Burns Meats Ltd. v. United Food and Commercial Workers International Union, 1984 CanLII 1005

Ontario Labour Relations Board

File No.: 0921-84-U Date: 1984-08-21

Re: Burns Meats Ltd., Complainant And: United Food and Commercial Workers International Union and the United Food and Commercial Workers International Union, Local 139, Respondents

Before: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and B. L. Armstrong.

Appearances: D. Churchill-Smith, Q. C. and J. A. Roffey for the complainant M. Levinson, B. Fishbein, F. Benn and S. Szuba for the respondents.

DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN, AND BOARD MEMBER W. H. WIGHTMAN; August 21, 1984

1. This is a complaint filed under section 89 of the Labour Relations Act in which the complainant Burns Meats Ltd. ("the employer") alleges that it has been dealt with contrary to section 15 of the Act by the respondents United Food and Commercial Workers Union ("the International") and United Food and Commercial Workers Union, Local 139 ("Local 139"). Section 15 of the Act provides as follows:

2. 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.

3. The employer alleges that the International and Local 139 have violated section 15 of the Act as a result of their failure and refusal to negotiate, with respect to the employer's Kitchener plant, a renewal of the expired collective agreement to which the employer, the International and Local 139 were bound unless the negotiations were conducted on a national basis for all of the employer's plants in Canada which had been covered by the expired agreement and unless a master agreement was negotiated for all of these plants.

4. The relief which the employer is seeking for the alleged violation includes, amongst other things, a request that the Board order the respondents to return to the bargaining table forthwith, to bargain in good faith in order to conclude a collective agreement on behalf of the employer's employees at its Kitchener plant without any pre-conditions to collective bargaining, including in particular the alleged pre-condition that the bargaining be conducted on a national basis for a master collective agreement covering all of the employer's plants that were covered by the expired agreement.

5. The Board heard the testimony of Robert A. Wuest, director of industrial relations, Burns Foods Limited and Frank Benn, Director, Region 18 of the International with respect to the bargaining history of the parties and the events leading up to the filing of this complaint. Mr. Wuest was the employer's chief spokesman in the 1982 negotiations with respect to the expired agreement and is its chief spokesman for the current negotiations. He has been an employee of Burns Foods Limited for approximately thirteen years and has held his present job for approximately three years. Mr. Benn was appointed to his present position as the International's senior officer in Canada in September 1983 and has been a member of the International, its predecessors or local unions thereof since 1946. Prior to joining the staff of the predecessor to the International in May 1954, Benn was involved in two rounds of national bargaining for another employer in the meat packing industry in Canada. From May, 1954 until sometime in 1972 he was the International representative for the International in western Ontario, located in Kitchener. During all of that period, but not since then, Benn was involved with national bargaining with respect to the employer. From 1972 until September 1983 he was International director of the International located in Toronto. Benn has been involved in each round of national bargaining in the meat packing industry since 1948. Having weighed and assessed their testimony and their relative credibility, and having considered the submis­sions of counsel respecting that evidence and the relevant law, the Board makes the findings of fact and law hereafter set out.

6. There has been a form of national bargaining by certain companies in the meat packing industry in Canada since approximately 1950. The national bargaining format involved the employer, Canada Packers Inc., Swift Canadian and Inter-Continental Packers. The bargaining format followed was for each company to conduct its own negotiations with the International and its locals at a single bargaining table. Each company bargaining committee was made up of representatives of the corporation and representatives of the local plants. The union bargaining committee in each case was made up of a representative or representatives of the International and representatives of the locals, usually the president and the chief steward of each local. The chairman of the union bargaining committee was a representative of the International and was referred to as the "chain" chairman. When notice to bargain was given by the union, it was given by the chain chairman to the corporation. According to Benn, the union's practice was to first serve notice on Canada Packers and then on the other companies. When bargaining was taking place, at least with respect to Burns, Canada Packers and Swift, it took place at the same time and in the same city, usually in the same hotel, but at separate bargaining tables. When settlement was reached, the union's ratification process was for each local to conduct its own ratification vote and transmit those results to the chain chairman. The chain chairman would tally the results and an overall majority was required for the settlement to be ratified. A single collective agreement was executed for each company covering all plants of the company for the employees of which the International or one of its locals held bargaining rights. An exception to the single collective agreement existed until 1966 with respect to the Kitchener plant of Burns and Co. (Eastern) Limited. Prior to 1966, that plant had a collective agreement separate from the one covering the other plants of the employer, although both agreements were the product of common negotiations. In 1966 the name of Burns and Co. (Eastern) Limited was no longer used with reference to the Kitchener plant and it became covered by the single agreement to which the employer's other plants were bound. The evidence is not clear whether Inter-Continental at one time bargained in the same cities and at the same time as the other three companies, but some time after the middle 1970's, according to Benn, Inter-Continental conducted its negotiations in Vancouver for its plants which now number only two.

