[1984] OLRB Rep. October 1356
0119-84-U Canadian Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers, Local No. 304, Complainant, v. Canada Trustco Mortgage Company, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members F. W. Murray and C. A. Ballentine.
APPEARANCES: John McNamee for the complainant; Wallace Kenny and Robert Hiscox for the respondent.
DECISION OF VICE-CHAIRMAN R. 0. MacDOWELL, AND BOARD MEMBER F. W. MURRAY; October 29, 1984
I
This is a complaint under section 89 of the Labour Relations Act alleging a breach of section 15 of the Act. The union complains that the respondent employer has failed to "bargain in good faith and make every reasonable effort to make a collective agreement". The employer replies that it has merely engaged in hard bargaining in pursuit of its own self-interest. It was, and remains, prepared to enter into a collective agreement on terms similar to those which the union has already accepted at its branch in St. Catharines.
This matter was litigated over some seven days, and by the end of the hearings (which consumed almost as much time as the bargaining process itself) the Board had before it a fairly complete account of the parties' bargaining conduct, including the details of their positions, the concessions made, the debates, and, in the union's case, its mounting frustration. We do not think that any useful purpose would be served by reviewing those details here. It will be sufficient to set out a general overview of the situation, and the parties' bargaining stance on several of the key items in dispute. With that background, we will turn to the issue which we must determine.
II
The complainant is an industrial union with roots in the brewing industry, where it has had longstanding collective bargaining relationships with all of the major producers. The respondent is a financial institution with more than 200 branches across Canada and over 6,000 employees. Only two of the respondent's branches are unionized. One of these branches is in St. Catharines and has about fifteen employees. The other branch is in Cambridge and has some twenty employees. In both branches, the complainant union is the employees' bargaining agent.
The union was certified to represent the employees at St. Catharines in July, 1982. Following certification, the parties engaged in negotiations and concluded a collective agree- ment which ran from December, 1982, until December, 1983. There were no unfair labour practice allegations made in respect of the certification proceeding or the subsequent collective bargaining. The first agreement at St. Catharines was concluded without a strike.
The first St. Catharines agreement was not a terribly satisfactory one from the union's point of view. Apart from certain rudimentary provisions respecting union security, grievance procedures, and so on, it consisted largely of the employees' existing conditions, and the respondent's established employment policies, which were simply embodied in the terms of the written agreement. However, it was a first agreement at what was then the only branch represented by the union, and it represented an almost unprecedented incursion into the financial sector. It was a "foot in the door", and the union hoped to improve upon the agreement in the next round of negotiations.
In the fall of 1983, the union began to organize the employees at the respondent's Cambridge branch. In November, 1983, the union was certified to represent the part-time employees working at Cambridge. In January, 1984, the union was certified to represent a companion unit of full-time employees. By this time, of course, the parties were already bargaining for a renewal of the agreement covering the St. Catharines branch.
The history of bargaining at St. Catharines helped to clarify the differences between the parties, and crystallize the issues which would later resurface in the bargaining at the Cambridge location. The situation of the two branches was roughly similar, so that, from a practical point of view, it was unlikely that a concession made at one branch would be withheld at the other, or that the ultimate bargaining results would be much different. That proved to be the case.
From the union's perspective, the second round of bargaining at St. Catharines was not very successful. Despite the fact that this was the parties' second collective agreement, the employer was not prepared to make any significant concessions. To put the matter colloquially, it was not prepared to "let the tail wag the dog". It had more than 6,000 employees. The union represented only fifteen. The mere fact that a small number of its employees had opted for trade union representation, did not persuade the employer that it should offer them terms and conditions of employment markedly different from those of employees in similar positions in other branches. The first collective agreement had not involved any significant departure from the company's established policies, nor had there been any serious restriction on its previously unfettered right to manage the business as it saw fit. The company was determined to keep it that way.
As it turned out, the employees themselves were not prepared to press the matter to impasse. On February 22nd, the union put the employer's final offer to the St. Catharines employees with the recommendation that they reject it and authorize a strike. The employees declined to do so. They voted nine to six in favour of accepting the employer's offer. A collective agreement was subsequently signed on that basis.
