Retail, Wholesale & Department Store Union, AFL-CIO-CLC v. T. Eaton Company Limited, 1985 CanLII 933

Retail, Wholesale & Department Store Union, AFL-CIO-CLC v. T. Eaton Company Limited

[1985] OLRB Rep. March 491

2405-84-U Retail, Wholesale & Department Store Union, AFL-CIO-CLC, Complainant, v. T. Eaton Company Limited, Respondent

BEFORE: Ian C. Springate, Alternate Chairman, and Board Members I. M. Stamp and F. G. Theobald.

APPEARANCES: J. K. A. Hayes and Patrick Macklein for the applicant; H. A. Beresford, Robert I. Atkinson and R. A. Hubert for the respondent.

DECISION OF IAN C. SPRINGATE, ALTERNATE CHAIRMAN, AND BOARD MEMBER

I. M. STAMP; March 6, 1985

1. This is a complaint under section 89 of the Labour Relations Act alleging that the T. Eaton Company Limited has breached several sections of the Act. The complainant trade union relies primarily on the claim that the company has violated section 15 of the Act, which provides as follows:

The parties shall meet within fifteen days from the giving of the notice (to bargain) 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.

2. The company operates a nation-wide chain of department stores. Altogether it employs some 35,000 employees. Prior to the events leading up to the filing of this complaint, the only company employees represented by a trade union were a handful of stationary engineers in Toronto and British Columbia as well as employees at its store in Victoria, British Columbia who are represented by a certified employee association. This situation changed dramatically following an organizing campaign by the respondent trade union in Southern Ontario. On March 28, 1984 this Board certified the union as the bargaining agent of employees in four separate bargaining units at the company's store in Brampton. The four units involved were a full-time and a part-time unit of sales staff, as well as a full-time and a part-time unit of office staff. On April 13, 1984 the Board certified the union to represent a unit of full-time and a unit of part-time employees at the company's store in St. Catharines. Two certificates for each store were also issued to the union with respect to three company stores in Metropolitan Toronto. The three locations were the company's Shoppers' World store (where the certificates were dated May 4th), the Scarborough Town Centre store (May 7th) and the Yonge-Eglinton Store (June 8th). On July 11, 1984 the union was also certified to represent a unit of seven employees at a company warehouse store in London. In all, the union was certified to represent approximately 1,000 company employees. Although this is a large number of employees in absolute terms, they represent less than four per cent of the company's total work force.

3. On March 29, 1984 the union served the company with a notice to bargain for a collective agreement with respect to employees at its Brampton store. In April the union sent the company its opening proposals for a Brampton collective agreement. Actual negotiations with respect to the Brampton store commenced on May 16, 1984. This was prior to the company receiving a notice to bargain from the union with respect to most of the other stores and prior to the issuance of certificates covering employees at the Yonge-Eglinton and the London warehouse stores. As will become clear, a major dispute arose between the parties concerning how bargaining should be conducted with respect to the various stores where the union held bargaining rights.

4. The chief union spokesman at negotiations with respect to the company's stores in Metropolitan Toronto and Brampton was Mr. Robert McKay, a union business agent with many years experience. Other union officials, namely Mr. Abe Player and Mr. John Fuller, were assigned to be the union's chief spokesman at the London and St. Catharines stores respectively. Mr. T. Collins, an international representative of the union, was selected to co-ordinate the bargaining at all company stores. The union did not, however, utilize only full-time union officials on its bargaining committees. Rather, at each store five bargaining unit employees (two at London) were selected to also be part of the union bargaining committee for that store.

5. The chief company spokesman was Mr. Ron Hubert, the company's employee relations manager. Prior to 1972 Mr. Hubert had been the corporate industrial relations manager at Canada Packers, where he was responsible for the negotiation and administration of some 30 collective agreements. Mr. Hubert headed up the company negotiating team at all locations except London where Mr. Barry Puckett, a member of Mr. Hubert's staff, served in this capacity. At all other locations, Mr. Hubert was joined by a member of his staff as well as two or more managers connected with the local store.

6. It is noteworthy that during the union's organizing campaign at the six stores in question, the company did not engage in any anti-union activity designed to deter employees from joining the trade union. After the union had been certified, the company on a number of occasions stated that it recognized the union's status as bargaining agent for the employees. The company responded to requests for information from the union by providing the union with lists of employees in each bargaining unit as well as each employee's classification and wage rate. The company also provided the union with information regarding company programs relating to matters such as paid time off and employee sickness and disability plans.

7. Approximately 30 negotiating sessions were held between the parties. As already noted the first of these sessions was held with respect to the Brampton store on May 16, 1984. Present for the union was its Brampton negotiating committee comprised of Mr. McKay and five store employees drawn from both the full and part-time staff. Also present was Mr. Collins, the coordinator of bargaining for the union at all six stores. Although the company took the position that since the full and part-time employees had been included in separate bargaining units by the Board they should be covered by separate collective agreements, it made no challenge to the inclusion of full and part-time employees on a single bargaining commitee. To the contrary, Mr. Hubert expressly stated that the company recognized the right of the union to select who it wanted to represent it at the bargaining table.

8. Prior to the commencement of the formal negotiating session on May 16th, there was an informal meeting between Mr. Collins, Mr. McKay and Mr. Hubert. At this meeting the two union officials indicated that they desired to negotiate a single "master agreement" to cover employees in all of the certified bargaining units. Mr. Hubert's response was that the company desired to negotiate a separate collective agreement for each certified bargaining unit. In these proceedings, Mr. Hubert testified that while at Canada Packers, he was responsible for the negotiation and administration of a master agreement covering 11 different locations. According to Mr. Hubert, the master agreement had created several difficulties for management. These included problems related to getting a negotiated agreement ratified by employees at all locations, feelings of neglect on the part of employees at the smaller establishments as well as disputes between local and national union officials relating to the administration of the agreement.

9. When the formal negotiating sessions began on May 16th, and after a number of preliminary matters had been disposed of, the parties turned to consider the union's proposal relating to employees at the Brampton store. The proposal consisted of a draft collective agreement covering non-monetary items for both full and part-time employees, as well as a summary of the union's position with respect to benefits and wages. Although the union's proposal covered both full and part-time employees, it is clear that the union expressly or by implication agreed to a company suggestion that the proposal initially be discussed only insofar as it applied to full-time employees. Discussion of matters relevant only to the part-time employees was to be left until later.

10. The draft agreement proposed by the union contained a recognition clause which would merge the full and part-time bargaining units at Brampton into one, and also expand the units so as to include management trainees who had been excluded from the units during the certification proceedings. As might be expected, the proposed agreement contained many provisions which would be regarded as favourable from a trade union's point of view. By way of example, although the Act requires an employer to agree to a union request that a collective agreement contain a provision requiring the employer to check off union dues from employee wages and remit them to the trade union, the union proposal sought to make it a condition of employment that all employees take out membership in the union. As another example, the union proposed that when selecting employees for promotions, layoffs and recalls, seniority be the governing factor, subject only to the requirement that the senior employee have the ability to competently perform the job. Such a clause would prohibit the company from selecting a junior employee who, in the company's view, was more capable than the senior employee.

11. At the negotiating session on May 16th, Mr. McKay on behalf of the union began to explain the union's proposal on a clause by clause basis. During this process, Mr. Hubert, the company spokesman, asked Mr. McKay a number of questions relating to the meaning of certain proposed clauses as well as what the union intended to achieve by them. While Mr. Hubert did not direct any argument with respect to the union's proposals, it is clear that many of his questions did indicate to the union that the company was not in agreement with its proposals. Mr. McKay testified that it seemed like Mr. Hubert had asked "500 questions". Mr. McKay further testified that Mr. Hubert's questions resulted in an extensive dialogue between himself and Mr. Hubert. The weight of the evidence, however, suggests that while Mr. Hubert did ask a large number of questions, they fell well short of the 500 mark. The evidence further suggests that what occurred could not accurately be described as an extensive dialogue. Instead, approximately 75 per cent of the talking was done by Mr. McKay.

12. A second negotiation session with respect to the Brampton store was held on June 11, 1984. On this day the union completed a review of the "language clauses" in its proposal except for those of specific concern to the part-time employees. The union did not discuss in any detail monetary matters such as wages and employee benefits. This was in line with a general practice in negotiations whereby the parties seek to first get agreement on "language clauses" before turning their attention to monetary matters. It had been the union's expectation that once it completed explaining its own proposals, the company would immediately respond with a written proposal of its own. This did not occur. Instead, at the third Brampton negotiating session held on June 14, 1984, Mr. Hubert began to go through each of the union proposals explaining why the company could not agree to them as worded. Mr. Hubert testified that this manner of proceeding was part of the process which he had always followed in negotiations. According to Mr. Hubert, this process involves three separate phases. In the first phase the union explains its proposals, with the company asking questions to ensure it understands what the union is hoping to achieve by its proposals. During the second phase the company explains any objections it has to the union proposals with the aim of trying to convince the union that its proposals are not appropriate. The third phase involves the company tabling its own written proposals accompanied by a brief oral explanation as to the rationale behind each of them. We would note that although Mr. McKay in his testimony indicated he felt this manner of proceeding by the company was a waste of time and improper, union counsel raised no such contention. Further, given that the process of collective bargaining consists, in part, of trying to convince the other side to alter its position, we do not regard the company's general approach as having been per se improper.