7. Whenever it became necessary for the negotiations to go through conciliation proce­dures, this was done pursuant to the requirements of the provincial legislation for the provinces in which the plants of the companies were located. Sometimes when it was necessary to mediate a dispute, the mediation services of one province, for example Ontario, were used to satisfy the requirements in all provinces.

8. At the expiry of collective agreements in 1984, only Burns and Canada Packers were covered by master agreements of national application. Swift no longer operates meat packing plants in Canada and its two former plants are owned by separate and apparently unrelated companies. Inter-Continental, which formerly operated four meat packing plants, now only operates two and these are not subject to national bargaining. In 1982, the International agreed with its Vancouver local at the employer's plant that the Vancouver local could bargain separately from the national bargaining. It appears that Burns was not aware of this circum­stance until its representatives came to the national bargaining table, but it is common ground that the Vancouver local and plant are not covered by the master agreement which expired May 3 1st, 1984. Two recently acquired plants of Canada Packers in Ontario are not subject to the national bargaining, although Benn claimed in his testimony that bringing those plants into national bargaining with Canada Packers is an issue in the 1984 negotiations.

9. The employer has been involved in this national bargaining format since 1950 and its Kitchener plant at least since 1956. At that time, as noted above, the Kitchener plant operated under the name of Burns & Co. (Eastern) Limited and had its own agreement. Since 1966 the Kitchener plant has been covered by the master agreement. The most recent collective agreement binding on the employer, the International and Local 139 was the one which was in effect from June 1st, 1982 until May 31, 1984 ("the Agreement"). The Agreement is between:

BURNS MEATS LTD.

CANADIAN DRESSED MEATS

(LETHBRIDGE) LIMITED

hereinafter called ''the Company”

-and-

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION

affiliated with the A.F.L.-C.I.O. and

the Canadian Labour Congress (C.L.C.)

on behalf of its Local Unions

hereinafter named, and herein called

"the Union".

The Agreement contains the following recognition provision:

Recognition

The Company recognizes the Union as the exclusive bargaining agency for its plants as under:

Plant Bargaining Agency Kitchener, Ontario Local 139 Winnipeg, Manitoba Local 224P Brandon, Manitoba Local 224P-B Edmonton, Alberta Local 233P Calgary, Alberta Local 363 Lethbridge, Alberta Local 740P

While the Agreement contains at least two references to the responsibilities of the head office of the company and the national office of the union, Article 21 — Application provides as follows with respect to the primary responsibility for its administration:

All parties to this Agreement recognize and agree that in its application at each plant the primary responsibility for interpreting and administering its provisions shall be the duty and obligation of the Local Union and the local plant management.

The duration clause of the agreement provides for either party to give notice to the other party with respect to renewal or termination of the Agreement.

10. The Agreement is signed on behalf of "the Company" party by W. F. Goetz, Vice-President Human Resources, Burns Foods Limited; W. R. Rees, Vice-President, Opera­tions, Burns Meats Ltd.; R. A. Wuest, Director of Industrial Relations, Burns Foods Limited and for "the Union" party by Romeo Mathieu, Director, Region 18 and G. T. Connolly, International Representative. Benn is the successor to Romeo Mathieu. G. T. Connolly is the representative of the International permanently assigned to administer and supervise the collective bargaining relationship with the employer. The Agreement also provides for it to be signed by the duly authorized officers of each local and by the authorized local superintendent of the employer's plant ". . . as evidencing their agreement to and concurrence in its terms.".