With this background, it is hardly surprising that when similar issues were later raised at Cambridge, the employer was reluctant to depart from the St. Catharines position, unless it could be persuaded that the situation at Cambridge was different. From the employer's perspective, the St. Catharines agreement became the most relevant collective bargaining bench mark; moreover, its terms largely mirrored the wage and benefit programme applicable to the overwhelming majority (i.e., more than ninety-nine per cent) of the company's employees who were not unionized. The status quo, its most recent bargaining experience, and its own business objectives, all suggested a collective agreement at Cambridge framed along the lines of the St. Catharines settlement. The union concedes that, in principle, it cannot quarrel with the reliance on a key settlement, or a desire for uniform treatment of employees in similar positions within the employer's organization.
As we have already noted, by the time the full-time unit at Cambridge was certified, the bargaining at St. Catharines was well underway and served to shape the bargaining posture of both parties. On January 1 lth, the union presented the company with its proposals for the Cambridge bargaining units. On January 17th, the parties had their first meeting. On January 19th, the trade union applied for conciliation, even though, at the time, there had been no discussion of the "part-time" issues at all. Cameron Nelson, the union's spokesman, explained that the key issues had already been canvassed at St. Catharines, and a repetition of the arguments would have been a "charade". He was anxious to complete the conciliation process so that the union would be in a position to threaten a lawful strike.
In fact, although there were substantial similarities, the issues raised at Cambridge were not precisely the same as those raised at St. Catharines. The union's opening position consisted of all of the St. Catharines demands, together with a number of new ones suggested by the employees at the Cambridge branch. Some of these proposals, as at St. Catharines, involved a substantial departure from the employer's established policies — such as the demand for twenty-six weeks of paid maternity leave in lieu of the existing seventeen weeks of unpaid leave. Other union demands were less costly or dramatic. The company's opening position involved a package with some modifications to the language of the first St. Catharines agreement.
If, as the union maintained, its position on the key issues had already been considered and rejected by the employer at St. Catharines, one might ask why the union presented identical and additional demands at Cambridge. The answer can be found in Mr. Nelson's explanation of why he applied for conciliation immediately after the first meeting with the employer dealing with the Cambridge issues. Nelson believed that the only possibility of extracting concessions from the employer lay in the threat of economic sanctions. Mere discussion, however detailed, civil and rational, would be insufficient where, as here, the parties had different frames of reference, premises, and objectives. Nelson wanted to be in a position to back his arguments not only with reason, but also with power — hence, the necessity of completing the conciliation process which, in Ontario, is a condition precedent to a lawful strike. In this respect, Mr. Nelson was acting upon and endorsing a fundamental tenet of our collective bargaining system — one to which we will address further comment below.
The employer was represented in bargaining by Robert Hiscox, its manager of employee relations and training. Mr. Hiscox had been an observer at the St. Catharines negotiations, but he had not taken a direct part in the bargaining. Cameron Nelson was the union's spokesman at both locations.
It is conceded that despite some scheduling difficulties because of the other commitments of the parties' spokesmen, there were a number of meetings and a vigorous discussion of the philosophical and substantive merits of the parties' respective positions. There was no refusal to recognize the union as the employees' bargaining agent, to meet at reasonable times, or to entertain the union's submissions on all of the matters in dispute. For its part, the employer explained the rationale for each of its positions, and why it was unwilling to accede to the union's proposals. A number of items were "signed off' at the first meeting on January 17th, and further items were agreed upon at each and every meeting thereafter. In this sense, there was continuing "progress" towards a collective agreement. Information was forthcoming from the employer upon request (if not always immediately), and Mr. Nelson concedes that he was not hampered in bargaining by any inadequacy of information. Mr. Nelson testified that he did not think that the information he requested would really make much difference to the bargaining process and he was aware of much of it in any event.
There was an understanding that the parties would attempt to settle "language" before "money" issues, and that they would concentrate on the full-time agreement in the expectation that its terms would serve as a model for the part-time employees. By and large, they followed this procedure, and while the union now complains that the company refused to adequately discuss the part-time issues, we are satisfied that there was an understanding that the full-time agreement would be resolved first. In any event, there was later discussion on the part-time employee concerns, and we again note that the union applied for conciliation before there had been any discussion on the part-time issues at all. At St. Catharines there was no part-time unit. The parties had proposed, and the Board had certified, a single bargaining unit covering both full-time and part-time employees. To this extent, at least, the situation at Cambridge was a little different. But even here the St. Catharines experience was obviously relevant.