13. After June 14th there was a delay in the Brampton negotiations caused primarily by the fact that the parties were meeting with respect to certain of the other stores. The next Brampton negotiating session was held on July 4, 1984. Prior to the commencement of the formal negotiating session, Mr. McKay indicated to Mr. Hubert that he was displeased with the speed of negotiations. Mr. McKay testified that he told Mr. Hubert that he "knew what his game was", and that if the company did not soon table a language proposal, the union negotiating committee had instructed him to apply for conciliation. According to Mr. McKay, after this Mr. Hubert seemed to "speed up" and his comments relating to the union's proposals moved "closer to positive". Further negotiating sessions were held with respect to Brampton on July 20th and September 13th. On September 13th, Mr. Hubert finished giving the company's position with respect to the union's non-monetary proposals.

14. While negotiations were underway with respect to the Brampton store, negotiating sessions were held with respect to a number of other locations where the union held bargaining rights. At these sessions, the company indicated that its intent was to go through the same three phase process as at Brampton, that is, to have the union review its proposals, the company state its views with respect to the union's proposals, and then for the company to present its own written proposals. Because the positions adopted by both parties were essentially the same at all of the stores, such a process would largely result in a repetition of what had already gone on at Brampton. Further, in that Mr. Hubert and Mr. McKay were the spokesmen for their respective sides at most locations, they would be saying essentially the same things to each other. As already noted, however, apart from Mr. McKay and Mr. Hubert, the composition of the bargaining teams for both sides varied from location to location. The company justified its desire to repeat the full bargaining process at each location on this fact. According to Mr. Hubert. the company wanted to ensure that its local managers would be familiar with the language and meaning of the clauses included in any collective agreements. A second basis for repeating the full bargaining process — one stressed by Mr. Hubert in his testimony — was that the company desired an opportunity to explain its position to each of the union negotiating committees so as to try to convince them of the correctness of the company's position.

15. Negotiations commenced at the other stores in much the same way as they had at Brampton. The union, however, soon began to object to what it regarded as a repetitious waste of time. The union also made the point that it did not have the responsibility of educating local store managers with respect to the administration of collective agreements. At the Brampton negotiating session held on July 4, 1984, Mr. Collins advised the company that the union was not prepared to continue reviewing its proposals at the other locations since to do so would be a waste of time. At this meeting either Mr. Collins or Mr. Mc Kay proposed that the company rely on the union officials to explain the company's position to the other union bargaining committees. Mr. Hubert rejected this proposal. Mr. Hubert testified that in his view the purpose of negotiations is to try to convince the other side to adopt your position, and that he was not prepared to rely on the union to put forward the company's position. It is of some interest that Mr. McKay testified that while he had, in fact, advised the other committees of what he had been told by the company, he admitted that he had not tried to be persuasive when doing so.

16. In early September of 1984 the union applied to the Minister of Labour for the appointment of a conciliation officer with respect to all of the certified bargaining units. The role of a conciliation officer is to try to assist the parties to negotiate a collective agreement. The appointment of a conciliation officer is also the first step towards putting the union in a legal strike position. If a conciliation officer reports to the Minister that he has been unable to assist the parties to effect a collective agreement, then pursuant to section 19 of the Act, the Minister may either appoint a conciliation board (something he very rarely does) or the Minister may advise the parties that he does not consider it advisable to appoint a conciliation board. The notice of the Minister to the parties advising them that he will not be appointing a conciliation board is generally referred to as a "no board report". Section 72 of the Act provides that fourteen days after the Minister has released a no board report, employees may commence to engage in a lawful strike. Mr. McKay for the union acknowledged in cross-examination that part of the union's motivation for applying for conciliation was to "start the clock" in terms of putting pressure on the company. It is clear from Mr. McKay's evidence that by September union officials were seriously considering the possibility of strike action during the Christmas shopping season, and that subsequently a Christmas strike became a key part of the union's negotiating strategy. Although the Brampton negotiations were ahead of those at the other stores, the union applied for conciliation at all the locations so as to ensure that all of the employees it represents would be in a position to strike at the same time.

17. The first time the parties met with a conciliation officer was on October 4, 1984 with respect to the Brampton store. At this meeting, the company presented a written proposal to the union covering non-monetary items. The proposal was not tabled all at once, but was presented on an article-by-article basis with Mr. Hubert giving a brief explanation of each of the clauses proposed by the company. The company's proposals included a bargaining unit description which would have the effect of reducing the scope of the Brampton full-time bargaining unit by excluding from the unit "seasonal employees" as well as "sales supervisors", a former classification which the company was considering re-establishing. The company also wanted to limit the unit to its one existing store in Brampton, whereas the Board had described the unit to encompass the municipal limits of the City of Brampton. This proposed change would not have any immediate impact on the parties. However, if in the future the company were to open a second store in Brampton, the employees at such a store would automatically be included in the bargaining unit on the language utilized by the Board, but excluded on the language proposed by the company.

18. The union found most of the company's proposals quite distressing. The union objected to a grievance procedure proposed by the company which would require an employee to be specific as to what he or she was grieving about and the remedy requested, but not require the company to put its position in writing. The company also proposed strict time limits for the handling of grievances, and a provision disallowing an arbitration board from relieving against any missed time limits. The company proposed that a discharged employee be able to grieve that the discharge had been without just cause, but at the same time it sought agreement for a stipulation that for certain types of conduct, such as theft and destruction of company property, discharge was an appropriate penalty. An arbitration board reviewing a discharge based on one of these grounds would have authority to decide whether or not the employee had actually engaged in the conduct complained of, and if it decided that the employee had not, it could re-instate him. However, if the arbitration board concluded that the employee had in fact engaged in the conduct complained of, it would be without jurisdiction to substitute a lesser penalty for the discharge.

19. The company's proposals which caused the union the greatest concern related to the application of seniority to promotions, lay-offs and recalls. Whereas the union had proposed that seniority be the deciding factor, providing the most senior employee could completely perform the job in question, the company proposed that seniority be the deciding factor only if, in the company s view, other matters such as skill and ability were equal. The company s proposed clause governing promotions was particularly upsetting to the union. It provided that the company would consider employees for promotion on the following basis:

Any such employees shall be considered on the basis of their skill, ability, qualifications, performance record, potential and experience, and if an employee can satisfactorily perform the requirements of the new position, and in the company's discretion reflects the image and customer profile being attracted by the merchandise being sold, that employee shall be promoted. If two (2) or more employees are so qualified, the company shall determine the best qualified and he shall be promoted. If two (2) or more employees are equally qualified to be the employee promoted, then the company shall promote the employee among them with the longest continuous service with the company.

Mr. Hubert testified that the company desired to include this provision in a collective agreement so as to ensure that the company be able to promote people who "fit the mold" of a particular department. According to Mr. Hubert, in recent years the company has faced increased competition from specialty stores which hire employees not only on the basis of their ability to meaningfully discuss the merchandise in question, but also on whether they "fit the image" of the merchandise. Although the union describes the company proposal as "Dickensian", it does not contend that it is per se unlawful. We would note that the inclusion of such a provision in a collective agreement could not be used to justify the selection of employees based on criteria prohibited by the Human Rights Code such as sex, race or age. This comment is not meant to suggest that we view the company as likely to select employees based on such prohibited criteria, but only to indicate that the law imposes limits on how such a provision might be applied.

20. As already noted, the company's initial proposal was given to the union with a brief explanation at the first Brampton conciliation meeting held on October 4,1984. Mr. McKay's recollection is that by the end of this meeting agreement had been reached with respect to only two collective agreement provisions, namely a clause dealing with employee health and safety, and another clause in which the company agreed to provide a bulletin board for the posting of union notices. Either at the October 4th meeting or shortly thereafter, the union indicated to the company that it regarded Brampton as the "lead store" in negotiations, and it expected that the terms of any agreement reached at Brampton would likely also be agreed to at the other stores.

21. The next conciliation meeting at Brampton was on October 18, 1984. At this meeting the union made a new proposal to the company in which it retreated from several of its earlier proposals. At one point on October 1 8th, Mr. Collins, the union's international representative, privately suggested to Mr. Hubert that if the company agreed to meet employee representatives from all of the stores at a common bargaining table, the union would drop its outstanding request that the parties enter into a master agreement. Mr. Hubert's response was that the company would not meet with representatives from all of the stores at a common bargaining table. Further meetings with a conciliation officer were held on November 6th and November 14th. At this latter meeting the company presented agreement language with respect to the unit of part-time retail employees. On November 5, 1984 the company, with the union's consent, had implemented a general 7.8 per cent wage increase to employees in the various bargaining units, an increase also given to employees in the Toronto area not represented by a trade union. At the conciliation meeting on November 14th, the company indicated that in its view, the unionized employees should not receive any additional increase.