11. Informal meetings were held in Toronto on March 6th, 7th and 8th, 1984 between the national bargaining committees of the employer and the union. Wuest presented a written statement to the union on March 6th outlining the company's intention to bargain a renewal of the Agreement on a local basis with respect to each of its plants which had been covered by the Agreement. The union made it clear that it was opposed to bargaining on any other basis than the national bargaining format. The employer subsequently served notice on Local 139 and the locals of the International at the employer's other plants covered by the Agreement.

12. The employer's notice to bargain with respect to Local 139 was given in a letter dated March 16th, 1984 from Mr. B. Higgins, Kitchener plant superintendent, to Steve Szuba, president of Local 139. Julius Hoebink, a business representative of the International, advised Higgins by letter dated March 20th, 1984 that ". . . the members of Local 139, . . . wish to amend the present collective agreement . . . .". Benn told the Board that he advised Hoebink and representatives servicing the other locals at the employer's plants that they should serve notice to bargain on the employer at each plant so not to miss the deadline for giving notice. Enclosed with Hoebink's letter were ". . . changes as recommended by the members of Local 139.". Higgins sent the proposals from the Kitchener plant to Szuba under cover of a hand delivered letter dated March 30th, 1984. The parties met in Kitchener on April 18th. The employer's bargaining committee was made up of representatives from the corporation and the local plant. The union's committee was made up of Hoebink and representatives of local 139. Following that meeting, the union applied for conciliation services and a conciliation officer was appointed. The officer met with the bargaining committees of the parties on May 24th. The company presented amended proposals for settlement of a collective agreement. One of the proposals was to eliminate from the recognition statement and throughout the Agreement any ". . . reference to any plant other than Burns Meats Ltd., Kitchener The parties were subsequently advised effective June 1, 1984 that the Minister of Labour would not appoint a conciliation board. On or about June 13th, a vote was conducted pursuant to section 40 of the Act on the employer's offer respecting the Kitchener Plant made at the May 24th meeting with the conciliation officer. The offer was rejected. Benn recommended that the offer be rejected on grounds which included what he termed to be the employer's departure from its obligation to bargain nationally. A strike began at 7:00 p.m. on Sunday, June 17th. In a letter dated June 28th from Higgins to Szuba, the employer proposed ". . . that the parties return to the bargaining table as soon as possible to conclude a viable collective agreement.". A meeting was held on July 3rd, but the result was no different than the two earlier meetings between the parties and as of the last date of hearing into this complaint on Tuesday, July 3 1st, the strike at the Kitchener plant was continuing.

13. Mr. Connolly, the International's representative who would be the chain chairman for national bargaining with respect to the employer, did not attend any of the meetings in Kitchener. It is clear from Benn's evidence in cross-examination that Connolly did not attend because Benn advised him it would be a waste of time and money in view of the employer's position that it wanted to bargain locally. It is equally clear from Benn's evidence in cross-examination that the International is not prepared to negotiate locally with respect to the employer's Kitchener plant. It was obvious to the parties at the March meetings that the issue of the bargaining format had been joined. The employer intended to bargain on a local basis with respect to Kitchener and the International was opposed to bargaining except on a national basis for a master agreement. Their opposing positions have not altered since then.

14. At the April 18th meeting, the employer spokesman made it clear that the company was prepared to negotiate for a renewal of the Agreement with respect to the Kitchener plant. The union's bargaining committee took the position it would only bargain for the Kitchener plant in the context of master negotiations for all plants covered by the Agreement. This was the unanimous position of the members of the union's committee. The employer's spokesman read its proposals to the union committee, but the union would not address those proposals and stated that it was prepared to bargain only on the basis of national bargaining for a master agreement for all of the employer's plants. The union took the same position at the May 24th meeting in the presence of the conciliation officer when both parties were together. At the July 3rd meeting, the company's representatives again advised the members of the union's bargain­ing committee that the company was prepared to negotiate an agreement for the Kitchener plant. The meeting ended after the employer twice failed to convince the union to consider its proposals and the union representatives continued to state that they would bargain only on a national basis.

