective from that date, and that the terms and conditions contained therein by applied to the employees in the bargaining unit forthwith.

36. In order to inform bargaining unit employees of the disposition of this case, and to provide them with an assurance that in the future the respondents will abide by the requirements of the Labour Relations Act, we further direct that the respondent employer post copies of the attached notice marked "Appendix", after being duly signed by an authorized representative of the respondent, in conspicuous places on its premises where it is likely to come to the attention of the employees, and keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent employer to ensure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent employer to a representative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.

37. As indicated above, the Board has found that, with the exception of the two aforementioned items which cannot legally be pressed to impasse by the respondent employer, there were no "matters remaining in dispute between the parties" at the time that the respondent employer requested a section 40 vote. Moreover, we have found that the respondent employer contravened section 15 of the Act by applying for a section 40 vote in the circumstances of this case. Accordingly, the respondent is not entitled to have such a vote taken. For a discussion of the purpose and scope of section 40, see Wilson Automotive (Belleville) Ltd., [19801 OLRB Rep. Sept. 1337, at paragraphs 9 -16. In that decision the Board held that where there are no matters remaining in dispute between the parties, the employer has no right to request a vote under section 40:

"15. Since the purpose of section 34e [now section 40j is to minimize unnecessary conflict, it is not surprising that the condition precedent to its operation is the appearance of conflict between the parties as to the terms of the collective agreement that they are in the course of bargaining. That is clear from the words of the section:

…the employer ... may request that a vote be taken as to the acceptance or rejection of the offer of the employer ... in respect of all matters remaining in dispute between the parties…[emphasis added]

16. In the instant case the employer has requested that a vote be taken where there are no matters remaining in dispute between the parties. The employer and the union are agreed on each and every term of the collective agreement. In these circumstances the Board must conclude that the employer is not relying on any right which it has under the Act when it grounds its refusal to sign the agreement of the fact that it awaits the taking of a vote of the employees by the Minister under section 34e of the Act...."

Furthermore, since the respondent employer's compliance with the Board's order in this matter will result in a collective agreement between the complainant and the respondent employer (effective June 6, 1983) irrespective of the outcome of any vote taken under section 40, no useful purpose would be served by conducting such a vote in the circumstances of this case.

38. The Board remains seized of this matter in the event that any dispute arises concerning the interpretation or implementation of our order.