The union's concern was not a lack of discussion or even the employer's stance on any particular issue. In argument, the union conceded that the employer was prepared to sign a collective agreement (albeit on its own terms) and that it could have lawfully arrived at the bargaining position which prompted the union to call a strike. Mr. Nelson even testified that wages were never really a critical issue after the conclusion of the St. Catharines agreement. From the union's perspective, the problem was the absence of any significant concessions on any of the key issues. While conceding that the employer need not make a concession on any specific issue or adopt any particular position, the union submits that the employer was obliged to make some reasonable effort in some direction to compose its differences with the union, which, in the union's submission, necessarily involved at least some compromise or concessions. In the union's view, the employer's position amounted to no more than "fine tuning" the St. Catharines agreement. It was only prepared to agree to minor variations in relatively insignificant areas (for example, jury duty, or notice of technological change) where there were no established corporate norms, and the settlement would have no significant cost or precedent value. In substance, the only agreement which the employer was prepared to accept, was one which did not alter its established employment practices.
It is this determined effort to preserve the status quo and existing managerial prerogatives that the union contends is bargaining in bad faith because, it is argued, it effectively denies the union any meaningful participation in the regulation of the terms of the employer-employee relationship. It is admitted that the employer is prepared to recognize the union as the employees' bargaining agent, and to sign a collective agreement, but, in the union s submission, the employer is unwilling to concede to the union any significant role in representing employee interests or any substantial or significant right to challenge the unilateral exercise of managerial authority. A few references to the employer's bargaining positions may serve to illustrate the nature of the union's complaints.
In the case of wages, the employer explained that the salary levels for its branches were based upon a modified "Hay system" of job evaluation, which generated a salary grid through which employees would progress depending upon their performance. The same system was applicable in all of the employer's branches and, in particular, in the twenty-eight branches in its mid-western Ontario region. Benefits, likewise, were established on a group basis for the company's entire employee population. In both cases, the company sought to preserve uniformity and ease of administration. Collective bargaining had imposed a legal regime on two of its branches which was quite different from that of the other two hundred, and the company was prepared to recognize that fact. But the company was not prepared to agree to different substantive terms and conditions of employment for this tiny minority, nor did it welcome the prospect of arbitral review of its decisions as to when, on the basis of merit, an employee should receive a promotion or progress to a higher level in the established salary range. In the former case, the employer was simply unwilling, merely because the union demanded it, to accede to a higher level of remuneration for the employees at Cambridge than was payable to employees doing the same work elsewhere — including St. Catharines where the terms and conditions of employment had already been established by collective bargaining and were embodied in a collective agreement. In the latter case, the employer was unwilling to share its managerial prerogatives with an arbitrator or fetter its right to make its own assessment of employee ability.
A similar theme underlies the employer's position on seniority. Once again, it was prepared, in its discretion, to consider an employee's length of service in promotion or layoff situations, but it was firm about preserving what was described as the "merit principle upon which the employer had purportedly operated for years, and which was said to be an important element in its business success. Once more, it did not want an arbitrator "second-guessing" those decisions, nor did it welcome the prospect of costly arbitration proceedings, even if the ultimate result was a finding in the company's favour.
In the case of employee terminations, the company was prepared to agree to a "just cause clause" but demanded the inclusion of a list of offences for which the specific penalty of discharge would be in order. The effect would be to limit an arbitrator's discretion to substitute some lesser penalty; and while most of the listed offences (theft, sabotage, misappropriation of funds, unauthorized disclosure of financial information to competitors, etc.) would in most cases result in a discharge which would probably be sustained by most arbitrators, there were other offences (being under the influence of alcohol while at work, conviction of a criminal offence, refusal to accept scheduled hours, etc.) where the result might be more problematic. Section 44(9) of the Labour Relations Act contemplates that the bargaining parties may limit an arbitrator's discretionary remedial authority by including in their collective agreement "specific penalties" for designated offences. That is what the employer sought to do.
The employer also sought some variation in the description of the bargaining unit, to recognize the fact that, on an overall corporate basis, the distinction between "part-time" and "full-time" status for wage and benefit purposes was drawn at twenty-five hours per week, rather than twenty-four hours as determined by the established practice of the Ontario Labour Relations Board. Similarly, there were established corporate policies respecting employees who might have occasion to work in a particular branch for less than twelve hours per week. The company regularly transferred employees from one branch to another to work for a few hours when there were unexpected scheduling problems at the branch, thereby creating quite a number of transient employees who would regularly spend short periods of time away from their home branch. This was of no consequence when moving from one non-union branch to another, but might pose problems (job posting, overtime entitlement, etc.) if these employees were temporarily transferred to a branch covered by a collective agreement. The company sought to exclude these casual employees from the bargaining unit in order to avoid such administrative problems, and at St. Catharines the union was prepared to accept this proposition. At Cambridge, the union resisted and the matter was eventually dropped.