15. The reason contended by the employer for wanting to bargain on a local basis is that its Kitchener plant competes in a local or a regional market and several of its competitors enjoy lower rates of wages and benefits. Three of those competitors are represented by the Internation­al and are not part of any national bargaining format.

16. Whether the history of the bargaining relationship between the parties to this com­plaint is measured from the start of national bargaining in or about 1950 or from 1966 when the Kitchener plant became bound to the same, single collective agreement as the employer's other plants, it is a long-established and mature relationship. They, together with the plants and local unions which were bound by the Agreement have developed over more than 30 years an inter-provincial bargaining relationship. In the process, they have developed also the institutional foundation and framework upon and within which the relationship has functioned.

17. Moreover, the relationship has functioned without any statutory foundation, or perhaps more aptly, in spite of there being no statutory foundation for it. Labour relations in the meat packing industry are not subject to the jurisdiction of Parliament. The industry's labour relations come within the jurisdiction of each province within which the industry, or more particularly, the employer herein operates. In spite of periodic policy announcements, primarily from the Government of Canada, in favour of various forms of wide area bargaining as a means of stabilizing collective bargaining, there is no enabling legislation to provide a statutory basis for inter-provincial bargaining in the meat packing industry. In fact, excluding the constri.iction industry, the concept of wide area or multi-party bargaining in Ontario remains based on voluntarism. The concept is given some support by section 51 of the Act which gives binding effect to collective agreements which arise out of multi-employer collective bargaining, but not to the bargaining relationship itself. See for example the Board's decision in Bruce Henderson Limited, [1977] OLRB Rep. 480, at paragraphs 6 and 7.

18. The employer and the International are under no illusions that their collective bargaining does not come under provincial labour relations legislation. This is evident from how the parties dealt with conciliation and mediation when it became necessary to resort to those processes and from Benn's evidence about his reluctant instructions that 1984 notices to bargain for the employer's plants be given locally so not to miss out on time limits. His instructions were calculated to preserve, at least for the respondents, the option of resorting to a strike which would be lawful under the Ontario Act.

19. Absent a statutory foundation for the inter-provincial aspect of the parties' bargaining relationship, it has had to function over the 30 years on the strength of a voluntary arrangement. Now the employer is insisting on altering the relationship and the respondents are insisting on maintaining it. Whether their defense of the bargaining relationship which has existed until 1984 contravenes section 15 of the Act is the issue which this complaint raises for determination by the Board.

20. While the history of the bargaining relationship between the parties is a proper factual basis against which to view the conduct of the parties in assessing whether there has been a violation of section 15, their conduct must also be viewed and assessed within the framework of the Labour Relations Act. The scheme of collective bargaining facilitated and protected by the Act is founded on the concept of a unit of employees represented in collective bargaining by a trade union as the exclusive bargaining agent. The concept was discussed in the following terms in the Board's decision in Bermay Corporation Limited, [1980] OLRB Rep. Feb. 166, at paragraphs 35 and 36:

35.... Bargaining rights under The Labour Relations Act have two incon­trovertible attributes. Firstly, they apply to a bargaining unit rather than to individuals, and, secondly, they are exclusive. The Labour Relations Act contemplates that employees will be grouped, accordingly to their jobs, into an aggregation of job classifications — the bargaining unit — that, once established, is indivisible for purposes of collective bargaining. An employee may be a member of more than one union, but when he works for a given employer he is exclusively represented by the union that holds the bargaining rights for the job classification in which he is employed. The employees within the unit bargain with one voice through one union toward one collective agreement by which they and their employer will be bound.

36. That is not to say that the bargaining unit is immutable. By an order of the Board or by the agreement of the purties a bargaining unit may be altered in its job composition. It may also increase or decrease in size. For example, when an employerwith a unionized plant within a given municipali­ty opens a second plant in the same municipality and a union holds the bargaining rights for all employees of that employer within the municipality, there is a resulting accretion to the bargaining unit. The recognition clause in the collective agreement governs and the second plant falls within the bargaining unit by the operation of the private law of the parties. The same would be true if municipality-wide bargaining rights are held under a Board certificate, prior to the making of a collective agreement. There the accretion to the bargaining unit occurs by the operation of the Act. Always the critical starting point for collective bargaining is the bargaining unit — a collectivity which may increase or decrease in size, but all of whose members occupy job classifications that give them a common industrial relations interest in consequence of which they are exclusively represented by a single trade union under the Act. Together they choose their bargaining agent and through it they bargain with their employer, strike or are locked out, and finally make and live by a collective agreement.