22. While conciliation meetings were ongoing with respect to the Brampton store, conciliation sessions were also held at the other stores. It might be noted at this point that given the number of locations involved and the fact that Mr. Hubert and Mr. McKay were the main spokesmen for their respective sides, there were some difficulties in arranging dates for meetings. Indeed, because of vacations and Mr. Hubert's preparation for and attendance at certain Board hearings relating to the company's Eaton Centre store, only one negotiating session was held in August. The parties did, however, meet six times in September. Further, the company acceded to a union request that at least one conciliation meeting be held with respect to each of the stores during the month of October. In addition to the Brampton conciliation meetings, conciliation meetings were held on October 9th at the Scarborough Town Centre, October 12th at St. Catharines, October 17th at the Yonge and Eglinton store, October 24th in London and October 26th at the Shoppers' World store. A second conciliation meeting was held at St. Catharines on November 1st.

23. At the stores other than Brampton there was some variation as to exactly what happened during conciliation. Generally speaking, however, with respect to the union proposals that the company had already commented on, the company immediately provided the union with its proposals on the same issues. With respect to the union proposals that the company had not yet expressed its views on, Mr. Hubert briefly stated the company's view and then tabled the company's proposal on the same issue. There were some departures from this procedure, however. The most noticeable was on October 9, 1984, at the Scarborough Town Centre. At this meeting, the union not only indicated that it was not prepared to listen to the company explain its proposals on an article-by-article basis, but it advised the conciliation officer present that it wanted the Minister to issue a no board report. The union subsequently sought to stop the issuance of such a report, but to no avail. The union then requested that no board reports issue with respect to the remaining locations. By November 7, 1984 no board reports had been issued with respect to all of the stores.

24. On November 19, 1984 a meeting was held to discuss the procedure for further negotiations. This meeting was attended by representatives of the parties as well as certain officials of the Ministry of Labour. At this meeting the union proposed that one of the following procedures be adopted, namely that the company meet with all of the union's bargaining committees at one bargaining table, negotiate with the Brampton committee supplemented by one representative from each of the union's other committees, or meet only with the Brampton committee while ensuring that the Brampton committee had ready access to a representative from each of the other committees. The union further proposed that the parties set aside one full week for collective bargaining. For his part, Mr. Hubert stated that the company would not be willing to negotiate with representatives of the different union bargaining committees at the same bargaining table, but that the company would consider the union's other proposals. In a telephone discussion the next day with Mr. V. Pathe, the Assistant Deputy Minister of Labour, Mr. Hubert agreed to set aside a week for negotiations with the union's Brampton committee. Mr. Hubert also agreed that during the week in question the company would allow a leave of absence for one person selected by the union from each of the other stores so that they would be available to consult with the Brampton committee. Mr. Hubert placed one condition on his agreement, namely that before the union took any strike action, the company would get an opportunity to meet with the full union committees at each of the stores. Mr. Pathe then contacted the union, which agreed to this condition. Both parties then set aside the week commencing November 26, 1984 for negotiations.

25. On November 22, 1984 the union delivered to the company a written proposal in which it moved off of certain of its earlier positions. It was the expectation of the union that the company would likewise be presenting a new proposal. On Monday, November 26, 1984 the company did, in fact, present the union with four written proposals, one for each of the four Brampton bargaining units, even though the two units of office staff had not yet been the subject of any negotiations. The union was disappointed that the company proposals with respect to the retail employees were not significantly different than those it had tabled earlier. The company proposal did not include any reference to employee classifications or a wage schedule. It did, however, contain a proposed clause relating to employee benefit plans, which provided that the company would continue its current benefit plans "in conformity with their general application throughout the company".

26. At the negotiating session on November 26, 1984 the union posed a number of questions to the company. One was whether the company's most recent proposal was its "final position". Mr. Hubert commenced his response by saying that the term "final position" was a dangerous one to use. He went on to state that while he would not say that the company might not change a sentence, a paragraph or a comma in its proposal, he did not want to mislead the union into thinking there was room for significant change. The union then asked whether the company was prepared to put employee classifications and wages in a collective agreement. This appears to have been the first time that this issue was specifically raised with the company. Mr. Hubert repeated the company position that it was not prepared to go beyond the 7.8 per cent wage increase it had already implemented, but he did not state one way or the other whether the company was prepared to include wages and classifications in a collective agreement. Mr. McKay testified that from Mr. Hubert's comments the union concluded that the company was not prepared to do so.

27. Following the above exchange, the union decided to immediately break off negotiations and prepare for strike action. According to Mr. McKay, the union made this decision because it felt that to date virtually nothing had been accomplished and that to continue to negotiate for the remainder of the week would not likely accomplish anything. The union also decided that the company would not get an opportunity to meet with each of the full union bargaining committees before any strike action was undertaken, as the union had previously agreed to. Mr. Mc Kay testified that since the company had not made any substantial changes in its bargaining position, the union decided that it was not necessary for the company to meet with the other committees.

28. At the point where negotiations broke off on November 26, 1984, the parties had reached agreement on a number of collective agreement clauses. These included a "no discrimination" clause in which the company and the union agreed that there would be no discrimination against any employee because of membership or non-membership in the union. This clause reflected the fact that the union had dropped its proposal that all employees be required to become union members as a condition of employment. The parties had also reached agreement on a procedure whereby dues would be deducted from employee wages and forwarded to the union, although still outstanding was a question relating to who the dues should be sent to. I-low this issue arose, will he dealt with in some detail later in this decision. As of November 26, 1984, agreement had also been reached on collective agreement clauses relating to the role of union stewards, the procedures to be followed by employees unable to attend work, payment for overtime work, meal allowances, bulletin boards and health and safety. Partial agreement had been reached on clauses respecting commission plans, employee leaves of absence and a grievance procedure. The parties were, however, still apart on a substantial number of issues. Although the union had dropped its proposal that the scope of its bargaining rights at Brampton be expanded beyond those granted in the Board's certificates, still outstanding were company proposals that would reduce the scope of the units. The parties also remained at odds on the manner by which employees would be selected for layoffs, recalls and promotions. The union continued to seek improvements in employee benefits, whereas the company had not moved off of its proposed clause which would ensure only that unionized employees continued to receive the same benefits as other employees. As of November 26th, the parties had spent very little time discussing wages, although as already noted the company had stated that it was not prepared to increase wages beyond the 7.8 per cent increase already implemented. Still unclear was the issue of whether the company was prepared to put wage levels into a collective agreement.

29. The union commenced strike action at all six stores on November 30, 1 984. Subsequent to the commencement of the strike, and while hearings into this complaint were underway, the parties had several meetings with the Director of the Ministry of Labour's Conciliation and Mediation Services. One such meeting was held on January 2, 1985. At this meeting, the parties discussed the company's proposal to amend the scope of the various bargaining units, a matter not discussed on November 26th. On January 2nd the union indicated that while it was prepared to consider possible accommodations with respect to the business centre at the Scarborough store, it was not prepared to depart from the unit descriptions set out in any of the Board certificates. Later on the same day, the company provided the union with a letter indicating that, except for the business centre at Scarborough, it was prepared to follow the bargaining unit descriptions contained in the Board certificates. The company also asked the union for its position with respect to the Scarborough business centre. Mr. Hubert testified that from the outset the company had recognized that it could not bargain to impasse over the issue of the bargaining unit descriptions, and that given the large number of items still in dispute, the company was of the view that it had not done so. According to Mr. Hubert. it was only on January 2nd that the union made it clear that with the possible exception of Scarborough, it was not prepared to consider changing the bargaining units from those described in the Board's certificates.

30. At a negotiating session held on January 7, 1985, the company presented the union with a written proposal which would have the effect of including employee classifications and wages in a collective agreement. This appears to have been the first time that wages were dealt with by the parties subsequent to the breaking off of negotiations on November 26th. Another event of some interest occurred during the negotiation meetings in January. Although the negotiations continued to be with respect to the Brampton store, the union sent to the bargaining table its original Brampton bargaining committee, supplemented by employees who were also on the other union bargaining committees. When advised ahead of time of the union's intention to adopt this procedure, Mr. Hubert's only response was that the company could not dictate to the union who it could send to the bargaining table.

31. It had been the union's expectation that a strike over the Christmas sales season would prompt the company to alter its bargaining position, but such did not occur. The company has continued to operate the struck stores. Mr. Hubert testified that the company is prepared to sign collective agreements with the union, but only on terms acceptable to the company. Mr. Hubert readily acknowledged that these terms would leave the company with most of its current managerial prerogatives intact and not give the unionized employees better wages or benefits than those received by other employees. Mr. Hubert testified that, in the company's view, the wages and benefits now being received by its employees are competitive and quite appropriate, and that from the outset of negotiations one of the company's objectives had been not to agree to better conditions of employment for the unionized employees.