We do not think it is necessary to multiply the examples. Mr. Hiscox was quite candid in his admission that the company preferred to operate in a union-free environment, and, for the most part, continued to do so. The two branches represented by the union were a tiny island of collective bargaining in a sea of unorganized workers for whom there were well-established employment policies based (in the company's view) on objective criteria. The company was unwilling to depart from those policies simply because the union demanded something different. And, for the same "political reasons" that prompted the union to seek a collective bargaining breakthrough, the company was determined to resist. Any significant concessions would give the union a public relations victory, would provide the "ammunition" for future organizing campaigns, and, one way or another, would have to be extended to all the other branches. From the company's perspective, it might be difficult to maintain wage differentials between groups performing essentially similar functions. The employer was prepared to sign a collective agreement on terms similar to those established in the St. Catharines agreement. It was not prepared to go much further.
Faced with what he regarded as the employer's intransigence, Mr. Nelson decided early in the bargaining process that it would be necessary to seek a mandate for strike action. As we have already noted, the union applied for conciliation immediately after the first meeting to deal with the Cambridge situation, and by February 13, 1984, it had obtained "no-board reports" for both the full-time and part-time bargaining units. Seventeen days thereafter, it would be in a legal position to call a strike. On February 23rd, it scheduled a meeting of employees to seek their authorization.
The meeting was conducted in two stages: first with only the trade union members present, then with those who were not trade union supporters. In both cases, Mr. Nelson explained the parties' bargaining positions and the reasons why there was unlikely to be any movement unless the union was authorized to call a strike. Although there were two separate bargaining units, the union decided that there should be but one combined ballot for both units. The result was ten ballots in favour of strike action, and eight against.
Mr. Nelson regarded the results as sufficiently different from St. Catharines (where a similar strike call had been rejected the night before) to constitute a firm mandate to call a strike if the bargaining committee considered it necessary. They did; and a strike commenced on March 22nd. Six of the eight full-time employees refused to participate, as did six of the twelve part-time employees. These dissenters remained at work. The rest of the employees manned the picket line. The company endeavoured to carry on business as usual. The present complaint was filed on April 11,1984, and by the time the hearings were completed, it was unclear whether any of the employees still remained on strike.
The union contends that the employer has engaged in a series of empty discussions, since, except in inconsequential areas, it has adhered rigidly to its own views of the appropriate content of a collective agreement, and has been unwilling to seriously consider or conclude an agreement embodying any of the union's proposals. It will willingly accede to an agreement based on its existing policies and practices. It is unwilling to conclude an agreement on any other basis. In the union's submission, the agreement proposed by the employer would provide little opportunity to effectively represent employees on matters of concern to them, and virtually no independent review of the exercise of managerial discretion. It is, in the union s view, form without substance. It does little more than affirm the status quo, incorporating existing employer policies and unilateral management authority into the terms of the agreement. The union argues that this is the antithesis of "real" collective bargaining which, it submits, should accord the union the right to participate in or challenge decision-making which adversely impacts upon employees. The union characterizes the employer's position as a form of "Boulwarism", and relies upon the decision of the National Labour Relations Board in General Electric Co., 150 N.L.R.B. 192, 57 L.R.R.M. 1491 (1964); affirmed 418F (2d) 736, 72 L.R.R.M. 2530 (C.A.2, 1969); certiorari denied 397 U.S. 965,73 L.R.R.M. 2600 (1970). The union submits that the employer's rigid adherence to its established practices, and determination not to yield except on minor items, is a negation of the collective bargaining process mandated by the statute.
We do not agree, nor do we think it is necessary in this case to undertake any extensive analysis of the American jurisprudence flowing from the controversial 1964 decision in General Electric. American decisions arising in a different legislative, historical and jurisprudential context, do not necessarily provide an unfailing guide to the legal result in this jurisdiction; and, in any event, when this case is compared to General Electric, it is apparent that the circumstances are not similar. The N.L.R.B.'s finding in General Electric was based upon the totality of the employer's conduct, including: a failure to furnish relevant information requested by the union; an attempt to bargain with local unions directly so as to undermine the position of the International; the presentation of a variety of proposals, without much discussion, on a take it or leave it basis; taking untenable and unreasonable positions, without tangible business justification, for no apparent purpose other than to avoid yielding to the union; and a massive communications programme undertaken as if the union did not exist and designed to convince employees that the employer was responsive to its needs while the union was not — a communications campaign which, in the N.L.R.B.'s view, amounted to direct dealings with the employees in derogation of the union's status as the employees' exclusive bargaining agent. The circumstances here are clearly distinguishable. [For a good overview of the American law in this area, see Charles J. Morris, The Developing Labour Law, pp. 55 3-682. For an examination of the results of the American decision to regulate the subject matter of collective bargaining, see pp. 694-872.]