37. As the Board pointed out in that decision.., the critical starting point for collective bargaining is the bargaining unit . . .". The bargaining unit is the starting point from which a trade union begins to acquire bargaining rights by applying under section 5(1) of the Act for the right to represent employees in a unit which it claims to be appropriate for collective bargaining. Section 6(1) mandates the Board to determine the unit of employees that is appropriate for collective bargaining. The Act is replete with references to the term bargaining unit from the sections dealing with the acquisition of those rights, through the sections dealing with the enforcement of those rights, the transfer of bargaining rights to a successor trade union, the preservation of bargaining rights in the sale of a business, the duty of an exclusive bargaining agent to fairly represent the employees for whom it holds bargaining rights and the termination of bargaining rights.

38. As the Board observed in the Bermay decision, supra, a bargaining unit is a unit of employees to which a trade union's exclusive bargaining rights apply. In that decision the Board recognized also that a bargaining unit may increase or decrease in size by evolution, or its scope may be altered by, inter alia, the agreement of the parties. The maximum geographic size or scope of a unit, however, would be circumscribed to the Province of Ontario by the Labour Relations Act. The Act can reach no further than that as a consequence of the constitutional framework under which the statutory regulation of collective bargaining operates in Canada. For example, how could the Board enforce pursuant to section 50 of the Act the binding effect of a collective agreement ". . . upon the employer and upon the trade union that is a party to the agreement . . . and upon the employees in the bargaining unit defined in the agreement.'' beyond the Province of Ontario? In the absence of any enabling statute or reciprocal arrange­ment with other provinces, the Board has no jurisdiction to enforce section 50 or other provisions of the Act beyond Ontario.

39. If the bargaining unit is the critical starting point of collective bargaining, what is that point for the parties to this complaint? To put it another way, what is the bargaining unit of the employer's employees for which the International or Local 139 has exclusive bargaining rights? Whatever it is, it is the grouping of the employer's employees in respect of which the parties to this complaint have a common duty under section 15 of the Act to ". . . bargain in good faith and make every reasonable effort to make a collective agreement.

40. The recognition provision of the Agreement is somewhat ambiguous with respect to whether the Agreement embraces a single bargaining unit formed of all employees of the employer's plants listed therein or whether there are discrete units formed of the employees at each of the employer's plants. For the purpose of this complaint, it is unnecessary for the Board to determine which of those alternative interpretations was intended by the parties. Insofar as the Agreement applies in Ontario, if there is only one bargaining unit in the Agreement it would be circumscribed by the provincial jurisdictional limits of the Act to a unit comprised of all of the employer's employees in the Province of Ontario who were covered by the Agreement. Those are the employees of the Kitchener Plant, so the question of whether the Agreement contains a single unit or several units is academic. For the purpose of this complaint and the Board's jurisdiction under the Act, therefore, the Board finds that the employees of the employer at its Kitchener plant constitute the bargaining unit. It is that unit which defines the legal limits of the bargaining agent's exclusive bargaining rights. It is with respect to the employees in that unit that the employer and the bargaining agent are required to". . . bargain in good faith and make every reasonable effort to make a collective agreement." if they are to comply with the legal duty imposed by section 15 of the Act.

41. The collective agreement is ambiguous not only about whether the Agreement embraces one or several bargaining units; it is also ambiguous about where the bargaining rights are held. First the recognition clause provides that the employer recognizes "the Union" as the exclusive bargaining agency for six specified plants. Then it immediately refers to each local union as the respective "bargaining agency" for each plant, with Local 139 identified as the bargaining agency for the Kitchener Plant. The history of the bargaining relationships of the parties to the Agreement clearly indicates that the International has traditionally bargained together with its locals to produce the Agreement. It is equally clear that for the 1984 negotiations respecting the Kitchener Plant, the International and Local 139 acted together in the serving of notices to bargain, the rendering of written proposals and the formulating of positions taken at the negotiating meetings. The issue of which one of them actually holds the bargaining rights was not argued before the Board. However, it is clear from the facts set forth above and from the provisions of the Agreement that the respondents have together engaged in respect of all the acts and omissions which form the subject matter of this complaint and the history which preceded it.