32. Mr. Hubert's comments concerning how the company viewed its current wages and benefits were made during his examination in chief. At the very conclusion of his examination in chief, Mr. Hubert made the comment that the company felt that to improve the benefits and wages of employees in the organized stores would simply encourage employees in other stores to organize. In cross-examination union counsel asked Mr. Hubert about this comment and also closely questioned him as to whether the company's refusal to agree to higher wages and benefits for its unionized employees was related to a desire to discourage other employees from joining a union. Mr. Hubert flatly denied that this was the company's motivation. According to Mr. Hubert, the company was concerned about the possible impact on non-unionized employees of agreeing to give unionized employees superior conditions of employment, and as to how such a situation could be explained to the non-unionized employees. Mr. Hubert readily agreed with the suggestion of union counsel that the company would prefer to operate union free, but he rejected the suggestion that the company's bargaining stance was designed to produce such a result. According to Mr. Hubert, the company views its current conditions of employment as fair and competitive and does not believe it appropriate to improve on them simply because some of its employees have joined a trade union.

33. As noted above, section 15 of the Act requires that following the certification of a trade union the parties "shall bargain in good faith and make every reasonable effort to make a collective agreement". The Board regards the section 15 duty to bargain in good faith as having at least two major functions. The first is to reinforce an employer's obligation to recognize the trade union as the lawfully selected bargaining agent of employees. To this end, the section requires an employer to negotiate with the bargaining team selected by the trade union. The employer cannot seek to determine the structure and composition of the union's bargaining team. See: High Times Publication Ltd., [1984] OLRB Rep. Oct. 1448. The Board has also concluded that the section prohibits an employer from attempting to by-pass the union and bargain directly with employees. See: A. N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393.

34. The second major function of the section 15 duty is to oblige the parties to enter into serious negotiations with the shared intent of entering into a collective agreement. This requires that the parties explain their positions to the other side, so as to allow for rational, informed discussions. See: Canadian Industries Ltd., [1976] OLRB Rep. May 199. It also requires that an employer be prepared to enter into a collective agreement. An employer cannot enter into negotiations with the intent of ridding itself of the trade union. Neither can it simply engage in "surface bargaining", whereby it "goes through the motions" of bargaining without any real intent of signing a collective agreement. See: Radio Shack, [1979] OLRB Rep. Dec. 1220. Section 15 does not, however, require that an employer agree to the terms of a collective agreement proposed by a trade union. Neither does it prohibit an employer acting in its own self-interest from engaging in "hard bargaining" so as to obtain an agreement with terms favourable to it. We would refer in this regard to the following excerpt from C.C.H. Canadian Limited, [1974] OLRB Rep. June 375, where the Board commented:

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] 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.

Reference might also be usefully made to the following excerpt from the Journal Publishing Company of Ottawa Limited case, [1977] OLRB Rep. Nov. 748:

The duty to bargain in good faith is administered by this Board in such a way as to improve and facilitate the practice and procedure of collective bargaining. This approach recognizes, however, that the results of collective bargaining are necessarily dictated by the relative economic strength of the bargaining parties. Although the Board should make every effort to restore a bargaining relationship and re-establish the dialogue between the parties to that relationship, it should not go so far as to redress any imbalance of bargaining power that might exist in a particular bargaining situation.

35. The union contention that the company violated section 15 of the Act relies on the manner in which the company carried on negotiations, the content of certain of the company's proposals, the motivation behind those proposals, as well as the cumulative effect of all of these. It is the union's position that when the company's conduct is viewed in its entirety, it demonstrates that throughout the company was engaged in "surface bargaining" and that it had no intent of concluding a collective agreement.

36. The union contends that the structure of bargaining insisted by the company involved a violation of section 15. The union put its position as follows:

It is submitted that the process, adopted and insisted upon by the respondent, requiring substantially identical bargaining sessions at each of six locations followed by further meetings for each unit (totalling fourteen) at those six locations, is indicative of an intent to frustrate and/or unlawfully prolong the reaching of an agreement. Having regard to the appointment of only one chief spokesperson by the respondent for the five major locations, covering all but seven employees affected, his other additional continuing national responsibilities, and his admission that the collective bargaining process would be more prolonged at Eatons than at the Canada Packers/OTEU negotiations (8-10 meetings over 6-7 months for only 13 employees in one unit), such a process was patently and predictably implausible. Such a process would have required, conservatively, more than double the number of meetings (29) which were scheduled prior to impasse on November 26, 1984. The evidence of the respondent is that as many meetings as could reasonably be scheduled were in fact scheduled during the May — November period in 1984.

More generally, it is our submission on this point that the position of the respondent confuses process with result. The employer may be permitted, under the law as presently understood, to insist upon concluding separate agreements for individual certified units. We submit, however, that it is quite a different matter to assert that such a result must inevitably require simultaneous, repetitive bargaining when that process itself is impossible to complete reasonably expeditiously and indeed operates to defeat a positive, expeditious outcome. To the contrary, we submit that the duty imposes both a good faith (subjective) and procedural (objective) obligation upon the parties to fashion a structure for collective bargaining consistent with the situation at hand. "Master bargaining" therefore may be a phrase which relates both to outcome and process. It maybe impermissible for a company or trade union to insist upon the former: that is, that the outcome be a master agreement covering numerous units of several disparate locations. In our submission, however, it must be unlawful to resist some reasonable form of the latter — some form of master bargaining as process — where circumstances reasonably require it. This is particularly so where there have been advanced no supportable reasons to justify repetitive bargaining on an individual basis by the same spokespersons on behalf of the same principals which was the alternative process insisted upon by the respondent in this case.

37. We have no difficulty with the general proposition that an employer is not entitled to insist on a bargaining process that results in time-consuming, repetitive discussion which can serve no useful purpose. Here, however, there appears to have been a rational purpose behind the company's approach to negotiations. This arises from the fact that there was not just one union bargaining committee representing the union at all six stores, but six differently constituted bargaining committees, one for each store. Given that the company was legally entitled to bargain separate collective agreements for each store, and that one purpose of the bargaining process is to try to persuade the other party to agree to your position, we see nothing improper about the company s attempt to be able to put its position directly to each of the union's six different bargaining committees.

38. Closely related to this issue is the union's contention that the company was in violation of sections 15 and 64 of the Act because of a refusal to let union officials put the company s position as expressed at the Brampton negotiations to employees on the other union negotiating committees. Section 64 prohibits an employer from interfering with the administration of a trade union or the representation of employees by a trade union. Union counsel expressed the union's position as follows:

It is submitted that one of the respondent's explanation for its insistence upon the aforementioned process — its desire to put its case directly to the employees and its desire not to "put [its] lot in life in the hands of the business agent" of the trade union — also is inadequate: it is submitted that the failure to recognize representatives of the trade union speaking authoritatively on behalf of employees is a refusal to accept the trade union as the lawful bargaining agent of those employees and is itself a violation of sections IS and 64 of the Act.

It is one thing to speak directly to employees who the employer meets naturally across the bargaining table. It is quite another to insist upon a redundant process with the objective only of dealing directly with rank and file employees — over the objections of representatives of the bargaining agent who have indicated that this exchange is unwanted by both the trade union and the employees.

As indicated above, the Board has adopted the view that section 15 requires an employer to negotiate with the bargaining team selected by the trade union, and not directly with employees. In the instant case, however, at no time did the company seek to negotiate directly with rank and file employees. What the company did seek to do was negotiate with the employees and the union business agent who comprised the union's negotiating committee at each of the stores. Its actions in doing so, in our view, cannot reasonably be characterized as the type of conduct which would amount to a breach of either section 15 or section 64.

39. The union takes the position that the company breached section 15 of the Act in connection with the delays in the negotiation process — delays which it contends were caused in part by the fact that Mr. Hubert was the chief company spokesman at all the stores except London. Union counsel put the issue in the following terms:

In our submission, further evidence of an intention to frustrate or unlawfully delay the reaching of an agreement lies in the respondent's failure to meet from the end of July until August 28, 1984 despite written protests from the trade union (Exhibits 9 & 10). It is no defense to such a complaint to plead that the one available spokesperson, for all locations but one, is committed to unfair labor practice proceedings which did not commence until August 23, 1984. Further, it is no answer to claim that the respondent's representative was overextended. There is an objective requirement imposed by the duty that representatives make themselves reasonably available for collective bargaining or arrange for someone who can.

It is further submitted that an intent to frustrate agreement is also evidenced by the fact that the employer only submitted its first counter proposal nearly five months after the commencement of bargaining, after the union announced it was going to apply for conciliation, despite repeated previous requests that it do so.