We do not question the occasional value of references to the American jurisprudence. The American regulatory experience can provide useful analogies and insights, as well as vivid illustrations of the logical consequences to which seemingly narrow principles can be taken as the law unfolds on a case by case basis. These consequences may only be dimly perceived in the early stages of this legal development, and, in this sense, the American case law may not only provide support for novel propositions not previously endorsed in this jurisdiction, but also concrete evidence of the reasons why such propositions should not be accepted. Once the genie is out of the bottle, or Pandora's box is opened, it may be difficult to return to the previous status quo, and when faced with a hard case, it is useful to know whether the result which seems to commend itself to the tribunal is likely, in the end, to make "bad law" or, at least, bad policy. However, in our view, the principles necessary for the resolution of this particular case, can be found closer to home. In Radio Shack, [1979] OLRB Rep. Dec. 1220 the Board had this to say:
The duty to recognize a trade union and to bargain in good faith does not require an employer to enter into any collective agreement proposed by a union. It is apparent from the structure and history of the legislation that the Legislature has assumed that the parties are best able to fashion the details of their relationship. The assumed strength of this approach is that labour and management are more likely to accept an employment relationship which they themselves create than one that is imposed on them. So too, their agreement is likely to be more accommodative of the economic and social demands that each faces. Accordingly, both parties are entitled to bargain hard for the agreement that they believe to be acceptable. This is so even if one of the parties has an overwhelming strength at the bargaining table and is able to achieve most or all of its needs. The exercise of such raw bargaining power in good faith does not offend the bargaining duty imposed by this Act. See York Regional Board of Health (1978), 1978 CanLII 3478 (ON LA), 18 L.A.C. (2d) 255 at page 263 (Adams).
- Thus, from an employee viewpoint the right to engage in collective bargaining is not a right to achieve the terms of employment employees may wish. It is simply an opportunity to combine together to try and achieve their needs with the possibility that economic realities will dictate quite a different result in any particular situation.
Similarly, in C.C.H. Canadian Limited, [1974] OLRB Rep. 375, the Board observed:
There was no evidence to suggest that the company's position on these items was other than "hard bargaining". There is no requirement that a company must make concessions or agree to a particular agenda of discussions. The parties met often and bargained hard. Because the union might have to accept an agreement ''tailored to the company's measurements~~ , to use a modified version of Mr. Peacock's own chosen words, is no reason to conclude that the company was bargaining in bad faith. (See Regina ex. rel. Hearn v. Norfolk General Hospital 1957 CanLII 515 (ON MAGCT), [1957] 119 C.C.C. 290 (Ont. Mag. Ct.). There was no evidence to suggest that the company was unprepared to sign an agreement; but of course it wanted an agreement on its own terms. Collective bargaining is redolent of self interest and without evidence to suggest that the company's terms were so unreasonable as to suggest that, in reality, it wanted no agreement and no trade union, the Board is unprepared to grant the application.
Finally, in DeVilbiss (Canada) Ltd., [1975] OLRB Rep. Sept. 678, the Board described the purpose of the bargaining duty as follows:
It is our belief that the duty.. .has at least two functions. The duty reinforces the obligation of the employer to recognize the bargaining agent and, beyond this somewhat primitive though important purpose, it can be said that the duty is intended to foster rational informed discussion thereby minimizing the potential for "unnecessary" industrial conflict.
We have juxtaposed these various passages, because, in our view, it is important to reiterate both the substance of the bargaining duty, as well as its limitations. In recent years the Board has been scrupulous to protect the framework of collective bargaining: the independence of the union, the integrity of its role as the employees' exclusive bargaining agent, and the right to information necessary for it to properly perform its statutory role. But the Board has been equally clear that it will not act as interest arbitrator, or prescribe the precise contents of the parties' collective agreement — even in the face of an "egregious" breach of the duty to bargain in good faith (see Radio Shack, supra). The content of the agreement is for the parties to determine, in accordance with their own perceived needs and relative bargaining strengths. The legislation enables employees to combine together to bargain collectively and compels the employer to recognize their bargaining agent. It further provides a framework within which there can be an exploration of the parties' differences and a sincere effort to reach some accommodation. Despite the adversarial aspects of collective bargaining, there are substantial areas of mutual interest between employers and employees which informed discussion may reveal. But the statute does not require any particular concessions, nor does it stipulate the content of a collective agreement, or even that a collective agreement always must be the necessary outcome of the parties' bargaining.