42. In the meetings between the employer and the respondents on April 18th, May 24th and July 3rd, 1984, the respondents on their own behalf and on behalf of the other locals bound by the Agreement, refused to discuss either the employer's proposals or their own unless they were discussed in the context of the national bargaining relationship which had produced the Agreement and with the objective of concluding a single agreement for all of the employer's plants which had been bound by the Agreement. It is hardly surprising, in light of the history of the bargaining relationship between the employer and the constituents of the union party to the Agreement, that the respondents chose to pursue those objectives. Nonetheless they are bargaining objectives respecting employees who are outside of the scope of the exclusive bargaining rights for the Kitchener Plant employees and beyond the jurisdictional scope of the Act.

43. The scheme of the Act is that collective bargaining shall take place with respect to employees for whom a trade union has the exclusive representational rights in collective bargaining. In order to be in a position to bargain for employees, a trade union must hold bargaining rights under a collective agreement within the meaning of section 1(1 )(c) of the Act, a certificate issued to it under the Act or voluntary recognition as contemplated by the Act. It is possible that the International, by one or more of these means, holds bargaining rights for all six of the employer's plants covered by the Agreement. As noted above, it is unnecessary for the purpose of this complaint and the Board's jurisdiction for the Board to determine whether in fact that is the case. Even if the International has the exclusive rights to represent in collective bargaining all of the employer's employees in those plants, the legal limit of those rights with respect to this complaint and the Board's jurisdiction is the Province of Ontario, and hence in this fact situation, the employer's Kitchener plant. What the respondents are seeking to do with their demand that there be a single set of nation-wide negotiations and a single national collective agreement executed respecting all plants which traditionally have been covered by the Agreement, is bargain beyond the legal limits of the exclusive rights attaching to the Kitchener plant. For the respondents to pursue that objective to impasse is inconsistent with the scheme of the Act that bargaining shall be in respect of a bargaining unit of employees for which a trade union has exclusive bargaining rights. In the Board's decision in United Brotherhood of Carpenters and Joiners of America, [1978] OLRB Rep. 776, particularly paragraph 18 on page 784, it was because the Board found it inconsistent with the scheme of the Act for the United Brotherhood to pursue to impasse the objective of expanding its exclusive bargaining rights by voluntary recognition on a province-wide basis that the Board found the United Brotherhood in breach of section 15 of the Act. While the specific objectives of the respondents and the United Brotherhood differ, the result is the same; an attempt to bargain beyond the legal scope of their exclusive bargaining rights contrary to the scheme of the Act. In this respect, see also the Board's decision in Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138 at paragraph 29. For these reasons, it is inconsistent with the scheme of the Act and unlawful for the respondents to take to impasse their bargaining objective of a single nation-wide set of negotiations and a single national collective agreement.

44. It may well be that the respondents have pursued their impugned course of conduct for the objective of preserving for the Kitchener Plant employees the uniform wages and working conditions which they have in common with employees in the other plants covered by the Agreement. While that objective is not itself illegal, for the reasons set forth above, the means by which the respondents are attempting to achieve it are contrary to the Act. It is not unlawful for a union to bargain for wages and working conditions paralleling those at other plants operated by the employer. The Board's approach to enforcing the section 15 duty has allowed parties to collective bargaining broad freedom to determine the subjects about which they will bargain and the contents of their collective agreements. See United Brotherhood of Carpenters, supra, paragraph 9, and the authorities referred to therein. That freedom flows from the premise that “... the parties are best able to fashion the law which is to govern the workplace and that the terms of an agreement are most acceptable when the parties who live under them have played the primary role in their enactment.". De Vilbiss (Canada) Ltd., [1976] OLRB Rep. Mar. 49. The freedom of parties to fashion the terms of agreements is not without limits, however. For example, it does not extend to being able with impugnity to insist upon a demand which would give rise to an illegality (T. Barlisen & Sons, [1960] OLRB Rep. May 80); to resort to economic sanctions in pursuit of unlawful or illegal demands (Croven Limited, [1977] OLRB Rep. Mar. 162); or to press to impasse a demand inconsistent with the scheme of the Act ( United Brotherhood of Carpenters, supra). It is not possible to delineate in the abstract the totality of the limits on that freedom. Any further delineation of the limits must be on a case by case basis in the context of an actual fact situation.