40. We have no doubt but that section 15 requires that each side's representatives make themselves reasonably available for negotiations. In the instant case there was a delay in negotiations between July 30th and August 28th, apparently caused primarily by vacations and the time spent by Mr. Hubert in preparing for and attending at certain proceedings before another panel of the Board relating to the company s Toronto Eaton Centre store. It is noteworthy, however, that prior to the instant complaint being filed, the parties had met on May 16, June 11, 14,20,22,25 and 28, July 4, 19,20,26,27 and 30, August 28, September 10, 13, 20 and 21, October 4,9, 12, 17, 18, 24 and 26, November 1,6, 14, 19 and 26. All of these dates, with the possible exception of November 1 9th when the parties met with officials of the Ministry of Labour, were agreed to between the company and the union. On July 25, 1984 the union did send a letter to Mr. Hubert (Exhibit #9) complaining about delays in negotiations. The letter did not, however, make any direct reference to the month of August but rather voiced a general concern with the timing problems related to conducting six different sets of negotiations. The letter again proposed that the parties bargain towards a single master agreement. (Exhibit #10 was Mr. Hubert's response.) In a letter to the company dated August 20, 1984 Mr. Collins did raise the fact that no meetings were held with respect to the Brampton store in August. (The August 28th negotiations were with respect to the Shoppers' World store.) Mr. Collins indicated that while delays in negotiations up to that point had been tolerated by the union, it would do so no longer. Thereafter negotiating sessions were held in fairly rapid succession until the union broke off negotiations on November 26th. Given these circumstances and particularly the large number of meetings that were held, we do not believe that the fact that only one meeting was held in August involved a breach of section 15. Before leaving this matter we would note that the union may well have been in a position to require that negotiating sessions with respect to each of the stores be held at reasonably frequent intervals, even if it meant that the parties required different spokespersons at the various sets of negotiations. The union did not, however, insist upon this type of procedure, in part no doubt because Mr. McKay was serving as chief union spokesman at the three Toronto stores and at Brampton.

41. With respect to the actual content of the company's proposals, the union contends that they indicate that the company was engaged only in surface bargaining:

It is therefore submitted that the proposals tabled by the employer are patently unreasonable and/or significantly devoid of business justification and thus support the inference of an attempt to frustrate agreement through surface bargaining, in violation of section IS of the Act.

In the alternative. . . it is submitted that the company's rigid insistence upon such proposals and its refusal to offer any concessions of value or reasonable alternatives or explanations, support an inference or an intent to frustrate agreement, in violation of section IS of the Act.

42. These contentions raise the important issue of whether the company is seeking through surface bargaining to frustrate the bargaining process, or whether it is simply engaging in hard bargaining. While we have no doubt that the company would rather not have to deal with the union, on the evidence there is no question in our mind but that the company is in fact prepared to sign collective agreements with the union. The company is seeking, however, to ensure that any such collective agreements contain terms favourable to the company, terms which will retain for management most of the flexibility it currently enjoys and which will not result in any increase in operating costs. The fact that the company has not made any major concessions in bargaining relates directly to the type of agreement management is seeking to negotiate. Section 1 5 does not, however, preclude a party from taking a firm position in bargaining. This point is made clear in the following excerpt from The Daily Times case, [1978] OLRB Rep. July 604, where the Board noted:

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

In the instant case, the company has taken firm positions in an attempt to secure favourable collective agreement terms. The mere fact that it has refused to make concessions acceptable to the union, does not, in our view, result in a conclusion that it is in violation of section 1 5 of the Act.

43. We turn now to the issue of whether certain specific company proposals were in violation of the Act. The union complains about the lack of wage schedules and job classifications in the company's written proposals prior to January 7, 1985. It will be recalled that the parties had initially concentrated their attention on non-monetary items, and that the issue of wages had received only scant mention in bargaining, except for an indication by the company that it did not intend to give employees a wage increase beyond the 7.8 per cent increase that it had already implemented. The evidence strongly suggests that the union's decision to break off negotiations on November 26, 1984 and engage in strike activity was not based primarily on the issue of wages, but rather was motivated by a failure to reach agreement on the non-monetary issues that the parties had spent considerable time in discussing, as well as the union's view that it would be best to call a strike during the Christmas shopping season. Given that the Act in section 1(1 )(c) defines a collective agreement as an agreement ". . . containing provisions respecting terms or conditions of employment. . ." as well as the importance of wages as a condition of employment, it is our view that except in the most exceptional of cases, an employer must be prepared to include employee wage levels in a collective agreement. The fact that Mr. Hubert on November 26, 1984 did not clearly state that the company was prepared to do so causes us some concern. However, given that the next time the issue of wages was raised the company did present a written proposal which would include employee classifications and matching wage rates in the collective agreement, we are, on balance, not satisfied that a breach of section 1 5 has been made out.

44. The union further submits that the manner in which the company dealt with the issue of remitting dues to the union involved a violation of section 1 5 of the Act in that it demonstrated both a refusal to recognize the union and an intent to frustrate agreement. It will be recalled that the company had agreed, as it was required to do pursuant to section 43 of the Act, to a collective agreement provision whereby it would deduct union dues from employee wages and remit them to the union. The company and the union had further agreed that the dues remittance cheques should be made payable to the union. The company, however, indicated they wanted to know who to address the envelope containing the cheques to. On November 6, 1984, the company proposed that the envelope be addressed to the union's financial secretary. Mr. McKay, however, indicated that it should instead be sent to the union's "local director". At the next meeting between the parties on November 14th, Mr. Hubert raised a question as to whether the "local director" was a local director for the International Union, or the director of a local. Mr. Collins, who had not been in attendance at the November 6th meeting, asked where the term "local director" had come from. When Mr. McKay indicated it had been his idea, Mr. Collins expressed the opinion that the union had better take another look at the matter. The matter was not discussed again until the parties met on January 7, 1985, at which time Mr. Hubert asked who the envelopes containing dues remittance cheques should be addressed to. The union's only response was that the identity of the local union director was none of his concern. Mr. Hubert then stated that since the union would not answer his question, the company would simply address the envelope to the union at large without naming anyone. Given the way this entire issue developed, and was resolved, we do not believe that it indicated a refusal on the part of the company to recognize the union or an attempt to frustrate the conclusion of a collective agreement. Rather, the issue appears to have arisen only because of some confusion (including confusion in the union's ranks) about how the company should address envelopes containing dues remittance cheques, and nothing more sinister should be read into the matter.

45. The union also complains about a company proposal that any collective agreement contain the following provision:

The Union agrees that there will be no Union activity of any kind or solicitation for membership on Company premises except as specifically provided for in this agreement.

The company contends that this proposal is necessary to prevent disruption of its retail operations. It is noteworthy, however, that the proposal is worded so widely that it would prohibit employees before and after work or on their breaks from approaching other employees away from the selling floor with respect to joining the union. This proposal takes on increased importance due to the fact that the union has dropped its original request that union membership be made a condition of employment.

46. The union contends that section 3 of the Act, which provides that every person is free to join a trade union and to participate in its lawful activities, guarantees employees the right during their non-working hours to solicit other employees at the work place to become members of the union. The cases indicate that employer no-solicitation rules which prohibit employees from soliciting union membership on company property during their non-working time are presumptively to be regarded as an unlawful impediment to employee self-organization, unless special circumstances make the rule necessary in order to maintain production or discipline. This issue was discussed at some length by the Board in The Adams Mine, Cliffs of Canada Ltd., case, [1982] OLRB Rep. Dec. 1767:

18. The workplace is therefore the most effective location for "union activity" to be carried out. A policy denying this forum to employees would obviously impair the effective exercise of statutory rights particularly the right of self-organization. On the other hand, company premises constitute private property and are established for the primary and important purpose of carrying on business activity. The above sections give some indication how the statute has attempted to balance these legitimate interests. Two lawful activities clearly contemplated within the scope of section 3 are the organization of a trade union and collective bargaining. See Jarvis v. Associated Medical Services Inc. (1961)' 61 CLLC ¶ 16,218 at p. 980. Section 64 provides that no employer and no person (reading selectively) shall interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union. Similarly. section 66(c) prevents an employer, among others, from seeking, by any kind of threat or by imposition of any kind of penalty or by any other means, to compel an employee to cease to exercise any other rights under this Act. An employer who prevents his employees from attempting to organize a trade union while they are on company premises by a broadly drafted no-solicitation rule backed by disciplinary action runs the risk of violating these sections. Sec Jarvis v. Associated Medical Services, supra, page 980; Audio Transformer Company Limited, 119693 OLRB Rep. Nov. 994 at 1002. This, of course, does not mean an employer is deprived by the Act of maintaining productivity or discipline or of securing his property from encroachment by strangers with whom he has no relationship. Section 71 makes it clear that no person is authorized by the Act "to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union". [our emphasis] The purpose of this section is to afford an employer an answer to the charge that he has interfered with a person's rights under section 3 of the Act by preventing that person from attempting to solicit an employee during working hours. The section recognizes the employer's bona fide interest in maintaining an efficient business enterprise and the fundamental obligation of employees to work in return for compensation. But section 71 does not speak to activities outside of an employee's working hours while on his employer's premises. Labour boards have consistently interpreted the phrase "working hours" to refer only to the period of time during which an employee is required to undertake his duties and responsibilities. Therefore the section does not apply to those periods of time an employee is on company property before shift, during coffee break, during lunch break, or after shift. This is so even if the employee is being paid for such time, otherwise an employer could prevent the exercise of statutory activity by the simple expedient of a money payment. The approach of the statute and this Board has been to create a meaningful balance between the statutory rights of employees and the proprietary and commercial interests of employers. See Jarvis v. Associated Medical Services Inc., supra; Audio Transformer Company Limited, supra; Jim Pattison Industries Limited, [1979] 2 Can. LRBR 517 at 520-21; Cominco Limited, [19811 3 Can. LRBR 499 at 503-504. See Notes, Reversal of N.L.R.B. Policy Regarding No-Solicitation Rules (1982), 34 Baylor L. Rev. 143 at 148. Because the workplace is a most appropriate theatre for membership solicitation, it has been considered reasonable and fair to construe break and lunch periods as non-working time belonging to employees to use as they see fit so long as they do not engage in disorderly conduct or adversely affect other legitimate business interests of the employer. Where they decide to use this time to engage in protected trade union activity, this statute and the remedies available under it apply. To this extent, property rights have been encroached upon by the statute. And while this is a factual issue in any particular case, union solicitation during non-working time will not generally interfere with the employer's legitimate management interests. Any interference must be real and constitute more than a minor annoyance or inconvenience.