One cannot quarrel with the proposition that the "duty to bargain in good faith" must encompass an obligation to engage in informed and rational discussion, and in exceptional circumstances an employer's position at the bargaining table may be so patently unreasonable or devoid of apparent business justification as to evidence a desire to avoid any collective agreement altogether. So may an unexplained retreat from a previous agreed position, or the untimely insertion of new issues into the bargaining process. However, the Board must be careful that in adjudicating disputes and giving a reasoned elaboration for its decisions, it does not impose its own model of decision-making as the normative standard for the collective bargaining process. Collective bargaining is not simply a matter of presenting proofs and reasoned arguments in an effort to achieve a favourable outcome, nor is that outcome necessarily arrived at, or explained, by a logical development from given and accepted premises. It is a process in which reason plays a part — but not the only part. There may be a range of potential outcomes or solutions and the ultimate result may have more to do with economic strength than abstract logic. In particular collective bargaining situations there simply may not be any commonly accepted principles or criteria and, in consequence, no objective basis for distinguishing a "claim of right" from a "naked demand". Reason and self-interest are inextricably intertwined. Ultimately the parties may reach agreement only because of a realistic appraisal of the value of their objectives in relation to their ability to obtain them, including the costs they are able to inflict on one another. It may have little to do with what some outsider might consider a "fair" settlement, or a just allocation of rewards to capital and labour.
Rational discussion is an important aspect of the bargaining process. So is power. Persuasion is an effective tactic to gain one's bargaining objectives. So is economic pressure. Whether that system actually results in a "just wage" or "distributive justice", we leave for others to debate. Collective bargaining permits that outcome, but it does not compel it. (For an interesting anaylsis of the impact of collective bargaining see: What Unions Do by R. B. Freeman & J. L. Medoff, Basic Books, New York, 1984.)
The facts of this case provide a graphic illustration of the absence of shared principle, and the predominance of bargaining power as a means of settling the parties' collective bargaining differences. The union seeks to limit the exercise of managerial authority and achieve for its supporters, terms and conditions of employment not only more generous than the employer is willing to pay, but also more generous than the employer is currently paying to hundreds of other employees in identical circumstances. The employer seeks to maintain its managerial prerogatives and provide levels of remuneration consistent with its own assessment of its needs, its own organizational imperatives, and its own perception of the dictates of the market place. There is no obvious way of reconciling these competing interests, nor is there any reservoir of principle to which one can resort to provide the "right answer". No amount of rational discussion or reasoned elaboration will necessarily produce an accommodation. Nor can there always be such accommodation in our system of free collective bargaining which ultimately rests, as it must, on the right of parties to resort to economic sanctions in pursuit of their own self-interest as they define it. Under our statute their only obligation is to endeavour to conclude a collective agreement and if that is the true intent, neither the content nor the consequences of that agreement are of any concern to the Board.
This is not to say that collective bargaining must always be a "zero sum game", or that there cannot be substantial areas of mutual accommodation and joint decision-making. But our statute mandates collective bargaining, not co-determination. Co-determination, or co-partnership may be the result of collective bargaining, but it is not an outcome required by law. Nor was the duty to bargain in good faith designed to redress an imbalance of bargaining power. A party whose bargaining strength allows it to virtually dictate the terms of the agreement does not thereby bargain in bad faith, and that proposition is applicable whether it is the union or the employer which "has the upper hand".
In the circumstances of this case, we are satisfied that the employer's conduct is properly characterized as hard bargaining in pursuit of its own self-interest and legitimate business objectives. It was, and remains, prepared to sign a collective agreement on terms similar to those agreed to in St. Catharines, and, in our view, it was entitled to take into account the relative insignificance of this bargaining unit in its overall organizational scheme. If its rigid insistence on the preservation of management rights has a certain ideological cast, it is one which in our system is recognized as legitimate. There has been no breach of section 15 of the Act. The complaint is therefore dismissed.
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I have read the majority decision. I do not agree. In my view, from the very outset, the employer took a position which it knew was tailored for rejection. There was no real intention to conclude a collective agreement. The employer was merely going through the motions.