45. It is clear from the facts respecting the meetings between the employer and the respondents on April 18th, May 24th and July 3rd, 1984, the rejection of the employer's last offer and the circumstances surrounding the strike which commenced on June 17th, that a major factor in the strike is the respondents' demand that there be a single set of nation-wide negotiations and a single national collective agreement executed respecting all plants which had been traditionally covered by the Agreement. Thus the respondents have already pursued to impasse a bargaining objective which can be raised and discussed but, for the reasons set forth above, cannot legally be pressed to impasse in the exercise of the exclusive bargaining rights with respect to the Kitchener Plant.

46. Having regard to all of the foregoing and pursuant to section 89(4) of the Labour Relations Act, the Board determines, declares and directs that:

(1) the United Food and Commercial Workers International Union and the United Food and Commercial Workers International Union, Local 139 ("the respondents"), by refusing to bargain respecting the employer's and their own proposals unless there be national bargaining and a single collective agreement covering Alberta, Manitoba and Ontario, and by carrying those conditions to impasse, have contravened section 15 of the Act;

(2) the respondents cease and desist from their violation of section 15 of the Labour Relations Act; and

(3) the respondents return forthwith to the bargaining table and bargain in good faith for a lawful collective agreement which would cover the Kitchener Plant of the complainant Burns Meats Ltd.

DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG;

1. This proceeding is but another example of an employer taking advantage of the current economic recession to undermine what had been a stable collective bargaining structure that had been in place for over 30 years. It is unfortunate that the complainant in this case seeks to revert to its strict legal rights by demanding that the union bargain with it on a local basis. Whatever gains the complainant may have achieved in the short term by destroying a national bargaining structure must be measured against the long term effect of fragmenting collective bargaining with its employees and attempting to weaken the union's bargaining position. A deteriorating relationship with the complainant's employees and their union can only hurt the employer. In my opinion, the complainant would have been better advised to recognize that the national bargaining structure was only voluntary, but that in the interests of good labour relations, it would continue to bargain with the union on a national basis.

2. I am in agreement with the factual and legal analysis of the majority, but dissent from providing any remedy to the complainant. A national bargaining structure in industries subject to provincial jurisdiction cannot be imposed or continued against the wishes of either party to that structure. The fact remains, however, that such broad based national bargaining does provide for labour relations stability by reducing the number of separate collective bargaining situations, and by limiting the potential for conflict in a large and important industry to a narrow period of time. While this Board cannot compel the continuation of such a bargaining format, I believe that the Board should not condone a party unilaterally withdrawing from national bargaining. I believe that the Board could, in the exercise of its discretion, refuse to issue any remedy in respect of what is, to my mind, a technical violation of the Act.

3. It is clear that the union cannot force this employer to sit at one table and bargain in respect of all of its plants in Canada. However, there is nothing wrong in the union establishing national bargaining objectives, and engaging in separate bargaining to achieve those same objectives throughout the country. Although the bargaining would be carried out in respect of each local, common bargaining objectives and taking the necessary steps to establish the same dates for economic sanctions if those objectives are not met could, from the union's point of view accomplish the results sought through national bargaining. Of course, this approach would be more complicated and would require the affected local unions and their members to maintain the discipline necessary to achieve the desired results.

4. In my opinion, the employer may have succeeded in destroying the formal national bargaining structure in the meat packing industry, but it cannot prevent the union from taking the appropriate internal steps to attempt to bargain, and if necessary, strike for common goals. For all of these reasons, I would have reluctantly found a technical violation of the Act, but would have refused, in the exercise of the Board's discretion, to grant any relief to the complainant in this case.