Reference can also meaningfully be made to the decision of the British Columbia Labour Relations Board in Cominco Ltd., [1981] 3 Can. LRBR 499 where the Board concluded that to the extent a provision in a collective agreement limited the right of employees to engage in organizing activities during non-working hours on the employer's premises, the provision was in violation of a section of the British Columbia Labour Code similar to section 3 of the Ontario statute. Of some relevance also is the decision of the National Labour Relations Board in Meier & Frank Co. Inc. 26 LRRM 1081 which held that a rule which prohibits union solicitation by employees away from a store's selling floors before and after work and during luncheon and rest periods, did not bear a reasonable relationship to the efficient operations of the store's business, and hence constituted an unwarranted interference with employee rights.

47. The cases indicate that unless the company can establish special circumstances to justify a different result, its employees have a statutory right to engage in self-organizing activity on the company's premises outside of their working hours. In the instant case, the company did not advance any such special circumstances, except for a concern about the possible disruption of its retail operations. While this concern may well justify a provision prohibiting employees from approaching each other about union membership on the sales floor, even on their own time, it would not justify a blanket prohibition against union solicitation by employees off the sales floor before and after work and during luncheon and rest periods. Nevertheless, the company continues to press the union to agree to a collective agreement provision which would have this result. We view it as improper and a breach of section 1 5 for the company to attempt to use its bargaining power to achieve such a result. Accordingly, the company is directed to amend its proposal so as to make it clear that it is not seeking to require the union to agree to a collective agreement provision which contains a blanket prohibition against employees approaching each other to solicit union membership away from the sales floor before and after work and during luncheon and rest periods.

48. The union contends that the company's proposal which would amend the scope of the Brampton bargaining units involved a violation of section 15 of the Act. It will be recalled that with respect to the Brampton store the union originally sought to expand, and the company to contract, the scope of the bargaining units. The same appears to have been true at certain of the other locations. On or about October 15, 1984 the union advised the company that it was no longer seeking to expand the scope of the bargaining units. The evidence does not clearly indicate one way or the other as to whether after this date, but prior to the strike, the parties actually discussed the matter. It is clear that the issue was not discussed on November 26, 1 984, the date the union broke off negotiations. Indications are that after the commencement of the strike the matter was first discussed at the mediation session held on January ) 1985 At this session, the union indicated that while it was willing to look at possible accommodations with respect to the Scarborough business centre, it was not prepared to depart from the unit descriptions set out in the Board certificates. Later that same day the company handed the union a note indicating that it was prepared to abide by the units described in the Board's certificates. With respect to the Scarborough business centre, the company requested that the union give a response to the company's proposal that the business centre be excluded from the Scarborough bargaining units.

49. Although parties are free to discuss and agree upon changes to bargaining unit descriptions set by the Board, it is not an issue that can become the subject matter of a strike. In the Carpenters Employer Bargaining Agency case, [1978] OLRB Rep. Aug. 776, the Board commented on the matter as follows:

……Just as an employer cannot use its economic leverage to bargain out of established bargaining rights, a trade union cannot use its economic leverage to attempt to extend bargaining rights. Such demands, in the Board's view, must be removed from the bargaining table once a strike or lockout is imminent, or in progress. If such demands are not removed at this time, the party pressing such demand must be held to have breached the duty to bargain in good faith.

In the instant case the company was not entitled to press its proposals with respect to the description of the bargaining units to impasse. However, it is far from clear that it did so. The issue of the bargaining unit descriptions was not discussed immediately prior to the commencement of the strike. The first time the matter was discussed after the strike began was on January 2, 1985, and on that date the company indicated it was prepared to abide by the unit descriptions contained in the Board certificates. In light of these developments, we do not believe that the company's conduct can properly be characterized as having been in violation of section 15.

50. The final contention raised by the trade union relates to the company's refusal to offer its unionized employees wages and benefits any greater than those currently being received by non-union employees. It is the union's contention that the company's refusal is motivated by a desire to discourage other employees from joining trade unions and as such breaches both sections 15 and 64 of the Act. The union expressed its position as follows:

Finally, it is our submission that the respondent's negotiating position that it was and is not prepared to grant organized employees better working conditions than unorganized employees in the company because it would encourage the latter to form trade unions and participate in collective bargaining has a chilling effect on and interferes with the exercise of section 3 rights, chills contemporaneous and future organizational activity by the complainant and other trade unions, and interferes with the representational rights of the complainant. As such, it is submitted that the aforementioned position is contrary to both the fundamental purpose and sections 15 and 64 of the Act.

As previously indicated, the legislative intent behind the Act, as stated in its preamble, is to "further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining" (emphasis added). The proposition that an employer can adopt a negotiating position at the bargaining table either designed or informed, in whole or in part, by a desire to frustrate, inhibit or interfere with the formation of trade unions, in our submission, is clearly counter to sections IS and 64 of the Act.

To take the position that a wage proposal is fair or reasonable in the opinion of the employer is one thing. To adopt that position having regard to the potential of future organization by its employees is quite another, and in our submission, unlawful. We submit further that, particularly in view of the very detailed bargaining preparation engaged in by the respondent, the evidence of the respondent's witness that this consideration (impact of parity on future organizing) was not in his mind from the outset and was not a firm operating principle, is simply not credible. We invite the Board to draw the conclusion that the respondent had unlawfully determined under no circumstances to grant to unionized employees wages, benefits, or terms and conditions of employment superior to those it was prepared to grant to unorganized employees. It is submitted that this rigidity, apart from any other reason, makes the result in Canada Trustco inapplicable.

51. Mr. Hubert denied that the company's goal was to discourage other employees from joining a trade union. He testified that the company regarded the current level of benefits and wages as fair and competitive, although he also admitted that the company was concerned about what the impact would be on other employees if the company were to agree to better terms for its unionized employees. Nothing in the Labour Relations Act requires an employer to agree to wages and employee benefits for unionized employees that are superior to those being received by non-unionized employees. See: Canada Trustco Mortgage Company, [1984] OLRB Rep. Oct. 1356. Neither is there any provision which prohibits an employer when formulating its bargaining position to take into account the likelihood that improvements in the terms of employment for one group of employees will likely impact on other groups. Indeed, logic suggests that this is a consideration frequently taken into account by employers, since an improvement in the employment conditions of one group of employees will logically lead to calls for similar improvements from other employees of the same employer, whether they be unorganized or included in a different bargaining unit. Further, the fact that an employer refuses to give more to unionized employees, does not, by itself, necessarily mean that the employer is seeking to interfere with the formation of trade unions. Such a conclusion might be justified if the terms being offered to organized employees were inferior to those being enjoyed by comparable non-union employees, for this would indicate an intent to punish employees because they had selected trade union representation. Such, however, is not the case here. In our view, the facts of this case fall short of demonstrating that the company position on wages and benefits is in violation of the Act.

52. In summary, we are satisfied that the company has violated section 15 of the Act by insisting on a collective agreement provision containing a blanket prohibition against employees soliciting each other with respect to union membership on company premises, but away from the sales floor, before and after work and during luncheon and rest periods. The company is to amend its proposal accordingly. We have found no other specific breach of the Act on the part of the company. Further, we are not satisfied that the company conduct when viewed as a whole demonstrates any additional violations of the Act. We would stress, however, this conclusion is not meant to reflect on the "fairness" or otherwise of the bargaining position adopted by the company. Section 15 of the Act provides a legal standard against which the Board is to measure the bargaining conduct of parties, it does not set out a moral standard. Moreover, the Act does not give the Board a general authority to decide the contents of collective agreements. That is a matter left to the parties. On the evidence we are satisfied that the company is prepared to enter into collective agreements with the union, although those collective agreements would preserve to management many of the rights it now possesses and would not give to unionized employees any greater benefits or wages than those currently enjoyed by unorganized employees. For its part, the union is not prepared to agree to the terms proposed by the company, but instead seeks to obtain better conditions of employment for the employees it represents. If a settlement is to be reached, it will be because one or both of the parties re-appraise their positions in light of the importance they give to their objectives, and the economic costs they are able to inflict on one another.

53. Given all that has occurred to date, we believe it would be useful for the parties to meet with a Ministry of Labour mediator to assess whether they might now be able to agree on the terms for their collective agreements. To this end, the Registrar will forward a copy of this decision to the Director of the Ministry of Labour's Conciliation and Mediation Services. The Director is requested to invite the parties to meet with himself, or with someone from his office, for the purpose outlined above.

DECISION OF BOARD MEMBER E. G. THEOBALD;

1. I dissent from the majority decision for the following reasons.

2. There are serious problems relating to the majority's presentation of relevant facts and to its application of legal principles. In respect to factual determinations, very significant evidence has been unjustifiably minimized. I am also concerned that the majority places a gloss on certain facts which unjustifiably undermines the thrust of the union's complaint to the obvious benefit of the respondent. When one re-evaluates a number of these factual issues it is apparent that the union has a very strong claim for a finding that Eaton's has engaged in surface bargaining. In respect to the majority's legal conclusions, the legal analysis avoids the union's allegation that surface bargaining has occurred. Each of the union's allegations, raised to support a surface bargaining finding, is assessed independently, with no serious effort being made to review the totality of Eaton's collective bargaining conduct. At best, one finds in paragraph 52 a single sentence which states that the totality of Eaton's conduct does not constitute any additional violation of the Act. This is a conclusion totally unsupported by legal analysis and certainly questionable in light of both the majority's determination that at least one breach of section 1 5 occurred and the concerns that it expressed on other issues such as Eaton's prolonged unwillingness to include wages and job classifications in a collective agreement. In order to substantiate a surface bargaining complaint, it is not necessary to prove animus nor is it necessary to demonstrate that separate aspects of bargaining conduct constitute per se violations of section 15. Such findings will strengthen the inference that surface bargaining has occurred, but even in the absence of such indicia of bad faith, the totality of bargaining conduct may still lead to the inference that a party does not wish to sign a collective agreement. (See The Daily Times, [1978] OLRB Rep. July 604; Reed & Prince Mfg. Co., (1981) 28 L.R.R.M. 1608.) I suggest that if the majority's view in this decision is followed in future cases, it will be virtually impossible to substantiate a surface bargaining complaint without demonstrating animus or a range of specific violations of the Act.

3. Turning to the evidence, it is essential to review a number of matters which receive inadequate attention in the majority decision. First, I would emphasize that Mr. Hubert stated in examination-in-chief that if Eaton's were to improve wages and benefits for its unionized employees, this "would simply encourage employees in our other stores to organize". The significance of this statement should not be underestimated; it not only undermines the company's justification for its position on wages but it also leads directly to the inference that Eaton's overall bargaining position has been influenced throughout by a purpose which conflicts directly with the public policy outlined in the preamble to the Labour Relations Act, that being to further harmonious labour relations in Ontario by encouraging collective bargaining. In cross examination Mr. Hubert acknowledged that Eaton's would prefer to operate union-free but he denied that its position on wages and benefits was designed to achieve this effect. Although the majority apparently accepts Mr. Hubert's testimony on this point (see W51). in my view it is simply not credible and should not be given any weight.

4. Second, the majority decision places little emphasis on the fact that the union filed its unfair labour practice complaint early in December and that hearings into the complaint began in mid-December. These dates become significant because the majority decision relies heavily on the new bargaining positions adopted by the company in negotiations on January 2 and January 7, approximately three weeks after the start of the hearing and remarkably close to the completion of evidentiary submissions. These negotiations resulted largely from the initiatives of this Board and this raises some very serious concerns about the curative effect of alterations by Eaton's in a number of its bargaining proposals at this late date and under these circumstances. Equally important is the obvious prejudice to the union as a result of entering into these negotiations. The fact that it agreed, in good faith, to meet again with the company should not rebound to its disadvantage in the determination of this complaint.

5. Third, I would note that evidence presented at the hearing indicated that the company's position on benefits appears to be influenced by its "feed back" system whereby the benefit package available to Eaton's employees is affected by the submissions of individual employees across the country. This suggests to me that Eaton's refusal to give more in the way of benefits to its unionized employees, when combined with this procedure for arriving at a benefits package, makes it impossible for the union to bargain on benefits, these being determined essentially by Eaton's direct negotiations with its non-unionized employees.

6. Fourth, I must comment on a finding of fact of which, although correct, obscures more than it illuminates. The majority decision notes that approximately thirty bargaining sessions took place until the union went out on strike. Later this is used to virtually determine the issue of whether the unavailability of Eaton's for bargaining in August constituted a violation of section 15 (see ¶40). This approach ignores that these bargaining sessions took place at six different locations and were spread out over a period of roughly seven months at Brampton and approximately five months at the other five locations. When this fact is viewed in the context of Eaton's rigid insistence that bargaining be conducted at each store, the number of actual bargaining sessions is considerably less impressive than might appear on the surface. On average, there was only one bargaining session per month at each location. Without question, more frequent bargaining occurred at Brampton, but conversely, less took place at the other locations.

7. At the outset, I adverted to the "gloss" which the majority places on a number of its factual conclusions. I indicated that the tone of the majority decision subtly undermines the thrust of the union's allegations and in doing so unjustifiably enhances the company's position. First, I would refer to the majority's conclusion in paragraph 40 that the union did not insist on more frequent bargaining sessions after the August delay, "in part no doubt" because McKay was already serving as chief spokesperson at four locations. The evidence put forward does not support the conclusion that either Mr. McKay, or other union personnel, would not have been available if more frequent sessions were to have been held. This conclusion also conflicts with the evidence that, on at least two occasions during the summer, the union specifically expressed its concerns in writing about the infrequency of negotiations. Nor does this conclusion stand comfortably with the fact that, on average, only six bargaining sessions were being held per month for all six locations. (No more than 7 occurred in any single month).

8. 1 also have strong reservations about the appropriateness of the majority's statement in paragraph 6 that it is "noteworthy" that the company did not commit any unfair labour practices during the certification drives at the six Eaton's stores. It might well have been noteworthy if the company had engaged in unfair labour practices, (see Radio Shack, [1979] OLRB Rep. Dec. 1220, in U74), but I do not see why they should be credited for behaving in a manner which is mandated by law. While the commission of unfair labour practices, either during an organizing drive or during collective bargaining, may strengthen the inference that a party has been bargaining in bad faith, a finding of surface bargaining is not premised on the existence of conduct which, standing alone, would violate the Act.

9. I also find particularly objectionable the majority's treatment of Mr. McKay's statement that it seemed that Mr. Hubert had asked five hundred questions during the initial bargaining sessions at Brampton. It was obvious that Mr. McKay was merely conveying his impression of the course of bargaining at Brampton. The majority's "finding", that the actual number of questions asked fell far short of five hundred, strikes me as an offensive characterization of the matter which tends to convey an impression that the general veracity of union testimony might be suspect.

10. The jurisprudence which applies to this case is not in dispute. The majority decision generally accepts the legal principles which, in the union's submission, govern the relevant facts. However, as I have already noted, there is no serious attempt to consider the totality of the company's bargaining conduct. While this, in itself, is a fatal shortcoming, a number of the union's allegations, even standing alone, should invite findings that Eaton's has breached section 15. When viewed in concert, the allegations support a conclusion that Eaton's has engaged in surface bargaining.

11. The union has argued that it is incumbent on the parties to a collective bargaining relationship to attempt to devise bargaining procedures which will facilitate the signing of a collective agreement. The Board itself has stated in The Citizen, [1979] OLRB Rep. March 177 (in ¶43) that:

section 14 (now section 15) censures not only tactics destructive of the union's role as a bargaining agent ... but also tactics destructive of the collective bargaining process itself even where there exists on both sides a bona fide intention to conclude a collective agreement.

The majority is of the view that Eaton's was prepared to sign collective agreements with the union, and although I reject that assessment of the evidence, it is still open to find a breach of section 1 5 if the company has insisted on a bargaining process designed to frustrate the reaching of an agreement. I have no doubt that this is, in fact, what occurred. Although the company undoubtedly has the right to negotiate separate collective agreements for each of its stores, its rationale for insisting that it be able to bargain with the local committees at each location strikes me as disingenuous. Eaton's says it should be able to attempt to persuade these committees that its proposals are reasonable. To do this may require stating its position directly and forcefully to the local committees. In principle I have no disagreement with this argument; dialogue and persuasion are integral parts of the collective bargaining process. But inasmuch as the actual negotiations involved essentially the same spokespersons engaging in the same dialogue at six different locations for five to seven months, then different considerations arise.

12. The union has a right to expect that an employer will make reasonable arrangements to accommodate the demands of collective bargaining. If the employer chooses to rely entirely on a single spokesperson to conduct its negotiations, it is essential that that individual be reasonably available. In this instance, Eaton's relied exclusively on one individual to negotiate six different collective agreements. It then insisted that negotiations occur separately when it was obvious that the physical demands arising from six separate sets of negotiations would obviously limit Mr. Hubert's availability. To exacerbate the problem, Mr. Hubert was virtually unavailable for all of August. In the face of the union's repeated attempts to design a process more conducive to fruitful collective bargaining, the company's insistence on bargaining separately with each local committee is unjustifiable.

13. The company's interest in communicating directly with the local bargaining committees would easily have been accommodated by a process which involved all of the committees sitting at a common bargaining table, even if the end result was six separate collective agreements. When the union, in fact, made such a proposal to Mr. Hubert on November 19, he rejected it. He did agree, however, to "consider" two other union proposals designed to bring some members of the local committees into the Brampton bargaining sessions. When, in January, the union decided to act unilaterally by bringing members of the local committees to the Brampton negotiations, Mr. Hubert then responded that the company could not dictate to the union the composition of its bargaining committee. Eaton's longstanding refusal to agree to some more centralized form of bargaining process appears patently unreasonable in light of its position in the January negotiations. If, at that point, it could not "dictate" to the union who it could or could not bring to the bargaining table, why was it necessary to "consider" a similar proposal in November? The refusal in November to do more than consider a sensible proposal designed to facilitate bargaining is not indicative of good faith.

14. The decision notes in paragraph 40 that the union may well have been in a position in September to "require" more frequent negotiations at each of the stores. As mentioned earlier, the majority feels the union did not do so because Mr. McKay would not have been free to conduct all of the bargaining sessions. I reiterate that the evidence does not support this finding, especially in light of the fact that no more than seven negotiating sessions occurred in any one month. The evidence does show, however, that the union expressed its concerns about the delay in negotiations first in July and then again in August. It is not clear what the majority feels the union could have done to insist that more regular bargaining sessions take place. The obvious inference I would draw from the majority's comments in paragraph 40 is that the union could have maneuvered itself into a position from which it could have made a successful unfair labour practice complaint. This, I suggest, is a totally unreasonable reading of the duty to bargain in good faith. The Act obligates the parties to a collective bargaining relationship to bargain with the shared intent of reaching a collective agreement. It is clearly improper for one of those parties to conduct its bargaining with an eye towards laying the foundations for a successful failure to bargain complaint. This, however, is precisely the inference which one makes from the majority decision.

15. The union's procedural allegations, standing alone, are sufficient to demonstrate a failure to bargain in good faith. The evidence shows that the union made repeated efforts both to speed up negotiations at the individual stores and to devise a bargaining process which might facilitate regular dialogue between the parties. Eaton's made no such efforts. Instead it insisted on a process which could only frustrate collective bargaining. While its desire to place its proposals directly before the local bargaining committees may be justifiable, that could easily have been realized in a more centralized forum. Having repeatedly refused to agree to such a process, it was incumbent on the company to make itself available for bargaining on a regular basis at each of the stores. This it failed to do. I conclude that Eaton's intransigent position on the bargaining process evidences a lack of good faith and results in a breach of section 15.

16. The union has also alleged that the content of a number of Eaton's bargaining proposals was so "patently unreasonable" or "devoid of business justification" that it supports an inference of surface bargaining. The majority did find that the company's insistence on a broad no-solicitation rule breached section 15. Similar conclusions should have been drawn in respect to the company's position on wages, benefits and job classifications and on proposed alterations to the bargaining unit descriptions.

17. The majority expresses "some concern" over the fact that on November 26, Mr. Hubert would not state clearly whether or not the company was prepared to include wages and job classifications in a collective agreement. The majority notes that "except in the most exceptional circumstances, an employer must be prepared to include employee wage levels in a collective agreement". It appears however that the concern over this position has been alleviated by the employer's offer on January 7 which had the effect of including these items in an agreement. It is inexcusable to permit the events of January 7 to intrude on its consideration of the reasonableness of Eaton's position on wages and job classifications. The effect of the majority decision is to penalize the union for entering into the January negotiations; in doing so the union obviously prejudiced its case before this Board. This is a result which will not be lost on the labour relations community. It is enough that the union placed the wage and job classification issue squarely before Eaton's on November26 and that the latter failed to respond. Eaton's did not alter this stance throughout the strike and when movement finally came on this issue, it was during the course of negotiations which were encouraged by this Board. It is repugnant to the notion of good faith that Eaton's now be credited with a change in position which only took place because of the Board's initiatives and which occurred long after the inception of hearings on the failure to bargain in good faith complaint. I conclude that Eaton's position on wage and job classifications has breached section 1 5 and is not cured by any shift in position on January 7.

18. I have previously alluded to the fact that the benefits package available to all of Eaton's employees is influenced by its employee "feed back" system. By virtue of the fact that Eaton's has refused to give its unionized employees wages or benefits which are superior to those of its non-unionized employees, it is virtually impossible for the union to even negotiate a benefits package. While a company may be under no obligation to pay its unionized employees more than its non-union employees, this does not remove the obligation to bargain on the issue of wages and benefits. If, however, it insists that these matters will be largely influenced by the wishes of its non-union employees it has abrogated its duty to bargain. But the matter does not end there. Mr. Hubert stated not only that Eaton's was under no obligation to provide more in the way of wages and benefits to its unionized employees than it gave to its non-union employees; he went on to add that if it did so "this would simply encourage employees in our other stores to organize." This is simply a patently improper consideration for the company to rely on in formulating its position on wages and benefits. An employer who develops a bargaining position on wages and benefits which is avowedly informed by a concern that giving more to its union employees may encourage its non union employees to organize, interferes with the rights of non-union employees to select a collective bargaining representative. By allowing illegal considerations to intrude on the bargaining process, the employer also violates the duty to bargain in good faith. I conclude that Eaton's stated rationale for refusing to give any more in the way of wages and benefits to its unionized employees than to its non-unionized employees constitutes a breach of section 64 and section 15.

19. The final matter is the issue of revising the scope of the bargaining unit descriptions. Although both parties sought to revise the bargaining units, it is clear that on October 15, the union informed the company that it was dropping its proposal to expand the scope of the bargaining units. The company's proposal remained on the table. The issue arose again in the January 2 negotiating session and when the union indicated firmly that it was not willing to change bargaining unit language, with the possible exception of the business centre in Scarborough, the company agreed to "abide" by the descriptions in the Board's certificates. The majority feels that Eaton's did not take this issue to impasse but I would emphasize the language in Carpenters Employers Bargaining Agency, [1978] OLRB Rep. Aug. 776 (in ¶ 18) where the Board observed that:

……Just as an employer cannot use its economic leverage to bargain out of established bargaining rights, a trade union cannot use its economic leverage to attempt to extend bargaining rights. Such demands, in the Board's view, must be removed from the bargaining table once a strike or lockout is imminent, or in progress. If such demands are not removed at this time, the party pressing such demand must be held to have breached the duty to bargain in good faith.

Similarly, in Toronto Star Newspapers, [1979] OLRB Rep. May 451, (in ¶ 10) the Board stated that:

While it is permissible for the parties to negotiate the description of the bargaining unit, the strike or lockout cannot be used to either augment or erode established bargaining rights. Bargaining demands having such effect, therefore, must be removed from the bargaining table once a strike or lockout is imminent or in progress.

20. It is difficult to avoid the conclusion that it was incumbent on Eaton's to take its proposed revision of bargaining unit descriptions off the table once the strike ensued. This could easily have been accomplished simply by providing the union with written notification that it was withdrawing the proposal. The fact that it did not do so and, instead, left this demand outstanding for another five weeks should be determinative of the issue. As I have stated already in respect to several matters, I would not allow the company's position taken in the January meetings to cure the failure to drop the bargaining unit issue once the strike began.

21. In conclusion, I find that the company has negotiated on the issues of wages, benefits, job classifications and bargaining unit descriptions in a manner which violates the good faith obligation stipulated in the Labour Relations Act. It has done this as well on the no-solicitation issue. When these substantive proposals are placed alongside a rigid insistence on a bargaining process which effectively frustrated rather than facilitated collective bargaining, the inference is unmistakable that Eaton's has engaged in surface bargaining.

22. Based on these conclusions, I would have suggested the following remedial orders:

1. The respondent shall cease and desist from its unlawful conduct and henceforth shall bargain in good faith and make every reasonable effort to make a collective agreement.

2. The respondent shall place a notice in each of the six workplaces affected by this complaint indicating that this Board has determined that the respondent has failed to bargain in good faith.

3. In order to ensure that the striking employees are properly informed about this Board's determination, the respondent shall mail, at its own expense, a similar notice to each employee in the affected bargaining units as of the date of this Board's decision.